Category: Essays

By Nana Dadzie Ghansah

If the 1967 Supreme Court ruling in the case Pierson vs Ray birthed the doctrine of “Qualified Immunity”, the 1982 decision Harlow vs Fitzgerald cemented the concept.

Background

In 1965, Lockheed was awarded the contract to build the C-5A Galaxy cargo plane for the Air Force. Even though Boeing had the best overall design, Lockheed had the lowest bid and thus won. Their bid was for $16 million per plane for a project total of $1.9 billion. In a few years, the cost of a plane amount would balloon to $40 million.

The project was plagued by technical difficulties and significant cost overruns which both Lockheed and the Pentagon hid from Congress. There was however an engineer and management analyst in the Department of the Air Force who knew how much more the project was costing taxpayers. He first discovered the cost overruns on a routine visit to the Lockheed complex in Marietta, GA in January 1966. He kept up with the overruns even though Lockheed tried to hide them. His name was Ernest Fitzgerald.

With time, Congress got wind of how expensive the C-5A project had gotten. On November 13, 1968, with the unexpected costs standing at $2.3 billion dollars over budget, Fitzgerald was invited to testify before Congress regarding these cost overruns.

Even though he was asked by the Air Force to not divulge any information about the cost overruns and problems at Lockheed, Fitzgerald did not heed that directive. His testimony was stunning. The Air Force brass was livid.

The initial congressional hearing occurred at the tail end of the Johnson presidency. The investigations and Fitzgerald’s appearances continued into 1969 with Nixon in office. In late May and early June of 1969, Fitzgerald testified four times before the House Armed Services Committee and the Joint Economic Committee at their request.

Now Fitzgerald’s testimonies were not only annoying the Air Force brass but also reportedly, President Nixon and three of his aides, Bryce Harlow, H.R. Haldeman, and Alexander Butterfield. They thought he was not a team player and needed to be removed from the Air Force.

Even before the president got involved, Fitzgerald was socially and professionally ostracized at the Pentagon after his initial testimony before Congress. Many of his assignments, especially those involving the C-5a were pulled and he did not get any new responsibilities. Led probably by the Air Force Secretary Robert C. Seamans and working together with the White House, he was secretly investigated, suffered a smear campaign, and was accused of divulging classified information. Finally, it was decided that the best way to get rid of him was to abolish his position in the Air Force. On November 4, 1969, Fitzgerald was notified that his job had been abolished in a reduction in force, and economic reorganization. His termination became effective on January 5, 1970.

He appealed his termination to the Civil Service Commission (CSC). He won his appeal and was reinstated to his Pentagon job with back pay in December 1973. However, he was not assigned to any more jobs that involved weapon systems. It was also during these CSC hearings that the role of the Nixon White House in Fitzgerald’s firing came to light.

In January of 1974, Fitzgerald filed a suit for damages in the United States District Court in Washington DC. The defendants were 8 officials of the Defense Department, White House aide Alexander Butterfield, and “one or more” unnamed “White House Aides” styled only as “John Does.” He alleged the defendants conspired “…to deprive him of constitutional and statutory rights resulting in permanent injury to his career and personal injury to his dignity, privacy, and reputation, as well as mental anguish.”

The district court dismissed the lawsuit under the statute of limitations. The Court of Appeals affirmed the lower court decision but reasoned that the defendant Alexander Butterfield, one of Nixon’s aides, might not be covered by the statute of limitations due to a memo he had written in 1970 and that had come to light during the Watergate hearings. The memo was written around the time Fitzgerald was fired. In the memo, Butterfield stated, “Fitzgerald is no doubt a top-notch cost expert, but he must be given very low marks in loyalty; and after all, loyalty is the name of the game. Butterfield went on to recommend that Fitzgerald should at least be made to “bleed for a while” before being offered another job in the administration. The Court of Appeals thus remanded the action against Butterfield for further proceedings in the District Court.

