Lynette Christmas still has nightmares about the day that forever changed her life. It was Valentine’s Day of 2016. Christmas was pulled over in Harris County, Georgia for a routine traffic violation. The officer, Deputy Thomas Pierson, gave her a warning and sent her on her way. But minutes later, he pulled her over for a second time.
This time, he sexually assaulted her.
“I can feel the day and what the air was like. The smell of the air. When he was dragging me up by the car,” Christmas told local station WSBTV. “And as he was leaving, he told me he was going to kill me.”
Pierson is now serving an 8-year prison sentence. To some, this might sound like justice. Rape cases have a notoriously low clearance rate in the country, and police officers are rarely sent to prison for their crimes.
But Christmas would not call this justice.
According to Christmas, Pierson was accused by many other women of inappropriate conduct during traffic stops. Those women filed reports long before Christmas was assaulted, but nothing was done about them. Pierson was also involved in the death of a teen during a traffic stop. Clearly, there were many indicators that Pierson posed a threat to the general public for some time, yet his superiors, the police department, and the county did absolutely nothing to intervene.
In Christmas’ eyes, the failure of Pierson’s superiors to hold him accountable in the line of duty makes them culpable for the crimes against his victims as well. So, she sued the county, the Sheriff, and Pierson himself.
But in March, a judge ruled that the lawsuit could not move forward, because the defendants all enjoyed “qualified immunity.”
What is Qualified Immunity?
For those unfamiliar, qualified immunity is a court doctrine that the US Supreme Court essentially pulled out of thin air in the 1960s—in a move many would call judicial activism. It is not grounded in the Constitution and has no legal foundation. Yet it has been the law of the land for nearly 60 years.
Because of qualified immunity, Americans are unable to sue government actors—all government actors, not just police officers—and hold them accountable for their actions unless a court has previously ruled their specific act was unconstitutional in another case.
Christmas wants her day in court. Not just against Pierson, who is now jobless and financially unable to pay restitution, but against the department and the county who enabled his actions. But none of them can be held civilly liable thanks to qualified immunity.
“The sheriff is covered, and the county is covered under qualified immunity,” says Christmas. “I shouldn’t be responsible for the medical bills and the damage that was done to me,” she said.
One might assume that a court would have found cops sexually assaulting women during traffic stops to be unconstitutional at a prior point in history, but that assumption would be wrong. Qualified immunity creates a perpetual Catch-22 where no case can proceed because no prior case has proceeded.
As a federal judge quoted by the Equal Justice Initiative explained, “Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered because no one has answered them before. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability.”
That is why a judge ruled against Christmas’ lawsuit.
Restitution vs. Retribution
The fact that qualified immunity protects government agents from civil liability (as opposed to criminal prosecution) is what makes qualified immunity an especially unjust doctrine. Justice should primarily be about making victims whole, not merely incarcerating perpetrators. And qualified immunity prevents victims from that very thing, permanently blocking them from the restitution owed them when their government violates their rights.
In The Ethics of Liberty, Murray Rothbard wrote, “The idea of primacy for restitution to the victim has great precedent in law; indeed, it is an ancient principle of law which has been allowed to wither away as the State has aggrandized and monopolized the institutions of justice.”
As our carceral state has grown, and government coffers and authority grow right along with it, many have come to see justice as retribution. Not only has this compounded the trauma that often leads to violence and criminal activity amongst offenders, it has also left victims and their families with false promises of closure and a lack of the actual services they may need to heal.
In Christmas’ case, she needs money to cover her medical bills. But because the Supreme Court and Congress continue to shield government actors from accountability to the people they are paid to serve, she is unlikely to see a dime.
For a system to truly uphold rights, we must have a court system that is capable of securing restitution for victims when those rights are violated—especially when they are violated by the very people we have paid to protect us.
Qualified immunity is an affront to our Constitution, to justice, and to our fundamental rights. It must be done away with, and fast.
Hannah Cox is the Content Manager and Brand Ambassador for the Foundation for Economic Education.
This article was originally published on FEE.org. Read the original article.