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The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualif
by mandevil 2y ago
The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualified Immunity is that the constitutional violation (in this case, the violation of her 4th Amendment rights) needs to have been clearly found in previous cases in this particular circuit (or by the Supreme Court itself). These sorts of search and seizure cases hinge on things like "she signed a document allowing another agency to search her phone, but not share it with another one, and they want to search for anything that might implicate her boyfriend an officer for Brady violations" and the 9th Circuit had never found this kind of sharing without consent or warrant for searching your own officers history to be a constitutional violation. So in this case, she can't sue for damages etc. But the next case that exactly meets these parameters with no novel grounds for argument, they can be sued.
Not surprisingly, clever lawyers find a way to make something slightly novel in most every one of these cases, at least in one particular circuit, and so basically nothing of consequence happens.
This entire doctrine only exists because the Supreme Court invented it, 8-1, in the 1960's to prevent Freedom Riders from suing courts and police officers who arrested them for trying to racially integrate public places. And somehow it's gotten worse over time.
- opo 2y ago>...The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualified Immunity is that the constitutional violation (in this case, the violation of her 4th Amendment rights) needs to have been clearly found in previous cases in this particular circuit (or by the Supreme Court itself). The modern over-expansion of QI actually started in 1982: >The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982). Since then, while several justices (Kennedy, Scalia, Thomas, Sotomayor ) have sometimes dissented and criticized the over expansion of QI, the overall court doesn't seem to want to touch it. https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure#creation-evolution-qualified-immunity https://www.cato.org/policy-analysis/qualified-immunity-lega...
- mandevil 2y agoIt's a series of cases, from 1967's Pierson v. Ray, through Harlow v. Fitzgerald (1982) to Pearson v. Callahan (2009) that made QI so insidious. (Each of those cases was 8-1 or 9-0, incidentally. The Supreme Court gets the respect it deserves.) The current status quo where QI protects against any consequences to police brutality or monetary damages to violations of civil rights is largely a result of Pearson v. Callahan, which is what I was referring to.