Following that and extensive discovery, Fitzgerald filed a second amended lawsuit in DC district court in July 1978. As defendants, he named the former President Nixon, White House aide Bryce Harlow and other officials of the Nixon administration. By March 1980, only three defendants remained: Richard Nixon and White House aides Harlow and Butterfield. Nixon and the other defendants claimed protection from qualified immunity. Moreover, Nixon claimed absolute immunity as he was president when the actions were taken. The district court ruled that the case could go to trial and that Nixon could not claim absolute Presidential immunity. He could only claim qualified immunity. Nixon and the other defendants appealed the ruling of the district court but the Court of Appeals upheld it.

Nixon vs Fitzgerald

On November 30, 1981, the lawsuit landed before the judges of the United States Supreme Court. By this time, the lawsuit against Nixon had been separated from that against Harlow and Butterfield. The question was, “Was the President immune from prosecution in a civil suit?”

On June 24, 1982, the judges decided in favor of Nixon. In a 5–4 decision, they ruled that the President “is entitled to absolute immunity from damages liability predicated on his official acts.” Justice Powell in writing the court’s opinion stated that absolute immunity was a function of the “President’s unique office, rooted in the constitutional tradition of separation of powers and supported by our history.” He also argued that “because of the singular importance of the president’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” The court however also stated that the President is not immune from criminal charges stemming from his official (or unofficial) acts while in office.

Interestingly, in 1997, the SC in Clinton vs Jones would add that a President is subject to civil suits for actions committed before he assumes the presidency.

Harlow vs Fitzgerald

The other part of the lawsuit involving Harlow and Butterfield was heard separately by the judges in the same time span and became known as Harlow vs Fitzgerald. The question here was, “Are presidential aides entitled to immunity from civil suits?”

In an 8–1 majority, the judges held that government officials are entitled to qualified immunity but not absolute immunity. The court stated that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

In ruling this way, the judges were hoping to protect state actors from frivolous lawsuits that would dampen the desire for government workers to exercise their duties in cases where the legality of their actions is uncertain.

However, this has led to the unintended consequences that have not always been good and have challenged the civil rights law Section 1983.

For several years after the ruling government officials and policemen who violated the civil rights of others in new and novel ways and got sued, mostly got off free as the illegality of their actions had not been established. However, subsequent offenders did not always. Judges dealing with such cases had to conduct a two-step inquiry.

First was the question if the alleged facts show that, say, an officer’s conduct violated a constitutional right of a victim. Then the judge had to determine if the illegality of the officer’s actions was or was not “clearly established. If there was a precedent, then the action had been clearly established as being illegal and the officer did not get qualified immunity and could be sued. If there was no precedent, then he got qualified immunity. Unfortunately in the 2008 case Pearson vs Callahan, the judge ruled that this 2-step framework was not mandatory. Since then, a lot of judges have forsaken the 2-step process and are not even examining if a plaintiff’s civil rights were violated. Also, in looking at the illegality of officers’ actions, judges are giving them more leeway.

The Supreme Court ruling also gives government officials and policemen another advantage. Qualified immunity is usually invoked before the case goes to trial before a jury. In all other lawsuits, if the challenge a defendant brings up to prevent a trial fail, he/she cannot appeal the case before the trial is over. Yet, in cases involving qualified immunity, the officer or government official can appeal the denial of qualified immunity before the trial. This increases the time and cost of civil rights lawsuits against state actors thus making such cases unpopular with civil rights attorneys.

And even if the plaintiff prevails in a lawsuit, most jurisdictions indemnify police officers against having to pay compensation to victims. Like UCLA law professor Joanna Schwartz found out in a survey she did in 2014 for her NYU Law Review article “Police Indemnification, 44 large police departments, as well as 37 small and mid-sized agencies totally exempted their officers from paying for the damages of their misconduct. She found out in the study period of 2006 -11 “…governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.”

The Supreme Court created the doctrine of “Qualified Immunity”. It was not a law passed by Congress. No matter its intent, the doctrine has morphed into an instrument that allows some state actors to violate the civil rights of some of the nation’s citizens and escape the consequences of their actions. It is time for Congress to do something about it.

By Nana Dadzie Ghansah

In 1871, the Reconstruction-era Congress passed the Ku Klux Klan Act. Section 1 of that act would later become known at 42 U.S.C. § 1983 or “Section 1983” in 1874.

