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> Under qualified immunity, government officials can be held accountable for violating someone’s rights only if a court has previously ruled that it was “clearl

> Under qualified immunity, government officials can be held accountable for violating someone’s rights only if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. Who made this rule?! So a court would have to rule on each and every possible abuse of the law by a government official??

x86_64Ubuntu 2y ago
From what I've seen, it has to have been "clearly established" before meaning that unless there is an incident already labeling the act unconstitutional, no dice for the poor lady. It's how you make it so that as society evolves, officers can't be held accountable for new acts.
- ceejayoz 2y ago
  Yup. And "clearly established" has to be very clearly established. Several examples in https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure#regularly-denies-justice-victims https://www.cato.org/policy-analysis/qualified-immunity-lega... > Jessop v. City of Fresno: The Ninth Circuit granted immunity to the officers. The court noted that while “the theft” of “personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” > Corbitt v. Vickers: ... the court went on to say that “[n]o case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.” > Kelsay v. Ernst: The majority noted that there were no prior cases involving the “particular circumstances” of this case; that is, no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.” > Allah v. Milling: The appellate court agreed that the prison guards violated Allah’s rights, specifically holding that this treatment was unlawful punishment because Allah’s treatment “cannot be said to be reasonably related to institutional security, and Defendants have identified no other legitimate governmental purpose justifying the placement.” Nevertheless, the court said the guards were entitled to immunity because there was no prior case concerning the particular disciplinary practice employed by the prison. It's basically judicial Calvinball. "Oh, established case law says you can't kill an innocent person at 6:35pm, but it's not clearly established you can't kill an innocent person at 6:36pm!"
- 1024core 2y ago
  But hasn't it been "clearly established" by now that sharing someone else's photos from their phone is not legal??
  - UncleMeat 2y ago
    Nope. This is the trick that courts use in qualified immunity cases. You can't just say "well obviously this is a violation of 4th amendment rights by any person's plain reading." You need a prior case where a judge found this specifically. And that prior case needs to match the facts of the current case basically exactly. Any minor difference can be leveraged to argue that this case is a new set of facts and that there is no prior case that would inform a cop that what they are doing is in fact a violation of rights and so they are immune from civil action. The outcome of each one of these cases is that the cop gets off scot free and the court says "the next time this specific thing happens under our jurisdiction you can sue" but that specific thing never happens again for the rest of time because the boundaries of that specific thing are so tight.
    - tavavex 2y ago
      That's insane. I was vaguely aware that the American system that has grown over the 250-year old foundation was getting rusty, but I never knew it has taken such a dark turn. How far can you take the "precise case" thing then? Does it just apply to the specific action that was done? How far can they legally stretch what's considered to be "novel"?
  - mrguyorama 2y ago
    Nope, because the standard is not "Everybody knows it's wrong to do that", the standard is "A previous case exists where an officer did EXACTLY THE SAME THINGS in EXACTLY THE SAME SCENARIO that established that officer CLEARLY VIOLATED THEIR CONSTITUTIONAL RIGHTS" For us mere mortals to be punished, we don't even have to know the law. For a cop to be punished, there has to be precedent. The funny part is that this situation basically means the first cop to do any illegal act will always get away with it.
banana_feather 2y ago
The Supreme Court just made it up in the 1960s.
seo-speedwagon 2y ago
It was invented by the courts entirely from whole cloth.
mandevil 2y ago
It was created out of whole cloth by the Supreme Court in 1967's Pierson v. Ray. That case was a grim reminder of just how terrible the Supreme Court has always been: 15 Episcopal Priests were taking part in the Freedom Rides in 1961 (racially integrated groups taking public transportation across the South to defacto desegregate what had been defacto segregated, the group was 12 white priests and 3 African-American ones). Two police officers arrested all 15 priests while they were sitting in a restaurant for "breach of the peace." A judge convicted them and sentenced them each to four months in prison. They sued the police officers and the judge for false imprisonment. An all-white Jury found the police officers not liable. The Mississippi state supreme court ruled that the judge couldn't even be sued. A Federal Appeals court found the original law (the breach of the peace law) completely unconstitutional, but that the Judge couldn't be sued for upholding the law as it exists: "Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not." The Supreme Court ruled 8-1 in favor of the Judge and against the Priests, creating the concept of Qualified Immunity. Starting with the mid-aughts conservative turn of the Supreme Court (basically the time that O'Connor is replaced by Alito) it has grown to cover pretty much every act that law enforcement takes, with the modern standard being, basically, "your circuit needs to have found this particular violation to be unconstitutional already for it to count." The recent Supreme Court case finding that President's are immune to prosecution for "Official Acts" has a similar philosophical (though not legal) basis.
- deleted 2y ago
  [deleted]
- enoch_r 2y ago
  Do you honestly think, as a principled position, that police officers should be personally liable for enforcing a law which is later decided to be unconstitutional? For example, if a police officer in 1994 arrested someone for violating the Gun Free School Zones act (struck down as unconstitutional in 1995), should they be personally liable for the damages? Should the judge who decided the case? Similarly, if a police officer in NYC arrested someone in 2018 for violating the ban on "gravity knives" (struck down as unconstitutional in 2019), should they be personally liable? If a police officer in Washington, DC arrested someone for violating the city's ban on handguns in 2007 (struck down by the Supreme Court in 2008), should they be personally liable? Would it be a good thing if police officers and officials refuse to enforce Washington state's ban on "assault weapons", or Oregon's magazine capacity limit, because the "conservative turn" of the Supreme Court means that the law might get struck down as unconstitutional, and then they'd be personally liable for the damages? I think it's clear that QI sometimes leads to bad outcomes, but honestly, I'm not sure how the system would function without some similar concept.
bena 2y ago
It's also a catch 22. This basically says they can't be held accountable for something unless they've already been held accountable for it.

