Impunity, Immunity, and the Politics of Accountability: A Transnational Imbalance

At the height of the Black Lives Matter movement, posters at protests and rallies across the United States read “End qualified immunity.” Whether it be the growing public demands to shift into an abolitionist framework or the more centrist voices calling for reform from within the existing justice system, many Americans have called into question the mid-twentieth century doctrine that effectively shields public officials from civil suit. Likewise, across the Atlantic, Spaniards have for decades attempted to hold ex-Francoist police officers accountable for thousands of documented instances of torture and enforced disappearance under the fascist regime, with little success on account of national amnesty law. [1]

While this comparison draws from two distinct political and judiciary legacies, both the United States and Spain face uprisings partly instigated by a national failure to reckon with the unequal legal practices of their modern history. This article will expose the duplicitous nature of the laws that render public officials untouchable in both nations. While these laws uniquely perpetuate cultures of violence, misconduct, and carelessness, they are masqueraded as principles that benefit everyone. 

Understanding the historical context behind these laws sheds light on the deceitful motivations behind them. Qualified immunity in the United States was established by the 1967 Supreme Court decision in Pierson v. Ray. [2] In 1961, clergy members on a pilgrimage to advocate for racial integration attempted to use a segregated bus terminal waiting room in Jackson, Mississippi. The ministers were arrested and charged with conduct breaching the peace. After making its way through the appellate courts, the case reached the Supreme Court where it was decided that operating under “the defense of good faith and probable cause” was sufficient reason to grant the respondent police officers immunity. [3] American qualified immunity was thus born. 

This ruling emerged in the midst of President Lyndon B. Johnson’s War on Crime, an era that was considerably invested in the militarization of local law enforcement. [4] Qualified immunity came to benefit public officials, namely the increasingly armed law enforcement officer, just three years after the police killing of fifteen-year-old James Powell and the widespread protests that followed. [5] In a political era that disproportionately targeted Black and Brown Americans, law enforcement officers whose arsenals would continue to grow, could now claim defense in civil court on the basis of “good faith and probable cause.” [6] This ruling directly contradicted the watershed 1961 ruling of Monroe v. Pape that allowed for individual police officers to be held liable under the Civil Rights Act of 1871. [7] The Court’s decision in Pierson v. Ray closed avenues for accountability made possible by Monroe v. Pape and gave public officials immunity at a time when communities of color were increasingly policed and incarcerated.

The historical backdrop for Spain’s amnesty law is equally revealing about the beneficiaries of such laws. In 1977, following Franco’s near forty-year rule in Spain, the newly erected republic established the federal amnesty law. [8] This law would serve to free political prisoners of the fascist regime while blindly guaranteeing impunity to those who participated in war crimes and human rights violations, mostly footmen of the larger totalitarian apparatus. [9] This legal standard gave rise to a larger trend within the Spanish political arena. [10] Across the ideological spectrum, Spanish politicians virtually ignored the imprint Francoism left on the nation in an effort to better invest in the country’s future.

In 2012, following a growing social movement to break Spain’s pact of forgetting (Pacto del olvido), judge and international human rights champion Baltasar Garzón was brought before the Spanish Supreme Court for alleged criminal malfeasance. [11] Garzón’s mission to seek justice for those directly impacted by the atrocities of the Franco regime was met with harsh backlash from the Spanish government. His investigation of crimes committed during the dictatorship directly violated the amnesty law for political acts. [12] Therefore, the same law that released political prisoners and reunited families with formerly exiled relatives has essentially barred any investigation into decades worth of egregious crimes. The amnesty law renders criminal officers of the fascist state immune to the legal proceedings of surviving victims.

