Qualified Immunity Contradicts Congressional Intent. It's Time To Kill It Off.
from the and-dance-on-its-grave dept
The doctrine of qualified immunity was conjured up by the US Supreme Court in 1982 and victims of rights violations have been paying the price for more than three decades. The doctrine was created by the Court, not by Congress. This is an important distinction, especially since qualified immunity directly contradicts the liability Congress created as an avenue of redress for citizens.
Congress specifically said anyone who uses governmental power to deprive others of rights can be sued.
Every person who, under color 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…
These were the only exceptions granted:
… except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
Exceptions for judges. That's it.
As it stands now, qualified immunity lets everyone from cops to federal agents to IRS investigators off the hook for violating the rights of citizens. It's not supposed to be this way. Qualified immunity reverses the expectations of Congress to give government employees an easy way out. The Supreme Court felt the lack of safety valve for government employees meant they'd be too intimidated by possible liability to make quick judgment calls while performing their duties.
Instead, the doctrine has encouraged government employees to engage in blatant rights violations, secure in the knowledge the court-established doctrine will get them off the hook.
David French, writing for the National Review, says it's time for qualified immunity to die. Its burial would allow the nation to go back to what Congress intended: an avenue of recourse for citizens whose rights have been violated by the government. The key linchpin in qualified immunity determinations is "clearly established law." But what does "clearly established" mean in the context of a QI defense? Almost nothing.
[T]he entire notion of “clearly established law” rests on a series of absurd, fantastical premises. Are we really to believe that a police officer doesn’t know he shouldn’t pound on the wrong door and blow away the innocent occupant* unless a court said so in a case, say, five years before? Do we really believe police officers and university administrators are diligently reading such cases as they are decided anyhow?
Also note how qualified immunity flips the meaning of the statute upside-down. Section 1983 is a law designed to protect citizens and help them secure their rights. It was not designed to protect the “vigorous exercise of official authority” but instead to restrain that authority.
*Refers to the case covered here.
Judge Don Willett, writing for the Fifth Circuit Appeals Court, pointed out the ridiculousness of relying on "clearly established law" to determine whether or not government employees should be held directly accountable for unquestionable violations of citizens' rights.
Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. 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. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.
With few courts willing to draw the line in new cases, there's no precedent to look to when new troubling violations are alleged. The government can get a lawsuit dismissed in the first round of motions if there's no case directly on point in the jurisdiction handling the case. As Judge Willett pointed out, this only encourages novel rights violations, rather than deter future misconduct. To prevail on a QI motion to dismiss, a government defendant need only be the first to violate someone's rights in this manner.
Knowing that's the bar that must be hurdled to survive the initial round of motions in a civil rights lawsuits, future novel violations will likely never be converted into "clearly established law" cited by future litigants. Julian Sanchez's Twitter thread on the subject notes one side effect of three decades of qualified immunity is fewer civil rights lawsuits.
First time around, the right violated won’t be “clearly established,” and the official responsible will have qualified immunity. The second time very similar facts show up in court, though, the first case will have “clearly established” the right violated, eliminating immunity.
But think about how this effects incentives to litigate. If the specific harm you suffered isn’t “clearly established’ in your jurisdiction, you’re incurring the cost and hassle of a lawsuit, but you won’t recover damages. You’ll only allow the NEXT victim to recover.
The arguments for keeping the qualified immunity intact are weak. Holes have been poked in these by multiple lawyers and law profs, but the doctrine lives on, propped up by the parade of litigation that would certainly result if government employees were held directly responsible for their actions.
One of the weakest of the arguments is that the removal of qualified immunity would result in long stream of impoverished cops. As this amicus brief submitted for a QI-centric Supreme Court case points out, government employees are rarely, if ever, held directly accountable for their actions. It's almost always taxpayers paying other taxpayers for rights the government violated.
This concern is empirically unfounded. The widespread availability of indemnification already protects individual officers from ruinous judgments. A recent study shows that governments paid approximately 99.98 percent of the dollars recovered in lawsuits against police officers.