It was originally passed to help African-Americans enforce the new constitutional rights they won after the Civil War. 

“Those amendments made slavery illegal, established the right to “due process of law” and equal protection of the laws, and guaranteed every male citizen the right to vote. Although these Amendments became law, white racist judges in the state courts refused to enforce these laws, especially when people had their rights violated by other state or local government officials. The U.S. Congress passed Section 1983 to allow people to sue in federal court when a state or local official violated their federal rights.” (Excerpt from “Jailhouse Lawyer’s Handbook, Chapter 1).

The law states that:

“Every person who, under color (under state authority) of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

This basically meant that if you believed that a state actor like a cop infringed on your civil rights during an interaction or a county clerk treated you differently because of your religious beliefs, you could sue them.

There are legal rules made by judges as they issue rulings on cases, as opposed to rules and laws made by the legislature. This is known as common law. From all indications, once Section 1983 became law, there is nothing in the common law from that era that gave state actors immunity from being sued.

This all would start to change in 1967.

In 1960 the Supreme Court ruled in the Boynton v. Virginia case that segregation of interstate transportation facilities, including bus terminals, was unconstitutional. Starting in May of 1961, a civil rights organization called Congress of Racial Equality (CORE) decided to test if the SC ruling was being adhered to in the Jim Crow South. It started organizing bus rides to the south called “Freedom Rides”. The “Freedom Riders” were a group of white and African-American civil rights activists. The aim was to have mixed racial groups ride into the southern states that still maintained Jim Crow laws and use the facilities there to challenge local laws or customs. The riders were confronted by the police as well by very violent white protesters in the southern states. However, it drew attention to the civil rights movement.

About a year before the SC ruling, three Episcopalian priests formed the Episcopal Society for Cultural and Racial Unity (ESCRU) to fight for racial equality and against segregation in the Episcopal Church and its institutions. It was headquartered in Atlanta, GA. 

In the spirit of the Freedom Rides, the ESCRU organized a “Prayer Pilgrimage” from New Orleans, LA to the Episcopal Church Convention in Detroit, MI. The aim was not only to visit Episcopal Churches and schools along the route to preach de-segregation but also to challenge the Jim Crow laws by having a mixed racial group of pastors use transportation facilities in the states with these laws.

On September 11, 1961, an interracial group of 27 priests set off on this “prayer pilgrimage” on a chartered Trailways bus from New Orleans. On arrival in Jackson Mississippi on September 13, fifteen (12 whites and 3 backs) of the integrated group of priests entered the “Whites Only” lunchroom of the Trailways bus terminal. They were asked by 2 cops to “move on” but refused. The group was arrested and thrown in jail by a Captain JL Ray.

One of the priests in the group of 15 was one Father Robert L. Pierson. Incidentally, he was the son-in-law of the then Governor of New York State, Nelson Rockefeller. This led to the incident getting a lot of press coverage. 

The priests faced a local judge named James Spencer on September 15. He found them guilty of Breach of Peace (using a now-repealed Mississippi law) and sentenced each of them to four months in jail and a $200 fine. After a few days in jail, they were released on bond.

Led by Fr. Pierson, the group appealed the case in county court. A judge at the county court dismissed the case against the clergymen.

The group subsequently brought a Section 1983 suit against the policemen and the judge for depriving them of their constitutional rights per Section 1983 of the 1871 law. At the district court in Jackson, the jury found in favor of the cops and the judge. On appeal, the Court of Appeals for the Fifth Circuit ruled that the local judge was immune from liability. They also ruled that even though the Mississippi law was unconstitutional, “Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not.” 

The case finally landed in the Supreme Court as Pierson vs Ray in January 1967. It was decided on April 11, 1967. Eight out of the nine judges agreed that “…Judge Spencer was immune from liability for damages, and that Section 1983 would not apply in a judge’s case”. Further, the stated that “Congress would have specifically so provided had it wished.”

Regarding the policemen, Chief Justice Earl Warren wrote:

“The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is, rather, that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country, a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” 

With that decision the court basically ushered in the legal concept of “Qualified Immunity”, thus diluting the whole spirit of Section 1983.

