The idea is that people acting on behalf of the sovereign deserve some of the immunity that the sovereign itself takes advantage of. The immunity allows agents of the state to act with less fear of reprisals, especially in edge cases, or when dealing with powerful counter-parties.
There seems like there should be some mechanism in place to limit or control their exposure to criminal prosecution.
At a certain point it seems like it would be too risky to oneself to do your job, if there are too many ways you can be prosecuted for doing it.
But on a specific level I have no idea.
They are, by complete coincidence, about to possibly take on some QI cases this week.
https://reason.com/2020/05/29/the-supreme-court-has-a-chance...
The original laws of this country did not permit lawsuits against government employees acting in an official capacity. After the Civil War, the Civil Right Act of 1871 was passed allowing citizens and residents to sue government officials for civil rights violations suffered under color of law. The qualified immunity doctrine was created by the courts after that to shield public officials from nuisance suits for discretionary actions (generally meaning bureaucratic actions) by people angry over actions that went against them (i.e., for denials of licenses, judgments, etc.).
Unfortunately, due to the volume of nuisance suits, this doctrine got stronger and stronger over time. At some point, the courts began applying this strengthened doctrine intended for bureaucratic actions to police actions.
Its text is quite straightforward, essentially saying that judicial officers are liable for the violation of a person's rights.
However the concept of "Qualified Immunity" is a Supreme Court invention which began to be applied in the late 1960s, and which today effectively shields police from any meaningful (civil) liability as originally defined by the law. It's hard to square the modern interpretation and its effects with the clear language in the statute, yet here we are needing to pass a law that effectively says "yes this law actually means what it says".
https://theappeal.org/qualified-immunity-explained/
IANAL.
But why shouldn't all people be protected from nuisance suits over reasonable mistakes?
Qualified immunity is what prevents you from personally suing each member of the planning commission to pressure them in to reversing their decision. Think of it like the legal system throwing an exception, we aren't even going to consider this because your beef is with the city not an individual employee.
Police have qualified immunity because otherwise they would face personal lawsuits every time they wrote a rich guy a speeding ticket, or a convicted murderer has nothing better to do but get his law degree in prison.
In my opinion, qualified immunity is _not_ the problem. If an officer does something in their official capacity that is wrong, it is up to the department and the DA to deal with. Just like if the hypothetical planning commission did something illegal. Unfortunately police unions prevent that from being a viable option.
It seems anti-common law. The common law requires the ability to generate new precedents.
Exactly: this should really be in the realm of criminal prosecution, not civil suits, in which case the positives of qualified immunity could remain in place. But we have such a toxic, broken, in-group culture in our police force that we cannot rely on self-directed justice to happen. So I think we have no other option but to open the floodgates on civil suits.
Here I can’t sue mr Amash if I disagree with his bill, but I can sue him as a private citizen if he violates my civil rights as a person.
Qualified Immunity says that an officer can't be sued for violating civil rights (Section 1983) unless it was clear at the time of the action that it was in violation of the law. It has nothing to do with criminal liability in the event the officer commits a crime; it's a restriction on the civil side.
There is a grain of good policy here, becuase if there is a lawsuit which plantiff is inevitably going to lose, having a clear rule that stops the lawsuit before discovery saves serious time and money.
There are two independent problems with it, though:
1. A judge who just doesn't like 1983 lawsuits can always find a trivial manner to distinguish the case from existing precedent; e.g. distinctions-without-differences like "the court has ruled you can't detain someone for 72 hours without access to water but the plantiff was only detained for 70."
2. There is no incentive for anyone to be the first mover to file a lawsuit against any particular practice since the first mover will lose on qualified immunity grounds.
The Supreme Court has ruled a lot of things that we would not allow to stand today. For instance, the Dred Scott Case [1] "In a landmark case, the United States Supreme Court decided 7–2 against Scott, finding that neither he nor any other person of African ancestry could claim citizenship in the United States, and therefore Scott could not bring suit in federal court under diversity of citizenship rules. Moreover, Scott's temporary residence outside Missouri did not bring about his emancipation under the Missouri Compromise, as the court ruled this to have been unconstitutional, as it would "improperly deprive Scott's owner of his legal property".
See: https://www.cato.org/blog/qualified-immunity-supreme-courts-...
I realize that a huge number of people completely disagree with that, and I don't really know how to persuade any of them other than to urge them to examine history and note the consequences of authoritarianism.
I think the best way forward is to force individual officers to carry liability insurance that covers settlements. This will have the effect of pricing out repeat offenders from the job.
