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"Created by the courts" is what opponents of any doctrine say about it. The Supreme Court's view of it is probably quite different. :-) In other words, I think

"Created by the courts" is what opponents of any doctrine say about it. The Supreme Court's view of it is probably quite different. :-) In other words, I think the only ways to get rid of qualified immunity are (1) to get SCOTUS to overrule their own quite recent precedent or (2) pass a constitutional amendment.

dsfyu404ed 6y ago
We have an amendment, the 14th. "...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws". If the law is interpreted as granting qualified immunity to police officers under certain circumstances then it should apply to anyone else who meets those same criteria. To carve out criteria that only applies to cops should run afoul of the 14th amendment.
- abduhl 6y ago
  Qualified immunity is a privilege that flows from the sovereign, not from the individual rights of the police officer. Equal protection does not apply because qualified immunity isn’t a personal protection but rather a governmental protection necessary for the arms of the government (eg - its employees) to carry out their function without fear of litigation. So, it does apply to anyone who meets the same criteria: anyone who is a government employee carrying out their job functions.
  - ashtonkem 6y ago
    In principle this makes sense; you shouldn’t be able to harass the county clerk with lawsuits as they implement laws duly passed by state legislators. There are other mechanisms to challenge laws. The problem comes into play with lethal force, and how transparently thin the excuses tend to be. Qualified Immunity defenses hinge on there being a specific law and precedence that the cops must have known about before doing something illegal, a gross perversion of the principle that “ignorance of the law is no defense”. This leads to clearly unjust situations where cops get away with killing citizens or destroying their property, because there wasn’t sufficiently narrow case law to overcome qualified immunity.
    - abduhl 6y ago
      I don’t disagree that qualified immunity has been extended way beyond where it was even arguably appropriate, but I was just explaining why invoking the 14th for its protections is not appropriate. I am anti-QI, by the way. Not just the current QI reading, but essentially all QI defenses.
      - ashtonkem 6y ago
        Aside from really hating how QI currently works, I’m not anti-QI in principle; but in practice I suspect that what I’d like to see is legally unworkable. Basically I’d love to see QI reserved for low-discretion and non-lethal cases. So QI for a county clerk implementing the law as written, you should sue the state over that, but no QI for police officers who might shoot a citizen. The level of discretion and the consequences for each action should be a factor in whether or not QI applies, IMHO. It’s just not clear to me how that could be accomplished in the current legal framework.
        ncallaway 6y ago
        I think anything that can be undone by the state should be subject to QI. If the State takes money from you, maybe QI applies to that, because if the State is in the wrong it can make you whole. But if the State's agents take your life, or if they take your freedom, the State cannot make you whole. Maybe, then, QI immunity should not apply. These actions are irreversible and do irreparable harm. Further, I think the "knowledge" aspect needs to be dialed way back. Way way back. It shouldn't be sufficient for the state agent to not know about a law. For QI the State should need to show that its legal argument would have a reasonable likelihood of success on the merits. Courts already think about irreparable harm and likelihood of success on the merits when they grant things like a TRO. I think QI could be workable if it applied on similar grounds as a TRO. It's a test courts are familiar with, and it's almost certainly enough to prevent nuisance lawsuits against individuals reasonably discharging their duties.
        sokoloff 6y ago
  - xxpor 6y ago
    Sovereign Immunity is in and of itself a creation of courts, especially in the US. It's more understandable in the English legal system where the law itself derives from the sovereign, but in the US the government derives power from the people. The same reason why the US government can't copyright it's own works is the same reason they shouldn't have SI, and therefore QI.

dsfyu404ed 6y ago

We have an amendment, the 14th. "...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws". If the law is interpreted as granting qualified immunity to police officers under certain circumstances then it should apply to anyone else who meets those same criteria. To carve out criteria that only applies to cops should run afoul of the 14th amendment.

abduhl 6y ago
Qualified immunity is a privilege that flows from the sovereign, not from the individual rights of the police officer. Equal protection does not apply because qualified immunity isn’t a personal protection but rather a governmental protection necessary for the arms of the government (eg - its employees) to carry out their function without fear of litigation. So, it does apply to anyone who meets the same criteria: anyone who is a government employee carrying out their job functions.
- ashtonkem 6y ago
  In principle this makes sense; you shouldn’t be able to harass the county clerk with lawsuits as they implement laws duly passed by state legislators. There are other mechanisms to challenge laws. The problem comes into play with lethal force, and how transparently thin the excuses tend to be. Qualified Immunity defenses hinge on there being a specific law and precedence that the cops must have known about before doing something illegal, a gross perversion of the principle that “ignorance of the law is no defense”. This leads to clearly unjust situations where cops get away with killing citizens or destroying their property, because there wasn’t sufficiently narrow case law to overcome qualified immunity.
  - abduhl 6y ago
    I don’t disagree that qualified immunity has been extended way beyond where it was even arguably appropriate, but I was just explaining why invoking the 14th for its protections is not appropriate. I am anti-QI, by the way. Not just the current QI reading, but essentially all QI defenses.
    - ashtonkem 6y ago
      Aside from really hating how QI currently works, I’m not anti-QI in principle; but in practice I suspect that what I’d like to see is legally unworkable. Basically I’d love to see QI reserved for low-discretion and non-lethal cases. So QI for a county clerk implementing the law as written, you should sue the state over that, but no QI for police officers who might shoot a citizen. The level of discretion and the consequences for each action should be a factor in whether or not QI applies, IMHO. It’s just not clear to me how that could be accomplished in the current legal framework.
      - ncallaway 6y ago
        I think anything that can be undone by the state should be subject to QI. If the State takes money from you, maybe QI applies to that, because if the State is in the wrong it can make you whole. But if the State's agents take your life, or if they take your freedom, the State cannot make you whole. Maybe, then, QI immunity should not apply. These actions are irreversible and do irreparable harm. Further, I think the "knowledge" aspect needs to be dialed way back. Way way back. It shouldn't be sufficient for the state agent to not know about a law. For QI the State should need to show that its legal argument would have a reasonable likelihood of success on the merits. Courts already think about irreparable harm and likelihood of success on the merits when they grant things like a TRO. I think QI could be workable if it applied on similar grounds as a TRO. It's a test courts are familiar with, and it's almost certainly enough to prevent nuisance lawsuits against individuals reasonably discharging their duties.
        sokoloff 6y ago
- xxpor 6y ago
  Sovereign Immunity is in and of itself a creation of courts, especially in the US. It's more understandable in the English legal system where the law itself derives from the sovereign, but in the US the government derives power from the people. The same reason why the US government can't copyright it's own works is the same reason they shouldn't have SI, and therefore QI.