If it wasn’t for bad faith, they wouldn’t have no faith at all
Let’s talk about “qualified immunity” (via the National Council of State Legislators):
The doctrine of qualified immunity protects state and local officials, including law enforcement officers, from individual liability unless the official violated a clearly established constitutional right.
The evolution of qualified immunity began in 1871 when Congress adopted 42 U.S.C. § 1983, which makes government employees and officials personally liable for money damages if they violate a person’s federal constitutional rights. State and local police officers may be sued under § 1983. Until the 1960s, few § 1983 lawsuits were successfully brought. In 1967, the Supreme Court recognized qualified immunity as a defense to § 1983 claims. In 1982, the Supreme Court adopted the current test for the doctrine. Qualified immunity is generally available if the law a government official violated isn’t “clearly established.”
If qualified immunity applies, money damages aren’t available even if a constitutional violation has occurred. If qualified immunity doesn’t apply, while the government employee or official technically is responsible for money damages, the government entity virtually always pays. So qualified immunity protects states and local governments from having to pay money damages for actions not yet deemed unconstitutional by a court.
The qualified immunity doctrine is very favorable to states and local governments. “Clearly established” means that, at the time of the official’s conduct, the law was sufficiently clear that every reasonable official would understand that what he or she is doing is unconstitutional. According to the Supreme Court, qualified immunity protects all except the plainly incompetent or those who knowingly violate the law.
The Supreme Court has offered multiple justifications for qualified immunity, including that it encourages government officials to “unflinching[ly] discharge . . . their duties” without worrying about being sued for actions a court has not yet held violate the constitution.
Note how much “clearly established constitutional right,” “reasonable official,” and “except plainly incompetent or those who knowingly violate the law” rely on good-faith behavior. “Qualified immunity” breaks down when we have people who do not respect the rule of law both on the enforcement and on the interpreting side of American justice.
We now routinely see lawless DHS/ICE thugs assaulting citizen observers and accusing observers of the assaults. The agents’ purpose is to arrest critics, threaten them with felony assault, and perhaps charge them with assaults that the federal agents committed. This is to minimize citizen oversight of agents’ civil rights violations, initimidate critics, and in the case of Renee Good, even kill them. All protected by qualified immunity.
It is a rule designed to protect government officials operating in good faith and playing by and respecting the rule of law. That horse left the barn some years ago.
A couple of examples from this week.
Democrats have introduced a string of bills to limit or remove qualified immunity in the wake of behaviors on display in Donald Trump’s and Stephen Miller’s ethnic cleansing operation. As I wrote two weeks ago, none of these bills have a prayer this term. They are mainly for P.R. But I’d be inclined to present the stack to any DHS agent threatening me and ask him if he knows what the statute of limitations on civil rights lawsuits is in this state. Those bills might come back to bite him and his family in the future. It’s a bluff, of course, but I’d expect few of these idiots to know that.