Posted on 03/21/2018 7:18:41 AM PDT by reaganaut1
In my previous article, I discussed the Supreme Court’s near abandonment of an actual, necessary part of the Constitution, namely the Contract Clause. Contrariwise, a case that the Court should hear involves a harmful legal doctrine that it simply made up, namely “qualified immunity.”
Here’s the background. After the Civil War, most members of Congress were concerned that if the states had a free hand, they and their officials would often violate the civil rights of freed slaves and other unpopular groups. So Congress passed and President Grant signed the Civil Rights Act of 1871, which included this provision language (now known as 42 U.S. Code Section 1983): “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, of the District of Columbia, subjects or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit, or equity, or other proper proceeding for redress.”
Thus, individuals whose rights were violated by police or other officials could sue them in federal court. It was supposed to deter bad actors who violate the rights of people in the course of their duties. The law says nothing whatsoever about those officials having any defenses against those suits.
Nevertheless, the Supreme Court invented a defense known as “qualified immunity.”
Jay Schweikert, a Policy Analyst with Cato Institute’s Project on Criminal Justice, explains here, “This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit legal misconduct unless they violated ‘clearly established law.’
(Excerpt) Read more at forbes.com ...
Well on the surface the act does seem to violate the sovereign immunity doctrine. SCOTUS was evidently trying to split the difference.
This is why cops can get away with murder and frequently do.
According to the article, the doctrine of qualified immunity expanded in the 1960s. Remember that this was a time when new “constitutional rights” were popping up everywhere. Should local officials been held civilly liable for not informing Mr. Miranda of his Miranda rights before the Supreme Court announced that there was such a thing? Should Mr. Gideon have been awarded damages against the local prosecutor or judge because he was not appointed a lawyer free of charge before the Supreme Court determined that there was such a right?
I am generally in accord with this article and am not a big fan of qualified immunity, but there needs to be some recognition of the possibility of people being financially ruined for violating rights before those rights were created or recognized.
The law permitting suits against state authorities for violating your civil rights, has been ruled by judges in the Fourth Circuit (Virginia, North Carolina, etc.) to apply ONLY to descendants of former slaves.
This was the rubric by which federal Judge James Beaty threw out most of the suits by the Duke Lacrosse players against state employee Nifong.
When congress debated passing the law, the comments show they intended it to apply to everyone, even citizens from New England (specifically mentioned).
But for now, we have a two-tier legal system in some parts of the country.
I have been an advocate on this forum for years for the elimination of qualified immunity, by statute.
And by nullification as a jury member. Don’t recognize the defense.
There are many who disagree. They believe the police should be protected unless they intend to violate the law.
"The United States shall guarantee to every state in this union a republican form of government ...
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