Qualified immunity lives on, and it seems unlikely the Supreme Court will revisit its own failure. That's not to say there's no chance it will happen or efforts like these are wasted. The Supreme Court recently punched a hole in the Third Party Doctrine -- another of its long-time favorites -- so it's conceivable a future ruling may substantially narrow the breadth of qualified immunity's scope. But as long as it remains in place, the public will continue to suffer for the government's sins.
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Filed Under: civil liberties, civil rights, courts, ignorance of the law, police, qualified immunity
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Law enforcement will never be run by pirates.
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Re: Law enforcement will never be run by pirates.
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Re: Law enforcement will never be run by pirates.
Learn something new every day.
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Re: Re: Law enforcement will never be run by pirates.
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Since it's topical, let's examine judicial appointments. The duty of Congress here is clear - to prevent the Executive from both a) padding the judiciary with cronies and b) ensure that judges appointed are well-qualified and beyond judicial reproach. They haven't completely failed, of course, but the whole process has become a partisan game of holding appointments hostage to score political points or horse-trading. Instead of ensuring that we get the best judges, their methods only ensure that we don't get the worst. It would create too much public backlash to uphold the appointment of a clearly unqualified or highly biased judge, but then again, *most* presidents are unlikely to appoint such a judge in the first place.
The long and short of it is Congress, in an attempt to court the short-attention span of the general public, has overly focused on the creation of new laws rather than curation of old laws and policies. As a result their functional power to act as a check has diminished considerably through the simple precedent of disuse. As a result executive orders go unchallenged, laws are rarely revised to combat the warping nature of judicial interpretation, and mission creep of legislative agencies continues unabated year after year. Average Joe on the street may not be able to articulate what's wrong exactly, but there's a reason why Congressional approval ratings have steadily declined regardless of which party holds a majority.
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ahem - mission creep of executive agencies...
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Copified immunity
DAified immunity
Prosecutorial immunity
Governmental Employee immunity
1%er immunity
It would probably be easier to say everyone is immune from prosecution, except us plebs...
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That wouldn't be "clarification", it would be telling the court to read the fucking law. You're right they should've done it. There's nothing unclear about it.
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https://en.wikipedia.org/wiki/Qualified_immunity
So qualified immunity holds government officials up to a lower standard than regular citizens. Given that we pay taxes and so the government works for us I think government officials should be held to a higher standard than the rest of us no different than how an employee would be held to a higher standard by his/her boss while working than while not working. Why should we pay them to be held to a lower standard?
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Today by contrast, no individual has a reason to own a tank or a nuclear missile. And only the very wealthy can afford their own private plane, let alone a military war jet.
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Why Qualified Immunity
What QI should do is remove any fear or doubt that would stop an official from doing what they know/believe to be within their job scope. It should NOT protect the employer of those agents from immunity. Thus the article should be pointing out - even if the officers act in good faith, the fault lies with the state employer for not clarifying the limits of their permitted activities. It simply means that when the law is not clear, the front-line officer or clerk is not at risk of losing their income, house and savings. Of course, if they obviously cross the line, no such protection should apply. The onus to defend or delineate the limits of state power rests with the state not the employees.
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Re: Why Qualified Immunity
Maybe that is where Congress should be acting. New law that requires law enforcement agents to actually know the laws they are hired to enforce. If there are too many laws, that could be dealt with as well.
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Re: Why Qualified Immunity
That argument assumes that the employer primarily desires to avoid liability, and therefore will act to produce clear limits on the actions of their employees.
The counterpoint is that the employer (the government) is much more interested in expanding their surveillance, seizure, arrest etc. powers and are willing to accept possible liability while in pursuit of favorable judicial precedent, aided by the knowledge that in most cases they can settle and/or drop any legal action which is on track to produce unfavorable precedent.
Under this framework, we seek to 1) find ways to get the judiciary to take a stand against the tactics used to avoid unfavorable precedent and 2) shift liability from the government (which has shown itself to be not strongly affected by increased liability) to the government officials who actually carry out the illegal actions, under the assumption that they will be more affected by liability and will therefore voluntarily limit their actions even in the absence of broader guidelines.
