3 ms·

I think the idea is similar to the "ex post facto" provision of the constitution. In "ex post facto", you can't be convicted for something if, when you did it,

by gwd 4y ago

I think the idea is similar to the "ex post facto" provision of the constitution. In "ex post facto", you can't be convicted for something if, when you did it, it was legal. The idea here is that police can't be sued for something if, when they did it, there was no court ruling explicitly saying "that's a violation of constitutional rights". So a court could say, "Yes, this court is now declaring what those officers did to be unconstitutional. But there was no clear court case at that time, so they can't be sued unless they do it again." Which leads to really bizzare outcomes, like this instance -- or an instance where police just outright stole stuff from a guy [1]. A court had never ruled that stealing from citizens was unconstitutional, so he couldn't sue them for it. [1] https://reason.com/2020/05/19/qualified-immunity-supreme-court-jessop-theft-kelsay-police-brutality/ https://reason.com/2020/05/19/qualified-immunity-supreme-cou...

adgjlsfhk1 4y ago
there's a really big difference between ex post facto and specific existing case-law.
bradleyjg 4y ago
Note that qualified immunity is entirely a matter of statutory interpretation and not at all constitutional law. Congress can change any part of the doctrine or get rid of it altogether at any time.
- anonymouskimmer 4y ago
  And yet somehow this statutory interpretation trumps Constitutional prohibitions. What does "supreme law of the land" even mean if the Supreme Court can privilege a statute over redress for the violation of Constitutional rights?
  - bradleyjg 4y ago
    The Supreme Court rarely implies a cause of action for money damages. The inherent constitutional remedies are things like the fruit of the poisonous tree doctrine that forbids things found in an illegal search to be introduced at a criminal trial. Because Congress created the cause of action, it can control its contours (whether QI is a reasonable interpretation of the statute is a different question.)
    - anonymouskimmer 4y ago
      This is a good point. I understand what you're saying. But it makes various rights toothless in all ways, since there's effectively no way to enforce them. For instance, how do you post facto enforce the third amendment without a tort claim? > Because Congress created the cause of action I've seen this rationale stated before, but in common law, and natural law before that ("natural" as in how it functions, not the political philosophy), didn't some of these causes of action pre-exist Congress, and thus should be grandfathered in as ninth amendment rights?
      - bradleyjg 4y ago
        This gets into the distinction between law and equity. It’s a pretty obscure topic for non-lawyers but the gist is that a court sitting in equity would almost never award damages. While the Supreme Court is a court of law and equity, the power to imply a cause of action stems from its inheritance of equity powers and so is limited by them as well. (This is all based on memory and so the details may be off.)
ncallaway 4y ago
If the reasoning was actually based on an ex post facto analysis, wouldn’t it have to apply broadly to all actors and all civil lawsuits? The fact that qualified immunity only applies to state actors in their job functions makes me skeptical of the “ex post facto” reasoning. If that’s the case, why isn’t it a much more broad concept?

by gwd 4y ago

adgjlsfhk1 4y ago

there's a really big difference between ex post facto and specific existing case-law.

bradleyjg 4y ago

Note that qualified immunity is entirely a matter of statutory interpretation and not at all constitutional law. Congress can change any part of the doctrine or get rid of it altogether at any time.

anonymouskimmer 4y ago
And yet somehow this statutory interpretation trumps Constitutional prohibitions. What does "supreme law of the land" even mean if the Supreme Court can privilege a statute over redress for the violation of Constitutional rights?
- bradleyjg 4y ago
  The Supreme Court rarely implies a cause of action for money damages. The inherent constitutional remedies are things like the fruit of the poisonous tree doctrine that forbids things found in an illegal search to be introduced at a criminal trial. Because Congress created the cause of action, it can control its contours (whether QI is a reasonable interpretation of the statute is a different question.)
  - anonymouskimmer 4y ago
    This is a good point. I understand what you're saying. But it makes various rights toothless in all ways, since there's effectively no way to enforce them. For instance, how do you post facto enforce the third amendment without a tort claim? > Because Congress created the cause of action I've seen this rationale stated before, but in common law, and natural law before that ("natural" as in how it functions, not the political philosophy), didn't some of these causes of action pre-exist Congress, and thus should be grandfathered in as ninth amendment rights?
    - bradleyjg 4y ago
      This gets into the distinction between law and equity. It’s a pretty obscure topic for non-lawyers but the gist is that a court sitting in equity would almost never award damages. While the Supreme Court is a court of law and equity, the power to imply a cause of action stems from its inheritance of equity powers and so is limited by them as well. (This is all based on memory and so the details may be off.)

ncallaway 4y ago

If the reasoning was actually based on an ex post facto analysis, wouldn’t it have to apply broadly to all actors and all civil lawsuits? The fact that qualified immunity only applies to state actors in their job functions makes me skeptical of the “ex post facto” reasoning. If that’s the case, why isn’t it a much more broad concept?