“Qualified Immunity” basically means that state actors like policemen can’t be sued unless the plaintiff can demonstrate to the court that they violated “clearly established law.” It further means that as long as the cop was believed to be acting in good faith in line with his work, he or she cannot be held liable for a bad outcome.

That ruling would create a police force that could not be held liable for infringing on the civil rights of the very people they had sworn to protect.

I made an observation growing up that has stayed with me till now. I noted how men who had worked their whole lives would go into retirement and suffer precipitous declines in health, that in some cases, led to death. I filed that away.
Working as a physician, I have also made another observation that somehow ties into the first. I have noticed that older patients, being those 70 and older, who were still in relatively good health and looked physically fit, had something in common. They were active. Not just physical activity but most of them still worked regularly. The most impressive are the old farmers.
These physically fit seniors always stand in stark contrast to their compatriots who were not active.

These observations and other anecdotes have always made me wonder about the wisdom behind retirement. Why do we retire?
We spend years keeping a schedule that keeps us regimented only to one day give that all up for one that may not be as controlled and full. Somehow, that dramatic change has effects that are profound.

We did not always have retirement. The concept is actually just a bit over a century old. It is noteworthy that even in the 19th century, the older generation may have been seen as a burden. In his 1882 novel titled “The Fixed Period”, the then 67-year-old Anthony Trollope wrote about a fictitious country called “Britannula” where large numbers of old men were retired to a place where they would be encouraged to enjoy a year of relaxation, followed by a peaceful death – euthanasia – with chlorofom.
It was the German Chancellor, Otto von Bismarck, who in 1883, introduced the concept of paying senior citizens a wage to stay home and not work. He did that to take the wind out of the sail of the Marxists. The set age was 70 and with the life expectancy then, very few took advantage of that age.

In the US, the famous physician, William Osler, in his farewell speech as he left Johns Hopkins for Oxford, made remarks that earned him the ire of the nation. His speech centered on the theme of the energy of youth and the uselessness of old age. Osler, who was 55 at the time, claimed that men were virtually useless after age 40 years and should retire after age 60 years. He then jokingly referred to the Trollope book and wondered if the old should be chloroformed.
By the 1930s, with the Great Depression underway, dwindling job prospects for the youth made it necessary to “get rid” of the elderly workers. Roosevelt would introduce the Social Security Act and the retirement age would be pegged at 65…arbitrarily.

So what do the studies say about retirement? A rash of studies paint a rather grim picture of health after retirement and yet, there have been a few that have shown the opposite. One of the latter was a 2017 Dutch study that showed that men who retired in their 50s were less likely to die in the next 5 years than those who continued to work. Yet noteworthy is not the retirement itself but what the men were able to do in retirement. They were able to lead healthier lifestyles. Similar results have been seen in studies from Israel, England, Germany and other European countries. 
However, the studies that show negative health effects of retirement greatly surpass those that show a benefit to health. Retirement allows one more free time to live healthier, why are there so many studies showing negative health results? 
Boyle et al showed in 2010 that the loss of purpose contributed significantly to the development of Alzheimer’s in the elderly. Hill and his group have shown that the loss of that purpose leads to an increase in all-round mortality. Holt-Lunstad and her group see a correlation between loneliness and death in the elderly and Behncke showed an increase in the incidence of strokes and cancers in retirees. The US Health and Retirement Study showed an increase of 40% of strokes and heart attacks in retirees.

In spite of all these negative findings, the studies that show a benefit may give us a clue why retirement can be so bad for so many. The two big culprits may be loneliness and lack of purpose. Of course, family and friends can help one deal with that but what if one’s work was where one found companionship?
Loneliness can be so crushing that it induces a certain despondency that takes away even the motivation to be active. This lack of activity worsens one’s health. The loneliness in itself is also dangerous. Coupled with the lack of purpose, is it any wonder so many retirees do not do well.
It is important to note that in those studies where retirement led to health benefits, most of those retirees were not lonely, had a sense of purpose and stayed active.
Depending on one’s job, retirement might be finally a time to find some rest or it could be the beginning of a slow decline, physically and cognitively. It is even worse now that life expectancy is much higher than in the 1930s. 
In all, these studies help explain my observations.