But police arrest a lot of people, and they aren't experts on the law. They will get things wrong frequently. They can't be expected to make the correct call every time, but they also can't do the job if the average officer is regularly sued. So the courts came up with the "reasonable" standard. If the officer took away your Constitutional rights, but it was reasonable for them to think it'd be okay, for example if it was a fuzzy legal area or an obscure point of law (what if there's a split court on whether photography can be prohibited in subways?), then you can't sue them. In effect, you can't sue a police officer for acting like a "reasonable" police officer.
So far so good. Police can keep policing without also being lawyers, but people can still sue police officers who are clearly violating their rights. In theory.
But then in 1982 with Harlow v. Fitzgerald, the Supreme Court had an issue with Nixon's aides and whether they deserved absolute or qualified immunity, and they came up with tests. Although it wasn't the focus of the case, the decision happened to grant that qualified immunity applied to every government official couldn't be personally liable for damage unless they were violating a "clearly established" right.
So now police officers were protected by a different standard than a vague "is it reasonable" test. Now the test becomes "has it been clearly established that this is a right." This isn't awful in theory, but in practice the courts have decided that "clearly established" means "has this exact thing come up before and has a court decided that this is or is not constitutional/legal?" This leads to truly ridiculous scenarios, like a judge saying "okay, sure, there have been cases where we decided that you can't use deadly force against unarmed people fleeing by car, but we haven't decided that this is the case if the car is near a highway, so that hasn't been 'clearly established.'"
Anyway, that's the state of things. There are certainly plenty of scenarios where the previous standards of "reasonable" and "good faith" would seem perfectly legitimate. There are oodles of situations which requires a tricky multi-part test undertaken by a judge, and for such cases, a police officer shouldn't be sued for getting it a bit wrong. So the basic concept isn't fundamentally ridiculous, but the "clearly established" test for qualified immunity is.
Legislation = Legislation (or statutory law) is law which has been promulgated (or "enacted") by a legislature or other governing body or the process of making it
Qualified Immunity = Qualified immunity is a legal doctrine in United States federal law
Legal doctrine = A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case
So it's a bit of a grey area, but I think the greater point stands that this is how court cases are decided vs. a law in the traditional sense that people think about laws.
The changes that got us here today do come in the late 60s, while the country was dismantling Jim Crow. I can't help but think this was used as a bulwark to ensure that even if the law of equality was enforced, social "customs" in policing could ensure that it was a moot point.
Put another way, if your local DMV agent is acting funny, you can still sue the DMV, even if you can't sue the agent directly, FWIU
Anyway, hopefully the SC will throw this all out in the coming weeks.
The commenter is saying that the fact that this isn't a valid lawsuit is what is meant by qualified immunity, I believe.
> Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U. S. 356, 363 (2012) (internal quotation marks omitted).
>
> … Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.
This may not be true in other areas, I know that many countries (and Quebec) have civil law, where legislation is more extensive.
> Are there any examples
Your house catches fire, you're unconscious from smoke inhalation, and your daughter is trapped in her bedroom by the blaze. Emergency responders decide to enter your home to rescue you and your daughter. On the way in, one of them breaks something very important to you. Can you sue for damages? Can you sue for trespassing? Did they "break and enter" your home?
Common law, which is to say law that is not codified but defined by judicial decision making, is law "in the traditional sense that people think about laws" just as much as statute law.
In Michigan, for example, murder is a common law offense: no legislation exists that defines what murder is, although penalties etc. are legislated.
QI doesn't apply only to police officers, indeed, the modern framing was established in a lawsuit against Presidential aides on a federal contracting matter. (And done in the course of denying their claim of absolute immunity.)
Were QI eliminated, you can bet the bulk of cases would be deep-pockets corporate interests suing individual government officials, not the kind of law enforcement issues that most of the media attention on QI focuses on.
Those other 3 officers (and the entire department) need to have skin in the game in that situation.
Yes retired officers should also be "reaping what they sow".
I don't know if would work in practice but there are multiple reasons to recommend it.
edit- just to be clear this would have to be negotiated as part of the union agreement and not something a court could just do.
One idea: If a lawyer brings n invalid lawsuits within m months (where n, m are magic numbers, n preferably under three, m preferably over twelve), the lawyer gets disbarred. The only problem is: who decides whether a lawsuit is valid? Is there an objective way to judge this?
Well, police unions, district attorneys, judges, elected officials, and the political process itself. Oh, and the police themselves. Without the cooperation of the entire system, police unions have little power over situations involving illegal acts.
Bad police should get priced out of the job as their insurance premiums make the job less and less profitable.
The worst should become unemployable as police when they become uninsurable.
Getting sued is expensive, stressful, and time consuming no matter how the case turns out.