After all, it is easier (politically) for the government to not create clear guidelines on what does/does not require a warrant, then to specifically prohibit police from seeking warrants in a given situation.
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broken by design
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Up and Down, recognizing the responsibility Congress has
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There is a simple solution to that problem, and doctors and surgeons have been proving it works for years. Insurance. Doctors are generally not afraid to do their jobs because lawsuits are handled by their malpractice insurance, but crappy doctors can no longer afford to practice medicine.
This should weed out the bad actors in law enforcement, while allowing the good cops to continue doing their job.
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That idea is not bad, with the exception of giving more money to the insurance companies. Which makes me wonder if such a law could also require whatever government entity that employs law enforcement personnel could be required to be self insured, and not allowed to use taxpayer money to settle disputes that should be covered by their self insurance program? All premiums would be paid by the individual LEO's, and their unions prohibited from objecting to this process.
One can dream, can't they?
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I've seen this idea batted about, and it does have some merit, but I don't think it's a panacea. An insurance policy is effectively a hedge against a bet you make against yourself over which you have little to no control. You bet your house won't burn down because you don't smoke in bed or leave candles burning, but just in case it does, you hedge with homeowner's insurance. Beyond combating nuisance lawsuits where the LEO in question didn't actually do anything, LEOs have complete control over whether they get sued for rights violations - don't violate the rights of citizens.
When you start down the rabbit hole of underwriting insurance policies for things that will happen (like getting the flu) costs go through the roof. We've seen it with our medical insurance. Worse, with police, it's more akin to car insurance. Most people don't drive so recklessly that they're likely to get in a serious or fatal car wreck, but they habitually speed, tail-gate, etc. All things that unnecessarily increase risk of a minor collision and they get away with it all the time. They drive that way every day, but only get in an accident every few years. The flu doesn't hold a family meeting and debate whether to infect your or not, but people with legitimate civil complaints forgo lawsuits all the time because it costs too much or they're uncertain if the evidence they have is enough to prevail. Insurance might curb the most blatant and grievous offenses by LEOs, while making them feel licensed to commit smaller violations all the time. Of course, it might not curb the worst abuses but instead further incentivize them to badger, intimidate, or get rid of people who otherwise might sue. Can't risk a rise in those premiums...
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What QI has turned into however is a shield for deliberate wrong-doing and deliberately not putting into place processes or training to ensure people know enough not to do something wrong or to give an excuse such that someone can say, "you cannot prove I actually knew what I did was wrong".
In this case, insurance could work well - if a requirement to "practice law enforcing" and you can no longer afford it, it kicks you out of that job. At the same time, it shifts some of the calculus around civil lawsuits - it's easier to rule against an insurance company in court than your city or it's police department.
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Regardless insurance companies will be the big winners here.
Along with, you know, all the people whose rights aren't being routinely violated by police anymore. But nah, that's probably just a myth being perpetrated by "big insurance" or something...
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Cops can't pay for the insurance so their paycheck will go up to offset the additional cost. Which means more taxes or asset forfeiture to pay the premiums. If the cops get fired and premiums are too high then you will have less officers (in some cases that's a good thing). And if all the cops do change, the insurance won't have to pay out any benefits so they still win.
Regardless of how citizens rights are treated the insurance company wins.
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So it seems the government would like all its employees to be considered to be judges.
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IYAM. THUHLAW.
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A decidedly one-sided concern
One of the weakest of the arguments is that the removal of qualified immunity would result in long stream of impoverished cops.
Ignoring for a second that this would only be true if a long stream of cops were doing things that would get them sued, and pretending that removal of qualified immunity would magically change the legal system so that judges would completely flip how they treat cops in court, giving them the iron fist rather than the silk gloves, and assuming that said judges would also drastically lower the standards required for conviction when it came to cops overnight due to this change, this argument gives police highly preferential treatment that no-one else gets.
A member of the general public isn't shielded from lawsuits by the idea that if they're able to be sued it could drive them into bankruptcy, rather than it accepted as a possible punishment, and source of recourse, in relation to what they may do. It's accepted that, if you do something bad enough you may get sued, and also that the result of that may be a financial penalty that could have serious repercussions on the one being sued.
