How Qualified Immunity Would Have Protected the Tulsa Mob

Last week, the U.S. Supreme Court declined to hear yet another case in which lower courts shielded law enforcement officials from paying damages for violating the rights of suspects — in this case, the shooting death of a Black man whose only offense was sleeping in his car.

The reason is qualified immunity, a doctrine that has been much in the news over the past year. I’ve long been an opponent of the judge-made doctrine, which protects government officials from most civil lawsuits for violating constitutional rights, unless the right in question is clearly established — meaning, as the Supreme Court explained in 2015, that “every reasonable official would have understood that what he is doing violates that right.” To take an example, should a prison guard brutalize an inmate, that’s a terrible thing, but qualified immunity means that the prisoner won’t get damages just because a reasonable guard would have understood that brutalization is wrong; a reasonable guard would have to know that the particular brutalization violated the inmate’s constitutional rights.

This isn’t, however, another column about why we should abolish qualified immunity. It’s an effort to view the doctrine through the lens of history.

This Memorial Day will mark 100 years since the outbreak of the Tulsa massacre, often referred to as the bloodiest day of anti-Black violence in U.S. history.  On May 31, 1921, White rioters attacked the neighborhood known as Black Wall Street, burned most Black businesses and many homes to the ground, and were responsible for dozens (some say hundreds) of murders. No one was ever convicted.

There’s a good reason to remember that bloody anniversary as we consider qualified immunity. Many members of the Tulsa mob had been deputized by law enforcement and so were acting in an official or semi-official capacity. Had the deputized rioters been sued, qualified immunity might have shielded them from liability.

Seriously.

Consider how the violence began. A White mob gathered outside the courthouse, intending to lynch a Black man suspected of assaulting a White woman. A smaller group of Black men hurried downtown to prevent any attack. The White mob armed itself, many given weapons by the police. The Black men armed themselves in return. A shot rang out, and the riot was on. The fighting — called a “race war” by newspaper editors — lasted two days. By the time order was restored, the Black neighborhood was a smoking ruin.

The press went immediately into excuse-making mode. A Tulsa newspaper declared that had Black citizens not tried to take the law into their own hands, the whole thing would have been avoided. The Fort Worth Star-Telegram told its readers that violence was inevitable once “propaganda” led the city’s Black population to assemble in so threatening and lawless a fashion. Besides — as a Kentucky paper took pains to note — Tulsa’s Black community “had been warned several months ago that responsibility for any trouble would rest upon the negroes.”

Then there was the indelicate matter of what conclusions to draw. The Baltimore Sun announced that blame rested with “radical Negro leaders.” The Tampa Times found a salutary lesson for the aforesaid radicals: that they “can never hope to win in any clash with the whites anywhere in the country.” And after the all-White grand jury indicted dozens of Black citizens and no White ones, an Arkansas paper declared that henceforth, anyone who blamed Tulsa’s White community for the violence was “denying facts.” Yes, one local judge declared that “Most of the damage was done by white criminals, who should have been shot and killed” — but nobody took him seriously.

What does all of this have to do with qualified immunity? Imagine that the deputized White rioters, having been sued for damages, made all these arguments in their own defense. They might insist that they had no way of knowing that they were violating anyone’s rights. All they knew was that their community was under assault by radical insurrectionists and that as sworn officers they had to take all necessary measures to protect lives and property. 

That we’d loudly condemn this line of reasoning now doesn’t mean that the White mob couldn’t have believed it then. And if their belief that they were violating nobody’s rights was reasonable — not legally correct but reasonable — the doctrine of qualified immunity would protect them from suit. Such is the absurdity of the doctrine.

In his book about the Tulsa massacre, the legal historian Alfred Brophy reminds us that the sheriff charged with protecting the prisoner later said he wished he’d killed the first three White men who crossed the threshold of the courthouse in search of their prey. The sheriff swore that if another mob ever tried to enter the courthouse, he would “kill the first man who comes inside the building, and keep on killing them as fast as they come.”

The nation’s searing racial history is awash in terrible ironies. One imagines that had the sheriff carried out his pledge and faced subsequent lawsuits from the families of the rioters he killed, qualified immunity would have shielded him too. Many of us might consider him deserving of its protection. But there’s no practical way to tweak the doctrine so that it allows lawsuits against those whose acts we dislike, while protecting those we cheer. Nor would we be wise to try.

Though the doctrine of qualified immunity has pros and cons, my view remains that, on the whole, we’d be better off without it. If you think I’m wrong, ponder all those deputized rioters in Tulsa.

Alas, there is much competition for first place in this horrific ranking. The most likely is the Fort Pillow massacre on April 12, 1864, in which Union troops, most of them Black, surrendered, only to be slaughtered by rebel forces under the command of Nathan Bedford Forrest.

An actual lawsuit filed in 2003 by survivors of the riot was dismissed because the statute of limitations had run.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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