If you sue all the commissioners every time they issue a decision that you don't like sooner or later they'll see your next request and think "Can I afford the inevitable lawsuit if I say No like I should?" and/or "Can I take the stress? Can my family?" So next time they'll give you what you want just to avoid that whole mess.
IANAL but it sounds like qualified immunity is intended to short-circuit this: even if you made a reasonable mistake here and there you can't be sued by some bullying jerk.
In theory, elected officials and journalists should be able to keep police force in check. But in reality, if you make enemy of your local police force, life is going to be very hard for you.
A friend gave up on journalism, in major part due to her stint at reporting on local police issues.
shields police officers, not police departments.
The part I don't understand is that does QI prevent or chill suing departments (which have more money than officers), who then could sue officers for exceeded their job duties?
So are there any good counterexamples of it being used in a beneficial way?
They have more control over the behavior of current police officers than I do.
Believe me, if bad cops start taking money out of the pockets of the rest of the police, actual reform would come much quicker.
Same reason the entire football team has to take a lap when one person is screwing around. That person quickly becomes unpopular.
The police pension funds work the same way. If the Minneapolis police pension fund was sued tomorrow and wiped out, the city still owes the police their pensions just the same as before. The money to pay those obligations has to come from somewhere. I suspect that it would come from the city.
Anyone can make a complaint to them, and they will investigate, and if they believe the law has been broken, can prosecute individuals (in a regular court) or fine police departments as they see fit.
An anti-slapp law provides a short-circuit motion to dismiss. But the legal merits are still evaluated–just much earlier. An anti-slapp motion basically says: "Even if everything the plaintiff said were true, it's not legally actionable so end the case now".
Qualified Immunity is insane because it doesn't require a legal evaluation of the case. Qualified Immunity (practically) says: "because this exact fact pattern hasn't been tested before, the officer couldn't have known it was specifically wrong. Since the officer couldn't have known it was specifically wrong, we don't need to go any further".
That means, a case dismissed because of QI doesn't even end up demonstrating that the fact pattern was legally wrong!
One approach would be to have the judge say, "actually that addition looks fine to me, the commissioners shall pay you the corresponding value out of their kids' college funds."
Another would be, "I'm not the planning commission, that's their decision to make, unless they've acted outside the bounds of their charter, tough shit."
Qualified immunity is essentially the latter.
Here's an example. In 2018, a police officer slammed an unarmed man into the ground. Look at the judge's decision: http://graphics.thomsonreuters.com/srepfiles/qualified-immun...
"In so holding, the Court notes that a court can almost always manufacture a factual distinction. For example, here, McGarry was in his kitchen, while York was in a Target parking lot. That kind of factual difference and all of the factual differences listed above should not make a difference in the qualified immunity analysis, but, using Judge -- now Justice -- Gorsuch’s test from Kerns v. Bader, they “might make a constitutional difference,” 663 F.3d at 1187 (emphasis in original), so the Court must conclude that the officer is entitled to qualified immunity. While the Court thinks that a reasonable officer should be able to discern from York that grabbing and throwing an unarmed man to the ground without warning for arguing with a police officer amounts to excessive force, Justice Gorsuch would probably think that the police officer’s Taser threat in York is a fact that might make a difference."
The judge very much wants to NOT grant qualified immunity, but he's up against a wall and is angry about it.
It would absolutely have to be part of the negotiated agreement with the police unions and yes the retired officers of 2040 should be impacted.
How many of your tax dollars are you willing to pour into addressing the volume of nuisance cases then?
Issuing or denying a permit could easily have millions of dollars of impact. Nobody in their right mind would agree to take that kind of personal responsibility without a proportionally high profit.
If a cable tech steals something from your house, is the cable company liable, or the cable tech?
Edit: a similar doctrine should (but doesn't) apply to decisionmakers at large corporations. If the CEO is told repeatedly about a safety failure and refuses to take action, it's ridiculous to me that the CEO isn't personally liable for any damage or injury caused as a result.
It only protects a government employee who makes a discretionary decision as part of their normal duties. This might mean they get it wrong, but if they can show their decision was reasonable and (where relevant) pursuant to a process established by the agency, that's fine. In that case, the problem is the process not the employee, and so the proper defendant is the agency not the employee that is simply following procedures set forth by the agency.
In the case of Federal Legislators, their immunity is written into the constitution explicitly.
No such explicit provision exists for government employees.
This would imply the tactic works (and that IRS agents probably need more protection too).
https://www.latimes.com/archives/la-xpm-1991-08-13-mn-861-st...
Qualified immunity applies precisely because they didn't do anything illegal (based on the limited facts of the hypo). If they did something illegal, then qualified immunity would not apply.
