Judges for the 5th U.S. Circuit Court of Appeals raised questions this week about the high court’s qualified-immunity doctrine, which critics say has long protected bad law enforcement officers.

The 5th Circuit panel of judges ruled that qualified immunity won’t protect a Jackson police detective in a case where she wrongfully arrested an innocent man.

“We readily acknowledge the legal, social, and practical defects of the judicially contrived qualified immunity doctrine,” Judge Don R. Willett wrote in a 2-1 decision, “but we are powerless to scrap it … [as] middle-management circuit judges.”

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. He spent nearly two years behind bars for a crime he did not commit.

Two years later, Jennings recanted, and Green was finally freed from jail after 22 months. In his lawsuit, he alleges that Thomas used the statement of a jailhouse informant high on drugs, manipulated a photo lineup and withheld evidence from a grand jury that would have shown he was innocent.

“There was no evidence showing I was involved, so why was I arrested?” Green told Mississippi Today. “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.”

Thomas asked for the lawsuit to be dismissed on the basis of qualified immunity, a legal doctrine created in 1967 by the U.S. Supreme Court, which determined 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.”

U.S. District Judge Carlton W. Reeves declined to dismiss the lawsuit.

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,” Reeves 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.”

He called for juries, not judges, to rule on whether officers were guilty of bad acts. “Congress’s intent to protect citizens from government abuse cannot be overridden by judges who think they know better,” he wrote. “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.”

Thomas appealed Reeves’ ruling to the 5th Circuit, saying she was “immunized against reasonable mistakes.”

In his statement to Thomas, Jennings said Green confessed that he killed Robertson and moved his body, but evidence showed a much different set of facts: Robertson was shot at one location and, still conscious, arrived at a different location where he was later found dead, wrote Willett, who was appointed by President Trump.

In addition, Robertson was with another man besides Green shortly before the shooting, Willett wrote. 

“Accepting Green’s allegations as true,” he wrote, “Detective Thomas had information which would have undercut any reasonable belief that Green murdered Robertson.”

In March 2022, Samuel Jennings recanted his statement to Thomas, saying he was “just high” and trying to get out of jail. Jennings 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.

“This method of identification, if true, is the very type of ‘unlawful’ and ‘suggestive’ identification for which we have previously denied qualified immunity,” Willett wrote.

A month later, prosecutors remanded Green’s capital murder charges to the files, and he was released from jail.

A year later, Green sued Thomas and the city for malicious arrest and prosecution “without probable cause.” Green alleged that the detective withheld evidence from the grand jury that would have shown his innocence.

Thomas insists that she deserves qualified immunity because a grand jury indicted Green. The 5th Circuit judges disagreed.

“Green’s pleadings are sufficient to suggest Detective Thomas materially tainted the grand jury proceedings,” Willett wrote.

They concluded that Thomas wasn’t entitled to qualified immunity on Green’s Fourth Amendment false arrest and 14th Amendment due process claims, but they did grant her qualified immunity with regard to the claim of malicious prosecution.

“Qualified immunity does not protect government officials ‘who knowingly violate the law,’” Willett wrote. “Based on the allegations in the complaint, Detective Thomas falls into that camp.”

Tupelo attorney Jim D. Waide III, who is representing Green, called it “encouraging” that the 5th Circuit would “largely follow the very thorough opinion that Judge Reeves wrote. There are obviously judges on the 5th Circuit that disagree with qualified immunity as much as Judge Reeves does.”

Sheridan A. Carr, special assistant to the Jackson city attorney, said the 5th Circuit did reaffirm the federal commitment to qualified immunity.

“While we respect the court’s ruling, we believe the evidence will ultimately support Detective Thomas and the City, and we expect a favorable outcome as the legal process continues,” Carr responded by email. “This ruling was made at the motion to dismiss stage, where the court was required to accept the plaintiff’s allegations as true without considering any evidence or the full context of the case. We remain confident that a more complete and accurate picture will emerge after the facts have been fully developed through discovery.”

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