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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    identicon
    John Smith, 17 Sep 2018 @ 5:08am

    Law enforcement will never be run by pirates.

    Sorry, Timmy. You and Little Mikey will still have copyright. You pro-piracy a**holes.

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    • identicon
      Dan, 17 Sep 2018 @ 5:24am

      Re: Law enforcement will never be run by pirates.

      Have a flag for being completely off-topic.

      reply to this | link to this | view in chronology ]

    • identicon
      Donald Trump's Hair, 17 Sep 2018 @ 7:20am

      Re: Law enforcement will never be run by pirates.

      Here I thought I was atop the biggest asshole in the world.
      Learn something new every day.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Sep 2018 @ 11:28am

        Re: Re: Law enforcement will never be run by pirates.

        Ahem.. why would you want to be atop of the biggest asshole ever!? And then go public?

        reply to this | link to this | view in chronology ]

  • identicon
    Dan, 17 Sep 2018 @ 5:23am

    I generally agree, but consider a counterpoint: the Supreme Court invented QI in 1982. At any time in the 36 years since then, Congress could have clarified that no, they didn't intend that to be the law--but they haven't. Given that, I don't think it's anywhere near clear that Congress doesn't intend for this to be the law.

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    • icon
      Zgaidin (profile), 17 Sep 2018 @ 6:06am

      Re:

      I'm not sure your conclusion logically follows your statements as clearly as it seems at first blush. Regardless of where you fall on the broader-than-binary political spectrum, Congress has pretty failed to uphold one its most important duties - to act as a check against the other two branches.

      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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    • icon
      ShadowNinja (profile), 17 Sep 2018 @ 7:20am

      Re:

      If the courts will invent QI out of thin air, what makes you think they won't strike down a law repealing it, citing some made up BS reason like they did last time when inventing it.

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      • identicon
        anymouse, 17 Sep 2018 @ 10:05am

        Re: Re:

        Next will be the special laws (well not really "laws" but court made up structures - like your imaginary friend when you were a kid, there when you needed him, but nobody else could see or verify him...):
        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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    • identicon
      Anonymous Coward, 17 Sep 2018 @ 9:27am

      Re:

      Congress could have clarified that no, they didn't intend that to be the law

      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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  • identicon
    Anonymous Coward, 17 Sep 2018 @ 5:45am

    "Qualified immunity is a legal doctrine in United States federal law that shields government officials from being sued for discretionary actions performed within their official capacity, unless their actions violated "clearly established" federal law or constitutional rights.[1] "

    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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    • identicon
      Anonymous Coward, 17 Sep 2018 @ 6:13am

      Re:

      Because they are more powerful than us and wanted it that way. Our government isn't in it for our best interests, but rather their own. Jefferson has many quotes on how you can't ever trust your government to be working on your behalf unless you have more weapons than it does.

      reply to this | link to this | view in chronology ]

    • identicon
      Anon, 17 Sep 2018 @ 8:39am

      Why Qualified Immunity

      I think you and the article' author misunderstand - as does the judiciary. Qualified Immunity is a legitimate doctrine intended to prevent those engaged in the execution of their office from being harassed by lawsuits over the legitimate actions of their job. The "grey areas" are of course those edges of legitimate action.
      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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      • icon
        Anonymous Anonymous Coward (profile), 17 Sep 2018 @ 8:53am

        Re: Why Qualified Immunity

        Not sure I agree. A better way to secure the doctrine (which should not exist) would be to better define the qualifiers in qualified immunity. Remove the settle law crap and put in place both a constitutional review as well as the laws that police officers should know (depending upon jurisdiction) despite the Supreme Courts antics.

        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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      • identicon
        Anonymous Coward, 17 Sep 2018 @ 12:02pm

        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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  • identicon
    Anonymous Coward, 17 Sep 2018 @ 6:59am

    broken by design

    The most interesting point is despite the US Supreme Court has violated basics principles like "all men are created equal" and declared some people being more equal than others the legislature hasn't put any effort into correcting this imbalance.

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  • icon
    Anonymous Anonymous Coward (profile), 17 Sep 2018 @ 7:19am

    Up and Down, recognizing the responsibility Congress has

    It isn't just that it is up to Congress, it's that Congress needs to get down. Down from their 'must do something' about whatever was in last nights headline perspective. Down from their incessant lust for power (aka re-election) money grubbing deal making with cash brokers (aka lobbyists) behavior. Down from their productivity schedule where making more laws seems better than making good law. Down from their partisan rules where even when good laws are proposed adding riders to achieve 'moral' points or where internally elected 'officials' can prevent legislation from ever being voted on by the entirety of the legislature. Down from doing the business of 'government' (often aka corporations or party leaders) and up to doing the business of the people.

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  • identicon
    Anonymous Coward, 17 Sep 2018 @ 7:48am

    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.

    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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    • identicon
      bob, 17 Sep 2018 @ 8:35am

      Re:

      But one downside to that insurance is that medical costs have increased for a everyone. Cities and other government entities already have insurance but adding more will increase their operating costs. Course if insurance gets too high bad apples will be let go. Regardless insurance companies wwill be the big winners here.