Standing: without a reason that looks remotely viable, a court might just throw it out without requiring a defence.
Risk: big companies have legal departments on hand to make your life hell for even trying.
Reward: smaller companies don’t have enough money to be worth your time to sue. Even if you’re trying to “send a message” the first attempt is so expensive for no gain, it’s not worth your while.
Government departments tend to fall into a bad middle ground. There’s enough money to be worth fighting over but they’re not always fantastically well equipped to defend it (or at least they’re perceived as such).
Because that's basically what you're saying you want.
And anyways, if the DMV agent was acting in their capacity as a DMV employee and following established procedure, the DMV would end up paying their legal costs and settlements against the employee anyways...but without getting a say in the defense against the underlying lawsuit.
I could see a strategy here being to make the case seem invalid (by some definition) as the defence, essentially playing the man and not the ball.
See: https://www.latimes.com/archives/la-xpm-1991-08-13-mn-861-st...
An example might be Good Samaritan laws. Such laws are intended to reduce bystanders' hesitation to assist in CPR, for fear of being sued or prosecuted for unintentional injury or wrongful death.
The problem here however, is the obvious and rampant abuse of QI...
I don't have good sound proposals, but bonuses for positive steps might be a good start.
Of course, this is completely different from the idea of QI, which, having worked for the federal government, I can see why it's important. Even if it has been over-applied.
Under the centuries-old principle of sovereign immunity, the government can simply choose not to be liable for anything at all. Sovereign immunity is the default for most countries now, and throughout history.
The US and the countries of the EU are relatively unique in allowing themselves to be sued for damages for their failures.
While I believe that the "bad apples" among the police force is relatively rare, the fact that the rest of the force is to some degree resisting attempts to root them out makes them complicit in the acts to some degree.
Both my parents were retired Police, and I know there's a lot of good people that work in those fields. I also know that not every community, situation or person is the same and there are a lot of people on power trips that even fellow cops don't always like. It's often hard to speak out from within a group.
Some of the more recent events are particularly grievous and should absolutely be prosecuted... There are many more incidents that should be as well. I tend to say it's rarely (though sometimes is) about race, it's usually a matter of blue vs everyone else.
It amounts to saying that if the courts haven't clearly established a right, then you effectively don't get access to it, while the constitution (and basic ethics) is pretty clear that rights not being specifically enumerated isn't supposed to be construed as denying those rights.
DMV agents are probably not very wealthy. By suing them you would simply drive an underpaid worker into bankruptcy and probably never get much money back.
Meanwhile, the DMV can easily scapegoat it's employee and never reform or make any systematic changes. Furthermore you would have no recourse to sue them directly since they can just keep hiring more poor workers to be thrown under the bus.
Ultimately the tax payers (or voters) need to keep the DMV accountable. There is no alternative. Democracy doesn't have shortcuts. The tax payers have to pay when the government screws up. More to the point - the tax payer ALWAYS ends up paying when the government screws up, without exception, 100% of the time. Either they pay by having a corrupt DMV that hurts society and everyone at large, or they pay through lawsuits and higher costs at the DMV.
That seems so very one sided reasoning when the same logic is not applied to the rest of us. When we interact with police, they get to break the law but we must perfectly follow the law or face charges. There is no equality in that arrangement.
The problem is this whole qualified immunity is a civil thing. Workplace safety negligence, theft, police violence all are criminal cases. But. After the the prosecutors (DAs) stopped charging police officers people started suing them in civil court.
The problem is not QI per se, the problem is _wtf_ is going on with cops killing anybody in non-violent cases. (And how come there's not a public inquiry when someone dies in law enforcement custody or during any interaction with police. And how come nothing has really changed over the years - except police got the old tanks from the post-9/11 war-on-terror spending spree.)
Common law is common in the English speaking world because it is derived from common law as practiced in England. However both Quebec and Louisiana were acquired from France and kept the French legal system. (OK, Quebec lost French law, and then was given it back so that they wouldn't rebel and become part of the USA.)
In Europe broadly, civil law is more common.
So if I grab someone off the street and handcuff them we can be almost 100% sure I'm committing a crime. If the police do the same thing we can be almost 100% sure they are not committing a crime.
Exceptions happen in both cases but it's not unreasonable (which isn't to say it's correct) to take make laws that take that into account.
But the flip side is also true. Just as a doctor can absolutely be arrested for intentionally harming a patient, a police officer who arrests you for clearly wrong reasons should absolutely be sued or prosecuted for their crime. But describing the line between those two cases is hard.
As a practical matter, if there is possible liability, everyone will have to have liability insurance, just as in the medical professions, for example.