So should we retire? Should we put men and women to pasture, who may still live another 20 years and risk having them spend those years alone and without purpose?
I think the institution of retirement is here to stay and so each of us should have a plan on how to deal with it. If possible, one should maybe delay it for as long as possible. One should also try to develop other interests that could fill one’s time in retirement. Retirement communities are sources of companionship. Consideration could also be given to another career, even a part-time job or a volunteer position.

In a recent book titled “Late Bloomers: The Power of Patience in a World Obsessed with Early Achievement”, Rich Karlgaard discusses the ability of the human brain and our capabilities to still keep developing deep into adulthood. If we are ever developing and possess the ability to attain new capabilities, why retire onto loneliness, despondency, and lack of purpose. Maybe the ultimate antidote to the ills of retirement is to never stop learning. Like the writer T. H. White wrote in the novel, “The Once and Future King”:
“The best thing for being sad is to learn something. That is the only thing that never fails. You may grow old and trembling in your anatomies, you may lie awake in the middle of the night listening to the disorder of your veins, you may miss your only love, you may see the world around you devastated by evil lunatics, or know your honor trampled in the sewers of baser minds. There is only one thing for it then — to learn. Learn why the world wags and what wags it. That is the only thing the mind can never exhaust, never alienate, never be tortured by, never fear or distrust, and never dream of regretting.”

It is rather interesting that in the very year my interest in astronomy was really awakened, the world saw the image of a black hole for the first time. Even though others had postulated about the possible presence of black holes in the 18th century, it was really the work of Einstein that set the ball rolling. It all started with Newton, Einstein, and gravity.

Now Isaac Newton saw gravity as the result of the force between masses. Einstein saw it as the result of the curvature of spacetime.

To help understand the Einstein position without using the really hard-to-understand tensor calculus, let us do an exercise:

Imagine the universe is a large sheet of Spandex stretched and attached to several poles to keep it taut. Now imagine dropping a bowling ball into the sheet. It will dent or warp it, right? Good! Now drop a marble into the sheet with the bowling ball still on it. The marble will roll towards the bowling ball, wouldn’t it? If you drop smaller and lighter balls with different sizes and weights on the sheet, they will all follow the curvature induced by the bowling bowl and rotate around it before finally sinking into the depression it creates.

The curvature induced by the bowling bowl in the sheet of spandex is what causes the smaller bowls to rotate around it. (If one paid attention, one would notice that the path charted by the rotating balls is not a perfect circle but an ellipse).

In the same way, all the other balls will warp the sheet to a degree and cause their own curves. The biggest ball will cause the other balls to rotate around it – in this case, the bowling ball. The phenomenon whereby a body warps the sheet and thus induces other bodies to move along the created curve is what is similar to what happens in the universe. That is what we call gravity.

Whereas Newton saw the universe as being static, with everything having its place, Einstein saw the universe as being more dynamic. In Einstein’s view, space combined with time to form a universal “sheet” called spacetime with three spatial dimensions – backwards-forwards, left-right and up-down – and one-time dimension. Celestial bodies travel through spacetime and in the process, bend, warp or even curve it. The more massive an object is, the greater the warping. The planets orbiting the sun do so not because of a force exerted by the Sun but because they are following its induced curve in the spacetime fabric. 

These bends and curves can even affect the path that light takes as it travels from a star. Newton saw light as a corpuscle with mass. Thus he thought that a star could affect its path through gravitational force. By the time Einstein came around, we knew light was a wave. Its path is bent because of gravity alright but not the Newtonian version but rather the Einstein relativity one – through the curves induced by celestial bodies. This phenomenon is called gravitational lensing and was proven elegantly by Arthur Eddington during a solar eclipse in 1919. 

Thus gravity is not a force but the curvature induced in the spacetime fabric by celestial bodies causing them to move and rotate.

