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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 q

by 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
        I'm not the biggest "law and order" fan, but we are asking law enforcement officers to make split-second decisions with limited information about the intention of the people they're interacting with. Even believing that government power must be carefully and scrupulously limited, I would hesitate to put a police officer into a mindset where they're adopting the obligations to enforce society's laws but where we force them out somewhat naked in terms of support from that society.
        afthonos 6y ago
        I think that’s only valid if there is actually a serious danger to being a police officer. While officers really like to play up their dangerous job, it’s actually quite safe, because it turns out most people know that killing a cop is a stupid thing to do for a near infinite number of reasons. A clear example is the common “split second decisions” scenario. No one is complaining about shoutouts with drug dealers. They’re complaining about a kid getting shot by a cop repeatedly trying (and failing) to kill the tied down family dog. They’re complaining about correctional officers leaving people in a room with their own feces for a week. Those are not split-second decisions, yet they got QI. Using that trope is exactly like using child abuse as an excuse to curtail privacy and other liberties: it’s a ploy to paint opponents as morally reprehensible, because who could support that? In fairness, some version of QI is, in my opinion, necessary; we’ve just gone way too far towards no consequences for egregious behavior.
- alteria 6y ago
  QI is extremely problematic like you've mentioned 1) You need specific case law to overcome QI 2) Little to no case law exists because of QI Some of the QI cases are egergious like Corbitt vs. Vickers [1] Allegation: Suspect wanders into yard where six children are playing. Coffee County, Ga. police order everyone to ground, press guns against the children’s backs. One officer shoots twice at nonthreatening dog. He misses but does hit a 10-year-old, who was lying face down an arm’s length from the officer. Excessive force? Eleventh Circuit (over a dissent): Qualified immunity. No prior cases telling officers not to unintentionally shoot innocent bystanders. (Nor does this decision establish such a precedent.) [2] (IJ has a clear agenda, but their description is pretty factual) [1] https://www.scotusblog.com/case-files/cases/corbitt-v-vickers/ https://www.scotusblog.com/case-files/cases/corbitt-v-vicker... [2] https://ij.org/sc_case_entry/corbitt-v-vickers/ https://ij.org/sc_case_entry/corbitt-v-vickers/
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.

by abduhl 6y ago

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
      I'm not the biggest "law and order" fan, but we are asking law enforcement officers to make split-second decisions with limited information about the intention of the people they're interacting with. Even believing that government power must be carefully and scrupulously limited, I would hesitate to put a police officer into a mindset where they're adopting the obligations to enforce society's laws but where we force them out somewhat naked in terms of support from that society.
      - afthonos 6y ago
        I think that’s only valid if there is actually a serious danger to being a police officer. While officers really like to play up their dangerous job, it’s actually quite safe, because it turns out most people know that killing a cop is a stupid thing to do for a near infinite number of reasons. A clear example is the common “split second decisions” scenario. No one is complaining about shoutouts with drug dealers. They’re complaining about a kid getting shot by a cop repeatedly trying (and failing) to kill the tied down family dog. They’re complaining about correctional officers leaving people in a room with their own feces for a week. Those are not split-second decisions, yet they got QI. Using that trope is exactly like using child abuse as an excuse to curtail privacy and other liberties: it’s a ploy to paint opponents as morally reprehensible, because who could support that? In fairness, some version of QI is, in my opinion, necessary; we’ve just gone way too far towards no consequences for egregious behavior.
alteria 6y ago
QI is extremely problematic like you've mentioned 1) You need specific case law to overcome QI 2) Little to no case law exists because of QI Some of the QI cases are egergious like Corbitt vs. Vickers [1] Allegation: Suspect wanders into yard where six children are playing. Coffee County, Ga. police order everyone to ground, press guns against the children’s backs. One officer shoots twice at nonthreatening dog. He misses but does hit a 10-year-old, who was lying face down an arm’s length from the officer. Excessive force? Eleventh Circuit (over a dissent): Qualified immunity. No prior cases telling officers not to unintentionally shoot innocent bystanders. (Nor does this decision establish such a precedent.) [2] (IJ has a clear agenda, but their description is pretty factual) [1] https://www.scotusblog.com/case-files/cases/corbitt-v-vickers/ https://www.scotusblog.com/case-files/cases/corbitt-v-vicker... [2] https://ij.org/sc_case_entry/corbitt-v-vickers/ https://ij.org/sc_case_entry/corbitt-v-vickers/

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.