There’s a good argument to be had over whether police officers should be held to the same legal standards as the rest of us, or, given the high stakes that come with those powers, we should hold them to a higher standard — complete fidelity to the letter and spirit of the law. But in a free society, there is no real argument that the officials we entrust with these powers should be held to a lower legal standard, that we should let them pick and choose which laws they want to follow. History cries out with warnings about what happens to such societies. We call them police states.

For a brief period last year, there was some hope that the Supreme Court might walk back its 50-year jurisprudence on qualified immunity, the doctrine that makes it nearly impossible to recover damages when police violate the Constitution. After the court ruled last term in favor for the plaintiffs in two cases involving horrific abuse by prison guards, there was some hope that perhaps the court would finally begin to take seriously its role as guardian of the Bill of Rights. The court snuffed out those hopes last week, when it unanimously overruled two federal appeals courts and granted qualified immunity to police officers in two cases.

To fully grasp the court’s abdication of its responsibility here, it’s helpful to delve into the history of qualified immunity. Qualified immunity isn’t in the Constitution. It isn’t in the U.S. Code. It is judge-made law. It is judicial activism, by any definition of the term.

Three years after the Civil War ended, the country ratified the 14th Amendment, which prohibitsthe states from depriving any person of “life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” But in the former Confederate states, there was little will to enforce those protections. So in 1871, Congress passed Section 1983 of the U.S. Code, which allows those whose rights have been violated by state and local officials to sue for damages in federal court.

The century that followed the enactment of Section 1983 brought widespread violence and terrorism against and the lynching of black Americans. Law enforcement officials, prosecutors, politicians, and judges either feigned obliviousness to the violence or actively participated in it. The Supreme Court encouraged that continued subjugation in 1896 with its infamous 7-to-1 decision in Plessy v. Ferguson. Importantly, that ruling didn’t merely allow private businesses to discriminate, it allowed state governments to compel segregation, and to punish any private entity that wished to treat everyone equally.

This history is important because the case in which the Supreme Court created qualified immunity — Pierson v. Ray — is inseparable from the court’s now universally-recognized failing in Plessy. That case began in the summer of 1961 when a group of Episcopal priests decided to participate in the Freedom Rides, the bus tours that took Black and White activists across the South to fight forced segregation. The priests gathered in New Orleans in September to embark on a planned route through Louisiana, Mississippi and Tennessee, ending in Detroit.

While in Mississippi, the priests split into smaller groups and planned separate routes to maximize their impact. Waiting on a bus just outside of Jackson, Miss., 15 of the priests, three of whom were Black, entered a segregated cafe. Two police officers ordered them to leave. When they refused, the officers arrested them under a vague Mississippi law permitting police to arrest any group of people who threatens a “breach of the peace.” The clergymen were convicted and sentenced to four months in jail. On appeal, their arrests were deemed illegal and their convictions were overturned. They subsequently sued under Section 1983.

This was the precise sort of constitutional violation that Section 1983 was passed to address. Local state authorities had refused to recognize the 14th Amendment rights of Black priests to be treated equally. And yet they lost.

The U.S. Court of Appeals for the Fifth Circuit ruled that by merely participating in the Freedom Rides, the clergymen had knowingly placed themselves in harm’s way, and therefore were ineligible for damages. The court also ruled that though the arrests and law were subsequently determined to be unconstitutional, the police could not have known that at the time, and therefore couldn’t be held liable.

In 1967, the Supreme Court upheld the Fifth Circuit’s decision, ruling 8 to 1 in favor of the police officers. Chief Justice Earl Warren wrote in his majority opinion, “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”

This was a canard. The Mississippi law did not require the police to arrest the priests, who were fully within their constitutional rights. And in the decades to come, the federal courts would rule again and again that police officers and other state actors have no duty to protect those they serve, even in the face of a direct and specific threat, and therefore can’t be sued when their failure to arrest results in injury or death.

A month after the court invented qualified immunity in Pierson v. Ray, police in Mississippi killed a black man named Benjamin Brown when they randomly fired into a group of protesters. That summer, race riots broke out throughout the country — including in cities such as Detroit, Newark, New York, Cincinnati and Washington. The Kerner Commission would later cite police brutality as a key instigator of the violence. And, of course, police brutality has continued to inspire protests and riots in the decades since, up to and including the killing of George Floyd in Minneapolis in 2020.

In my next column, I’ll look at the court’s qualified immunity cases between Pierson v. Ray and last week’s decisions. But in some ways, to summarize Ray is to summarize all those subsequent rulings. Collectively, they’ve created a through-the-looking-glass realm of jurisprudence that not only excuses police violations of constitutional rights, not only grants a police an exception to the axiom that “ignorance of the law is no excuse,” but actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.