And yet, somehow, the idea that police might face actual penalties for their actions is considered unjust and not fair to some people. As though lawsuits shouldn't be able to impose financial penalties if the one being sued happens to have a badge.
I have to wonder if the people making that argument also hold to the idea that members of the general public should also be immune from lawsuits that carry financial penalties due to the possible problems they could cause, or if they believe that only police should be given that extra special treatment. How they answered that would make clear which end they fall under, hypocrites, or merely people who haven't actually thought the argument through.
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Re: A decidedly one-sided concern
With a few flavorings of the disincentives which already exist, in the form of "difficult, unpleasant, and dangerous job" et cetera.
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Which is where the second and third conditions in the hypothetical come into play. Just because they can be sued, doesn't mean it would get past the opening stages, just like it works for anyone else.
Now being sued can be a problem even if it gets tossed at the outset(something any regular TD reader should be well aware of), but that has more to do with the legal system in general, rather than the legal system with regards to police, such that fixes aimed at the general problem(federal anti-SLAPP laws, penalties for litigants and their lawyers for bringing obviously frivolous cases and so on) would also protect the police that actually are good and aren't being sued for good reason(s).
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True, but it's easier to fix the issue just for police officers than to do so for the public at large, especially when doing so by judicial precedent rather than by explicit legislation - and probably, for the case of police officers, actually less effective.
So inertia kicks in, with a sauce of "something must be done, so we might as well do the thing that's easiest to do".
And possibly of "the perfect is the enemy of the good", in the form of "fixing the general problem would be so hard that we probably couldn't get it done, especially against political opposition, so we should at least fix the smaller problem we can actually succeed at addressing" - disregarding the negative consequences of that smaller fix.
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Rule of Law my Arse
Qualified Immunity Contradicts Congressional Intent. It's Time To Kill It Off.
The courts quietly put Section 1983 to sleep through benign-neglect and legislated the bastard child known as Qualified/Absolute immunity from the bench without public debate thus circumventing both congress and executive.
42 U.S. Code § 1983 - Civil action for deprivation of rights
Every person who, under color 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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
https://www.law.cornell.edu/uscode/text/42/1983
Qualified/Absolute immunity are defective legal theories derived via judicial fiat that empower the US government and it's agents at the expense of all persons seeking redress/remedy through the courts for government malfeasance, misfeasance and nonfeasance .
Qualified/Absolute immunity doctrine is rule of man (ie tyranny).
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This reminds me o9f libertarians who want "try" limited government, not realizing that most of what they dislike about government came into existence because of what happened when we had no regulation (such as with self-regulated railroad safety).
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The whole point of the Constitutional amendments was to stop people mistreating other people under colour of law. Those are the regulations people end up suing about.
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I find this claim difficult to believe, some people out there take much worse jobs that pay less simply because they have no other means of income. Not only that, but it is a very bad excuse for providing immunity.
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Three Branch System
Congress made its intent clear, and enacted a law. The court comes in and insists Congress didn't really mean what the law says, so they ignore it.
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Re: Three Branch System
The government would shut down fo lack of employees if those who worked for it had to risk private lawsuits. If anything, the immunity laws should b e strengthened. The reason we have bureaucracy is so that individual workers cannot hold the government hostage by setting policies only they understand, though vender lock-in is still a huge issue with contractors.
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The government would shut down fo lack of employees if those who worked for it had to risk private lawsuits. If anything, the immunity laws should b e strengthened.
Okay, what exactly are we talking about? The subject is police mistreating people by violating their rights and getting away with it due to qualified immunity.
The reason we have bureaucracy is so that individual workers cannot hold the government hostage by setting policies only they understand, though vender lock-in is still a huge issue with contractors.
How exactly would that work in practice? I'd have thought that such a worker would quickly be shown the door. Vendor lock-in is a different subject and has nothing to do with qualified immunity.
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Again - this is simply bullshit. Also, it's not like the government shutting down is considered to be a big deal in DC - they joke about it all the time.
"The reason we have bureaucracy is so that individual workers cannot hold the government hostage"
The wealthy may think this is the case, but everyone else may disagree.
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