3 ms·
Your point of view (which I admit sounds informed, so please don’t take this the wrong way) seems to be at odds with how qualified immunity is generally discuss
by singleshot_ 4y ago
Your point of view (which I admit sounds informed, so please don’t take this the wrong way) seems to be at odds with how qualified immunity is generally discussed. Typically I’ve heard it referred to as an immunity not from damages, but from the lawsuit itself. Law.Cornell.edu seems to agree with me.
Which leaves me a little confused as to what exactly you think is false. That QI is an immunity from suit? Or that there is no fact-finding prior to a QI dismissal?
As an idiot with a PACER account I think I deserve an explanation. If I promise not to argue with you, will you please explain this a little more deeply?
(And yes, I read Harlow although I admit it didn’t make me feel much smarter).
- torstenvl 4y agoYou appear to be conflating a principle with its parameters. It's a category error. It's like being an early 2000s Java programmer and claiming that automatic memory management means freezing program execution at random intervals. Under Harlow there is a presumption in favor of the official such that these suits are often dismissed at the 12(b)(6) stage. However, that is incidental. It is specific to Harlow. As such, while perhaps a valid criticism of the Harlow QI regime, it is not a valid criticism of QI; just as the valid criticism of coarse stop-the-world mark-and-sweep is nevertheless not a valid criticism of automatic memory management. It's important to realize that the underlying principle of qualified immunity - that a person is distinct from their office - is centuries old and a fundamental bedrock of American democracy. It's why Marbury sought a writ of mandamus in the first place, rather than wringing money out of Madison. The qualified immunity regime we have now is not historically representative.