Einstein discussed his concept of gravity under what he termed “the Theory of General Relativity”, in four seminal papers that he published in November of 1915. A year later, a German theoretical physicist named Karl Schwarzschild published a paper that drew on Einstein’s work and made postulations that were at the time even more esoteric than Einstein’s. It would be years before the import of Schwarzschild’s work would be appreciated.

The paper was titled “Über das Gravitationsfeld eines Massenpunktes nach der Einstein’schen Theorie” (On the Field of Gravity of a Point Mass in the Theory of Einstein). In it, he delved into escape velocity – that is the velocity a smaller object needs to have to pull away from the gravitational curvature of a bigger body. This escape velocity is directly proportional to the mass but inversely proportional to the radius of the bigger body. So a rocket headed to the moon from the earth needs an escape velocity of 11.2 km/s.

Now imagine a scenario where a celestial body got smaller but kept its mass. The escape velocity from that body would increase. If the body kept getting smaller, it would reach a point where the escape velocity became equal to the speed of light – 300,000 km/s or 186,000 miles/s. At that point, nothing – matter, radiation, light, nothing – can escape from that body. It also becomes impossible for the body to stay intact and thus it disintegrates into a minuscule point whose only presence in the universe is a dark bottomless, infinitesimal entity called a “singularity”. Since no light escapes this point, it is invisible. However, this “singularity” induces a boundary called the “event horizon”. If another body goes over the event horizon, it vanishes into oblivion. Schwarzschild even presented a formula to calculate the size of an event horizon (the Schwarzschild radius).

At that time, physicists found Schwarzschild’s postulations quite arcane then most did not look beyond our planet. Yet if one considered the stars as the bodies being escaped from, his work made a lot of sense. Remember a star is really a collection of really hot gases or plasma and hot gases can get smaller as they burn out.

It would be years before the scientific community would understand it’s importance. His work joins that of Einstein and others in becoming the buttress for the concept and now the reality of black holes, a name coined disdainfully by the American physicist, John A. Wheeler, in 1967. Earlier this week, the world was treated to the first picture of the event horizon a black hole in M87.

According to theory, there might be three types of black holes: stellar, supermassive, and miniature black holes – depending on their mass. These black holes formed in different ways.

Stellar black holes form when a massive star collapses. 

Supermassive black holes, which can have a mass equivalent to billions of suns, are found in the centers of most galaxies and are likely the byproduct of galaxy formation. 

Miniature black holes could have formed shortly after the “Big Bang,” which is thought to have started the universe 13.7 billion years ago. They may be the result of faster moving matter causing slower ones to contract into black holes.

As noted above black holes may have been instrumental in how our universe formed billions of years ago. As mentioned earlier, stars are just a collection of hot gases fueled by intense radiation. As the universe formed, these massive initial stars burnt out creating massive black holes and pulling in other stars. They also emitted jets of high-velocity radiation that led to the formation of other stellar bodies. In a way, they are like the volcanoes of the universe – creators as well as destroyers. One massive one lies in the center of every galaxy. Like volcanoes, they are dormant most of the time. When they do get active, it is disastrous.

Schwarzschild was not the first person to think of the concept of a back hole.

Interestingly, back in 1783, an English priest, philosopher and scientist called John Michell, a man once described as “a little short man, of black complexion, and fat” would touch on this same claim in a presentation to the Royal Society. A few years later, in 1796, the French scientist, Laplace would make the same claim in his book, “Exposition du Système du Monde.”

In a letter to Einstein from November of 1924, the Austrian physicist wrote:

“Einstein, my upset stomach hates your theory of General Relativity—it almost hates you yourself! How am I to provide for my students? What am I to answer to the philosophers?!!”

I guess for us laymen, trying to understand the theories of Einstein and all it has spawned can lead to upset stomachs and even headaches. However, they definitely help us better understand our universe and our place in it. Moreover, they show how brilliant we humans can be. 

On the other hand, the presence of these black holes points out the fallibility of the universe we live in and by extension the fallibility of us humans. Scattered around us are places where we can vanish into oblivion. Places where the laws we think control our universe and our lives do not work. Maybe the time has come to probe into these black holes and with that, face our very fallibility. How excitingly scary is that!