Judge: Juries, not judges, should rule on officers’ ‘bad acts’

Desmond Green spent about two years behind bars charged with a capital murder he didn’t commit.

A Jackson police detective “used a lying, drug-impaired jailhouse informant to lock Green up,” U.S. District Judge Carlton W. Reeves wrote Monday in response to Green’s 2023 lawsuit. “The detective also steered the informant to select Green’s face from a photo lineup. It was a horrifying wrong.”

Reeves wrote that the horror continued in the Hinds County Detention Center, which was “full of violence, rodents, and moldy food. He says there was ‘constant yelling, fighting and threats.’ Green ‘often did not have a mattress, or even a pad, to sleep on, and slept on the floor.’ He ‘constantly feared for his life.’”

The informant recanted. The state dropped the charges, but the ordeal still cost Green about two years in jail.

Last year, he filed a lawsuit against the city of Jackson and others.

“Green filed this lawsuit to seek justice for those two wrongs — his prosecution and conditions of confinement,” Reeves wrote. “He has sued the detective who locked him up, her employer (the City of Jackson, Mississippi), and the operator of the Hinds County Detention Center.”

Now, the judge wrote, Green is “on the precipice of being wronged a third time. Not by a rogue officer or jailer, but by the law itself. Because the detective says the legal doctrine of qualified immunity requires the Court to dismiss Green’s claims against her.”

“Qualified immunity is an unconstitutional error. It is past time for the judiciary to correct this mistake.”

— U.S. District Judge Carlton W. Reeves

In his Monday decision, Reeves paved the way for the lawsuit to go forward. He rejected defense claims that the litigation should be dismissed because of the qualified immunity doctrine, which the U.S. Supreme Court created in 1967.

That doctrine “means persons wronged by government agents cannot sue those agents unless the Supreme Court previously found substantially the same acts to be unconstitutional,” the judge wrote. “A cynic might say that with qualified immunity, government agents are at liberty to violate your constitutional rights as long as they do so in a novel way.”

But Green didn’t stop at suing for justice and damages. He wants to bring an end to qualified immunity, and many lawyers, professors and judges have sided with him.

“The Court agrees with these calls for change,” Reeves wrote. “Congress’s intent to protect citizens from government abuse cannot be overridden by judges who think they know better. As a doctrine that defies this basic principle, qualified immunity is an unconstitutional error. It is past time for the judiciary to correct this mistake.”

On Feb. 13, 2020, someone shot Nicholas Robertson, who knocked on the door of Avery Forbes’ home in Jackson and died there.

Two months later, police arrested Samuel Jennings on an unrelated charge. He told police that Desmond Green told him that he had killed Robertson.

The accusation stunned Green, who told police he didn’t know Robertson, much less take part in his murder.

Despite that, Detective Jacquelyn Thomas and Hinds County prosecutors encouraged the grand jury to indict Green, who was jailed without bond, with armed robbery being the underlying felony that elevated it to capital murder.

Two years later, Jennings recanted, blaming the statement on meth abuse and told authorities he suffered from a variety of mental issues. He said he initially pointed to the first photo in a photo lineup, only to have the detective steer him instead to the fifth photo, which was Green.

As a result, prosecutors remanded the case to the file, and Green finally went free in 2022.

Green worked as a brick mason before suffering a series of tragedies. He had 28 inches of his colon removed because of diverticulitis. His mother died of kidney failure, and his father had stage 4 lung cancer that went into his brain.

“They died seven months apart,” said his sister, Jackie.

After that, Green was jailed in 2020 for capital murder in the killing of Robertson, a man he said he never knew and never met.

On the night of the homicide, he said, “I was at home, trying to do everything you do to not be in trouble. I was at home in my bed, asleep.”

Despite that, he was arrested, put in jail and refused bond.

Inside the jail, he said he was put on lockdown, sometimes going up to two weeks without a shower.

He lost the home he had for more than seven years, he lost time with his seven children, and he returned home with a limp. “It hurt me to walk,” he said.

His arms remained sore because of all the nights he slept on concrete. “The jail was overcrowded,” he said. “We sometimes had five or six people” to a cell intended for two.

The 43-year-old still suffers from nightmares from his time behind bars. “I saw people murdered in the jail,”  he said. “I feel very paranoid, like I’m always being watched. It’s hard for me to be around a lot of people.”

He said another charge is still pending against him that he has yet to be indicted for — grand larceny.

“They claimed I was stealing water,” he said, “but that wasn’t true.” In reality, he said, there was no water to steal because firefighters shut off his water after his neighbor’s home burned down.

Law enforcement officers need to thoroughly investigate before putting people behind bars, he said. “There was no evidence showing I was involved, so why was I arrested?”

The system needs to be improved, he said. “My life was on the line the whole time, and I was never allowed to speak to the judge until two years later. I lost time that I’ll never get back.”

Tupelo attorney Jim D. Waide III, who is representing Green, said he thinks Reeves’ opinion comes closer than any previous opinion to making the Supreme Court review the doctrine.

In addition to the opinion of Reeves, who was nominated by then-President Barack Obama in 2010, Judge Don R. Willett of the 5th Circuit Court of Appeals, one of then-President Trump’s nominees in 2017, has also questioned the doctrine.

In 2018, Willett criticized “the kudzu-like creep of the modern immunity regime” and explaining how the doctrine “smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

In other words, “it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful,” Willett wrote. “Immunity ought not be immune from thoughtful reappraisal.”

In the years following the end of the Civil War, the Ku Klux Klan and other white supremacists “unleashed waves of terrorism across the South,” Reeves wrote.

In response, he wrote that Congress passed the Ku Klux Klan Act of 1871 to help protect Black Americans because state courts “left the terrorism committed by various militant groups seeking control in the South unchecked.”

For decades, he wrote, the high court never recognized a “good-faith immunity,” but that changed when the U.S. Supreme Court ruled in 1967 that Jackson police officers who arrested ministers who entered a whites-only waiting room were immune from litigation because the officers were acting in “good faith.”

In creating this qualified immunity, justices “protected the Southern officials still violating those federal rights 100 years after the War ended,” Reeves wrote. “Southern trees bear strange fruit, indeed. It is difficult to see qualified immunity’s creation as anything other than a backlash to the Civil Rights Movement.”

Such “immunity,” he wrote, has led to the protection of correctional officers holding a person naked in a frigid cell, “covered in other person’s feces,” police officers stealing $225,000 in cash and rare coins, and police officers killing someone inside a car because “the law clearly established only that an officer would not shoot a person from outside a car.”

Reeves called for judges to let juries decide instead.

Jurors can be instructed that federal law gives people the right to be free “from unconstitutional action under color of state law” and also that unnecessary suits against public officers run the risk of diverting “energy from pressing public issues” and deterring “able citizens from acceptance of public office,” he wrote.

The Constitution is full of such tensions, he wrote. “Its authors in one breath declared all men to be created equal, and in the other calculated a slave to be worth three-fifths of a white person. Contradiction is in America’s DNA.”

Jurors “know the difference between those acting properly and those violating others’ rights,” he wrote. “Their work confirms that when it comes to fact-finding, ‘anything a judge can do a jury can do better. It takes a special type of arrogance simply to conclude that American jurors cannot.’”

As a citizen, “Desmond Green has suffered two injustices,” the judge wrote. “The judiciary should not impose a third. If qualified immunity would do that, closing the courthouse doors to his claims, then the doctrine should come to its overdue end.”