zlacker

Call your representatives. Demand qualified immunity (and civil forfeiture) be eliminated.

>>hedora+(OP)
It cannot be eliminated by legislation. It arises from a SCOTUS decision, and can only be undone by them (at least in the broadest sense).

>>PaulDa+d3
That isn't how it works. Of course it can be done through legislation. That is how the branches balance each other.

>>PaulDa+d3
That's not how this works. Laws can absolutely be changed; in the case of a SCOTUS decision, that's what constitutional amendments are for.

>>chrism+T3
The Supreme Court has ruled on this subject. The Congress can pass a new law but it is unlikely to stand up in court. The existing case law on this is pretty well established.

We need a constitutional amendment.

>>hedora+(OP)
“Call your representative” is vacuous advice. It will achieve nothing. It’s going straight to /dev/null.

>>PaulDa+d3
This is not true. Only their interpretation of the Constitution cannot be overridden by legislation (requires a constitutional amendment). Here, where the Court is interpreting a federal statue, namely 42 U.S.C. § 1983, Congress could in fact change the law to make it clear that the qualified immunity defense the Court made up does not apply.

>>stonog+64
Only required if SCOTUS’s opinion is on a constitutional matter, like 1st amendment rights.

If SCOTUS writes an opinion on a law like DMCA and then the legislature repeals the DMCA, it doesn’t much matter how SCOTUS interprets it because it’s not a law anymore.

>>cataph+J6
This doesn't appear necessarily correct to me. The statute provides the basis for a suit based on deprivation of rights. SCOTUS determined that (potentially independently of any language in the statute) QI exists for various classes of government officials.

Now, if SCOTUS's QI theory is based on the text of 42 U.S.C. § 1983 then certainly the legislature could change/update/replace the statute with something worded differently.

But it isn't clear that their decision is based on that (or any other) statute at all. Some interpretations of Harlow vs Fitzgerald seem to point more to the idea that SCOTUS decided that this immunity was derived from other aspects of the totality of the constitution, USC and precedent. Others see it more the way you suggest, which is that SCOTUS concluded that QI existed based on specific statutory language.

Apparently, we don't have to wait that long to find out, since they will be reconsidering it starting tomorrow.

>>stonog+64
As you may have noticed, whether by design or social context or both, constitutional amendments are essentially impossible to pass.

>>PaulDa+Vg
What I've noticed is that we have nearly thirty of them, and two of them were passed in my lifetime.

>>stonog+9u
The timeline looks like this:

http://www.paufler.net/brettrants/161_amendments_graphs.html

I wouldn't consider that indicative of the ease of passing an amendment. Perhaps you do. It appears to require an increasingly-hard-to-get combination of (1) widespread agreement that a problem requiring an amendment exists and (2) widespread agreement on what the nature of the amendment should be.

>>cataph+J6
Rep. Justin Amash, at least, appears to agree with you (and has proposed an act to make it clear that QI is not a defense). So for now, pending further SCOTUS decisions, I concede that I'm wrong, and that it would be possible to change this via legislation. I apologize for any confusion.