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      • icon
        Anonymous Anonymous Coward (profile), 17 Sep 2018 @ 8:47am

        Re: Re:

        While I am not in favor of supplying more money to insurance companies, I think the premise of the AC's idea is that individual police would be paying the premiums, and that the insurance companies would refuse coverage to those who cost them more. Of course it would be necessary to require such insurance in order to get a law enforcement...well let's call it a license...and that without such coverage no license could be issued, or if coverage lost the license revoked.

        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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        • icon
          Zgaidin (profile), 17 Sep 2018 @ 11:29am

          Re: Re: Re:

          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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          • icon
            zboot (profile), 18 Sep 2018 @ 5:06pm

            Re: Re: Re: Re:

            This isn't correct. Police get sued for rights violations, even when they haven't violated rights. They also get sued when they do something that unintentionally violates rights which is what QI was originally supposed to protect - letting them do their job correctly, without worry that an unintentional error would end them financially and professionally.

            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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      • identicon
        Anonymous Coward, 17 Sep 2018 @ 10:37am

        Re: Re:

        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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        • identicon
          bob, 17 Sep 2018 @ 12:18pm

          Re: Re: Re:

          Hopefully the police change and respect people's rights. But regardless the insurance companies will get paid. And most likely it will be citizens that end up paying.

          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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  • identicon
    Anonymous Coward, 17 Sep 2018 @ 8:10am

    "Exceptions for judges. That's it."

    So it seems the government would like all its employees to be considered to be judges.

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    • identicon
      Anonymous Coward, 17 Sep 2018 @ 10:51am

      Re:

      That is truer that you might think. Especially when it comes to "Law Enforcement" as officers who don't have to know the laws themselves are called upon to make judgement calls very frequently. All they need is to claim they acted "in good faith" to be excused from liability.

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    • identicon
      Anonymous Coward, 17 Sep 2018 @ 6:11pm

      Re:

      So it seems the government would like all its employees to be considered to be judges.

      IYAM. THUHLAW.

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  • identicon
    Anonymous Coward, 17 Sep 2018 @ 10:42am

    Surely, the government who writes the laws obviously puts the sneaky back doors in the chambers (so to speak) so as to secure the ability to avoid, when pressed, or to excuse themselves any liability this side of a total breakdown and revolt from those they wish to rule.

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    • identicon
      Anonymous Coward, 17 Sep 2018 @ 11:03am

      Re:

      At most, tHEY must view society as docile sheep, albeit some with toenails that need to be trimmed and some with very sharp teeth. They've been yanking the ones with horns out and throwing them behind bars.

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  • icon
    That One Guy (profile), 17 Sep 2018 @ 12:40pm

    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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    • icon
      The Wanderer (profile), 17 Sep 2018 @ 8:23pm

      Re: A decidedly one-sided concern

      I think the idea is supposed to be "we need police officers, and if we permit lawsuits against them at the scale and with the frequency which would happen - even for good officers, who don't actually do anything wrong - without qualified immunity, there would be so much disincentive to become a police officer that we wouldn't have nearly as many officers as we need".

      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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      • icon
        That One Guy (profile), 17 Sep 2018 @ 9:14pm

        Re: Re: A decidedly one-sided concern

        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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        • icon
          The Wanderer (profile), 18 Sep 2018 @ 5:10am

          Re: Re: Re: A decidedly one-sided concern

          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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        • identicon
          Anonymous Coward, 18 Sep 2018 @ 8:46am

          Re: Re: Re: A decidedly one-sided concern

          That is outright fearmongering special pleading. Doctors are essential to our health yet they can be held liable for malpractice and find their own judgements countermanded with cudgels of the law by the DEA among others under vaguer parameters like prescribing "too many pain pills" without regards to how many of their patients have chronic or acute pain.

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  • identicon
    Personanongrata, 17 Sep 2018 @ 4:23pm

    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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  • identicon
    John Smith, 17 Sep 2018 @ 5:00pm

    Except this immunity exists because without it, few would risk working for the the government, or demand much higher wages plus indemnification against lawsuits.

    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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    • identicon
      Wendy Cockcroft, 18 Sep 2018 @ 7:19am

      Re:

      Eh, I kinda-sorta half agree with you, John. Why would anyone be afraid of lawsuits unless they're violating tort law in some way, shape, or form.

      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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    • identicon
      Anonymous Coward, 21 Sep 2018 @ 8:30am

      Re:

      "Except this immunity exists because without it, few would risk working for the the government,"

      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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  • icon
    Bergman (profile), 17 Sep 2018 @ 7:46pm

    Three Branch System

    The way the concept of Qualified Immunity reads to me is a judicial branch usurpation of Congressional authority, to be honest.

    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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    • identicon
      John Smith, 18 Sep 2018 @ 1:19am

      Re: Three Branch System

      That's our system of checks and balances, like three friends going out to a bar, where any one of them can take the car keys from the others if they think it's necessary to prevent drunk driving.

      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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      • identicon
        Wendy Cockcroft, 19 Sep 2018 @ 2:29am

        Re: 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.

        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.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Sep 2018 @ 8:33am

        Re: Re: Three Branch System

        "The government would shut down fo lack of employees if those who worked for it had to risk private lawsuits."

        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.

        reply to this | link to this | view in chronology ]


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