x86_64Ubuntu 2y ago

From what I've seen, it has to have been "clearly established" before meaning that unless there is an incident already labeling the act unconstitutional, no dice for the poor lady. It's how you make it so that as society evolves, officers can't be held accountable for new acts.

ceejayoz 2y ago
Yup. And "clearly established" has to be very clearly established. Several examples in https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure#regularly-denies-justice-victims https://www.cato.org/policy-analysis/qualified-immunity-lega... > Jessop v. City of Fresno: The Ninth Circuit granted immunity to the officers. The court noted that while “the theft” of “personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” > Corbitt v. Vickers: ... the court went on to say that “[n]o case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.” > Kelsay v. Ernst: The majority noted that there were no prior cases involving the “particular circumstances” of this case; that is, no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.” > Allah v. Milling: The appellate court agreed that the prison guards violated Allah’s rights, specifically holding that this treatment was unlawful punishment because Allah’s treatment “cannot be said to be reasonably related to institutional security, and Defendants have identified no other legitimate governmental purpose justifying the placement.” Nevertheless, the court said the guards were entitled to immunity because there was no prior case concerning the particular disciplinary practice employed by the prison. It's basically judicial Calvinball. "Oh, established case law says you can't kill an innocent person at 6:35pm, but it's not clearly established you can't kill an innocent person at 6:36pm!"
1024core 2y ago
But hasn't it been "clearly established" by now that sharing someone else's photos from their phone is not legal??
- UncleMeat 2y ago
  Nope. This is the trick that courts use in qualified immunity cases. You can't just say "well obviously this is a violation of 4th amendment rights by any person's plain reading." You need a prior case where a judge found this specifically. And that prior case needs to match the facts of the current case basically exactly. Any minor difference can be leveraged to argue that this case is a new set of facts and that there is no prior case that would inform a cop that what they are doing is in fact a violation of rights and so they are immune from civil action. The outcome of each one of these cases is that the cop gets off scot free and the court says "the next time this specific thing happens under our jurisdiction you can sue" but that specific thing never happens again for the rest of time because the boundaries of that specific thing are so tight.
  - tavavex 2y ago
    That's insane. I was vaguely aware that the American system that has grown over the 250-year old foundation was getting rusty, but I never knew it has taken such a dark turn. How far can you take the "precise case" thing then? Does it just apply to the specific action that was done? How far can they legally stretch what's considered to be "novel"?
- mrguyorama 2y ago
  Nope, because the standard is not "Everybody knows it's wrong to do that", the standard is "A previous case exists where an officer did EXACTLY THE SAME THINGS in EXACTLY THE SAME SCENARIO that established that officer CLEARLY VIOLATED THEIR CONSTITUTIONAL RIGHTS" For us mere mortals to be punished, we don't even have to know the law. For a cop to be punished, there has to be precedent. The funny part is that this situation basically means the first cop to do any illegal act will always get away with it.

banana_feather 2y ago

The Supreme Court just made it up in the 1960s.

seo-speedwagon 2y ago

It was invented by the courts entirely from whole cloth.

mandevil 2y ago

It was created out of whole cloth by the Supreme Court in 1967's Pierson v. Ray. That case was a grim reminder of just how terrible the Supreme Court has always been: 15 Episcopal Priests were taking part in the Freedom Rides in 1961 (racially integrated groups taking public transportation across the South to defacto desegregate what had been defacto segregated, the group was 12 white priests and 3 African-American ones). Two police officers arrested all 15 priests while they were sitting in a restaurant for "breach of the peace." A judge convicted them and sentenced them each to four months in prison. They sued the police officers and the judge for false imprisonment. An all-white Jury found the police officers not liable. The Mississippi state supreme court ruled that the judge couldn't even be sued. A Federal Appeals court found the original law (the breach of the peace law) completely unconstitutional, but that the Judge couldn't be sued for upholding the law as it exists: "Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not." The Supreme Court ruled 8-1 in favor of the Judge and against the Priests, creating the concept of Qualified Immunity. Starting with the mid-aughts conservative turn of the Supreme Court (basically the time that O'Connor is replaced by Alito) it has grown to cover pretty much every act that law enforcement takes, with the modern standard being, basically, "your circuit needs to have found this particular violation to be unconstitutional already for it to count." The recent Supreme Court case finding that President's are immune to prosecution for "Official Acts" has a similar philosophical (though not legal) basis.

deleted 2y ago
[deleted]
enoch_r 2y ago
Do you honestly think, as a principled position, that police officers should be personally liable for enforcing a law which is later decided to be unconstitutional? For example, if a police officer in 1994 arrested someone for violating the Gun Free School Zones act (struck down as unconstitutional in 1995), should they be personally liable for the damages? Should the judge who decided the case? Similarly, if a police officer in NYC arrested someone in 2018 for violating the ban on "gravity knives" (struck down as unconstitutional in 2019), should they be personally liable? If a police officer in Washington, DC arrested someone for violating the city's ban on handguns in 2007 (struck down by the Supreme Court in 2008), should they be personally liable? Would it be a good thing if police officers and officials refuse to enforce Washington state's ban on "assault weapons", or Oregon's magazine capacity limit, because the "conservative turn" of the Supreme Court means that the law might get struck down as unconstitutional, and then they'd be personally liable for the damages? I think it's clear that QI sometimes leads to bad outcomes, but honestly, I'm not sure how the system would function without some similar concept.

bena 2y ago

It's also a catch 22. This basically says they can't be held accountable for something unless they've already been held accountable for it.