Qualified immunity doesn’t rest on nearly as solid a ground.
https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...
> In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit.[7] The United States as a sovereign is immune from suit unless it unequivocally consents to being sued.[8] The United States Supreme Court in Price v. United States observed: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it."[9]
The only reason the United States can legally appear as a defendant in a civil suit currently is because Congress has consented to being sued:
> The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not the broad waivers of sovereign immunity they might appear to be, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. § 1331 confers federal question jurisdiction on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.
But in general, the government of the United states is immune from civil suits, and Congress can decide at any time -- even during an active case -- to decide to not want to be sued anymore.
The governments of the states -- being the ultimate sovereign authority of the United States of America -- are also generally immune from civil suit, except in limited circumstances. I believe most have however consented to being sued.
On this matter, the supreme court has said:
> we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention." States may consent to suit, and therefore waive their Eleventh Amendment immunity by removing a case from state court to federal court.
QI protects government employees from retaliation for decisions made as part of their job, that are necessary for them to complete their job. Police unions and sociopaths with badges and law degrees have bastardized this to try to use it to protect police officers for murdering people.
Every police department with more than a couple officers has an official structure for reporting abuse to leadership (either police leadership, or civilian leadership). State agencies and police forces absolutely have jurisdiction to investigate local departments, and the FBI and DOJ can investigate anyone they want.
I suspect the mistake in the US is that all the people who could punish the police are 'too busy' with other things. Make a dedicated team who has nothing else to do, and suddenly they'll be snooping around like journalists looking for dirt so they can make a conviction and get a promotion.
QI completely sidesteps the question "is it illegal" by replacing it with "has a suitable court ever established a precedent of suitable specificity saying that this is illegal when carried out by a government official/employee"?
Which is likely how Gauvin will walk, since despite killing person being illegal, there are no suitable court precedents ruling with sufficient specificity that a government agent killing a person is illegal.
FBI doesn't want to investigate LAPD. They need LAPD, down the line, when there's some case for which they'll need cooperation.
What's needed is a Federal policing agency tasked with investigating and prosecuting police misconduct. That's the whole remit; police misconduct is their alcohol, tobacco, and firearms.
QI applies if the government employee shows they acted reasonably in exercising discretion in performing their job. It doesn't matter whether or not there's no precedent.
Cases saying where QI applies, like the pepper spray case, exist because nobody knew beforehand if it applied to the use of pepper spray. And if you read the case, it was the policy of that police force to use pepper spray. Thus, the question boiled down to whether it was reasonable the officer to use pepper spray in that situation. The police force is the proper defendant in that case, not the individual officer.
Which is likely how Gauvin will walk, since despite killing person being illegal, there are no suitable court precedents ruling with sufficient specificity that a government agent killing a person is illegal
That's both ridiculous, wrong, and clearly FUD. Within the past year several cops have been found guilty of murder or homicide for the illegal use of force resulting in the death of someone. It's very likely that Gauvin will plead guilty to avoid a trial and secure a reduced sentence, because if he risks a trial he would be sentenced to life in prison if he's found guilty. (To walk, he'd need to convince 12 people that he isn't guilty; a hung jury would just result in a re-trial.)
Probably depends on exactly where you are, but in the US the "LL" in "LLC" is "Limited Liability". (The same concept applies for a C-corp, and Europe has equivalent constructs AFAIK.)
One of the main selling points of a corporation is limited liability. If you are acting on behalf of the company you are very explicitly not "jointly" or in any other way liable for its actions. There are very specific things you have to do wrong to become individually liable; this is called "piercing the veil":
https://www.nolo.com/legal-encyclopedia/personal-liability-p...
When a police officer arrests you, they are doing something to you that in any other situation would be a major crime and it is not done in your best interest. This significantly changes the reasoning and, especially in light of recent events, needs a significant improvement in how it is currently legally treated.
I don't see that reading. I see quite the opposite. (Court opinions are hard to read, as they often veer into double- and triple-negatives)
I see that paragraph as saying that "this case is meaningfully different -- McGarry was fighting against the officer (vs York was not menacing the officer), and McGarry was very close to the officer at the time of the throwdown.
The footnote is the judge defending himself aginst claims of over-pedantic weasily rules-lawyering. He's saying a judge could make a decision based on irrelevant differences (like kitchen vs parking lot), but following Gorusch, to be fair to plaintiffs, the judge is only considering Constitutionally relevant facts.
QI says that if the officer had no way to know the behavior was illegal, he can't be sued for it. Nothing stops legislature (or executive) from reading a ruling and passing a law (or rule, resp) to clarify.
It's the opposite of "Fuck You, Gorusch".