Keeping in mind this Franco-era perspective, in Harlow v. Fitzgerald (1982), the U.S. Supreme Court upheld a similar expansion of qualified immunity under the guise of public interest. [13] In the majority opinion, Justice Powell asserted that qualified immunity spared public officials and “able citizens” of various social costs that might arise in its absence. The Justice identified some of these social costs as the price of litigation, the distraction of official efforts from “pressing public issues,” and “the deterrence of able citizens from acceptance of public office.” [14] Justice Powell went on to warn against the looming threat of suit, which in his perspective, would discourage “all but the most resolute, or the most irresponsible” public officials “in the unflinching discharge of their duties." [15]

The validity of the social costs touted by Justice Powell, especially as they pertain to harm of the everyday citizen, diminish greatly when met with empirical evidence. A 2017 Yale Law Journal study on the role of qualified immunity in constitutional litigation concluded that  “qualified immunity rarely served its intended role as a shield from discovery and trial.” [16] The diversion of official energy, then, is not substantially minimized by qualified immunity. The study also found, "the prospect of civil liability has a deterrent effect in the abstract survey environment but that it does not have a major impact on field practices." [17] The Court’s ruling in Harlow v. Fitzgerald and its promotion of qualified immunity as a public-minded doctrine is not supported. Qualified immunity in the United States, much like the impunity brought about by Spain’s 1977 Amnesty Law, has been made out to be a much more balanced exchange of civil rights than it is. These laws were formed wholly in favor of public officers, at the expense of the constituents they represent.

The fact that the United States’ qualified immunity doctrine so closely parallels a Spanish law blatantly tied to a recent fascist history is undoubtedly worrisome. Moreover, this parallel is only one piece of a more troubling reality in which people sworn to public service continue to threaten American civil liberties. [18] While on different paths, the United States and Spain are both tasked with reassessing misleading laws that overwhelmingly protect criminal public officials. A contemporary reevaluation of American qualified immunity or Spanish impunity should reject any notion that such laws legitimately or fairly serve civilians, while making clear the deceitful intent in their doctrinal origins. This would be an important step towards a legal atmosphere that more boldly reckons with inherited historical legacies and more accurately achieves accountability for those harmed by agents of public office.

Edited by David Jung

[1] Rafael Escudero, “Road to Impunity: The Absence of Transitional Justice Programs in Spain,” 36 Human Rights Quarterly, 123-146, (2014).

[2] Pierson v. Ray, 386 U.S. 547 (1967)

[3] id

[4] Elizabeth Hinton, Why We Should Reconsider the War On Crime, Time (2015), online at https://time.com/3746059/war-on-crime-history/ (visited July 22, 2020).

[5] Harlem Race Riots Of 1964, NYCdata, online at https://www.baruch.cuny.edu/nycdata/disasters/riots-harlem_1964.html (visited July 20, 2020).

[6] Gene Demby, An Immune System, NPR (2020), online at https://www.npr.org/2020/06/12/876212065/an-immune-system (visited July 21, 2020).

[7] Monroe v. Pape, 167 U.S. 365 (1961)

[8] LEY 46/1977, DE 15 DE OCTUBRE, DE AMNISTIA, Iberley (1977), online at https://www.iberley.es/legislacion/ley-46-1977-15-octubre-amnistia-1246976 (visited  July 15, 2020).

[9] id

[10] Madeleine Davis, "Is Spain Recovering Its Memory? Breaking the Pacto Del Olvido," 27 Human Rights Quarterly, 858-880, (2005).

[11] Luke Browne, Spanish Supreme Court Refuses To Drop Case Against Judge Baltasar Garzon, The World (2012), online at https://www.pri.org/stories/2012-01-31/spanish-supreme-court-refuses-drop-case-against-judge-baltasar-garzon (visited July 25, 2020).

[12] id

[13] Harlow v. Fitzgerald 457. U.S. 800 (1982)

[14] id

[15] id

[16] Joanna Schwartz, "How Qualified Immunity Fails." 127 The Yale Law Journal 1 (2017). 

[17] id

[18] Timothy Snyder, Trump's 'Delay the Election' Tweet Checks All 8 Rules for Fascist Propaganda, The Washington Post (2020), online at https://www.washingtonpost.com/outlook/2020/07/30/delay-election-trump-fascist/ (visited August 1, 2020).