SCOTUS OT 2022 - Qualified Immunity Edition


“Ho asserts that qualified immunity is an imperative to protecting the public; without it, he implies, violence will proliferate, because officers will be too afraid to use lethal force. In reality, the contrary is true. Time and time again, civil servants—namely police officers—have used qualified immunity to avoid accountability for their outrageous, and oftentimes violent, actions.”
I want to make a point about Judge Ho (5th Circuit Court of Appeals, based in Houston). Ho has an impressive resume. He's clerked for Justice Thomas on the Supreme Court, he was Texas Solicitor General, and he's a Federalist Society contributor. On paper the guy is an ideal judicial nominee and is on our side with respect to the Second Amendment (dissented in the en banc motion to reconsider Mance). But he, like so many other 'conservative' judges are far too differential to police and governmental power.

For all you Ginsburg and Sotomayor haters out there, I'll say this: You need to have a 'liberal' component on the court to keep the likes of Thomas and Alito in check. These guys will let us keep our guns, but they'll also green-light every bullshit traffic stop and illegal search the police want to conduct. None of the current Supreme Court justices have a strong holistic 'liberty' records. At some point or another, each of them has proven to be just fine with having the government trample our rights. I'm optimistic about Gorsuch though.
 
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Correct.

Conservative judge: Legislators passing laws banning and restricting gun and gun possession, that's unconstitutional. Police searches and seizing property (including guns) for any reason, that's legit!

Liberal judge: Legislators passing laws banning and restricting guns and gun possession, that's legit. Police searches and seizing property for any reason, unconstitutional unless that reason includes probable cause and a warrant!

Neither side supports both the 2nd and 4th Amendment. And in order for the 2nd to have any real meaning, you need the 4th.
 
Necessary reading from the Cato Institute: As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight

A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench.
 
Its unintended consequences. I know several people who want term limits for Congress. (Something the Founders didn't even consider - think on that one.). But the unitended consequences include a Congress that is never held accountable long term.
The problem with not having term limits is that residents of a state have a choice - vote in an incumbent who has amassed some power (the Chappaquidick Kid, for example) vs. a freshman congressperson or senator with very junior level committee assignments and little to no clout. Only term limits even the field so people don't feel it is necessary to re-elect the incumbent to preserve their state's interest.

Of course, those subject to term limits change their mind - just look at Meehan's 180 on the issue.
 
Several of those cases prove the shear absurdity of the entire doctrine. I mean ignoring the fact it's just something completely made up with no basis in anything, it was suppose to be used to prevent state agents acting in good faith but may have made a mistake from being liable for said mistake. Instead, it is used to prevent any and all accountability from state agents clearly acting in bad faith, on the basis that specific action hasn't been previously ruled on. And by specific I mean identical. Like if a court ruled a cop can't swat a camera out of someones hands but hasn't ruled they cannot roundhouse kick it, then good to go. This is not hyperbole.

Take this case mention:

"Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.”

No clearly established law that a cop cannot tamper with your security camera and blast lights and sirens at you for hours, so qualified immunity it is!

It's one of the biggest perversions of justice that exists in US legal doctrine today.
 
Update to story posted by Knuckle Dragger (Post 36) -- SCOTUS has distributed 8 "qualified immunity" cases for May 15th conference.

Update- Cato Institute
The count is up to 13 now for conference in two week. I was going to post '11' after listening to the Cato podcast, but the hits keep coming. Thomas (doesn't care about precedent) is probably a lock for this as are Ginsberg and Sotomayor. Alito, Roberts and possibly Kagan are likley to support upholding the practice.

One of the problems with QI (besides the fact that it's bullshit) is that courts are skipping the first step. Normally QI decisions have a two step approach. First the court determines whether or not the government actor's conduct violated someone's rights. Then they determine if the conduct in question was clearly established as a right violation at the time. It's like a one-time get out of jail free card. 'Ok, your rights were violated, but it wasn't clearly established at THAT TIME (but is now), qualified immunity.' The idea being that next time there won't be QI.

However courts are just going to the second part. They don't say whether the government's actions violated someones's right, only that it's not clearly established. That basically leave government actors free to do it again.

My wife and I have a game we play at Friday happy hour now. It's called 'QI or no QI'. I read from the Institute for Justice's Short Circuit newsletter and she trys to guess whether or not the court applies QI.
 
My wife and I have a game we play at Friday happy hour now. It's called 'QI or no QI'. I read from the Institute for Justice's Short Circuit newsletter and she trys to guess whether or not the court applies QI.
It's good you're at the bar when you play that, because it could drive a teetotaler to drink.
 
The IJ's weekly podcast covered the QI petition petitions pending before SCOTUS. T hey talk about the petitions as well as the perverse way we went from a strict liability standard to qualified immunity when public officials violate the constitution. It's 45 minutes well spent:

Episode 134: Will the Supreme Court finally do something about qualified immunity?

We might know how the court will tackle this issue on Monday....
 
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If someone, anyone, did what has been admitted to in the OP to one of my kids?....

Qualified Immunity, armed guards, moving out of state, out of the country wouldn’t give them any protection.
Danforth anchor, heavy chain anchor rhode and some heavy rope along with a trip to the bottom of a bayou for gator bait. That's how you deal with such scum!
 
The problem with not having term limits is that residents of a state have a choice - vote in an incumbent who has amassed some power (the Chappaquidick Kid, for example) vs. a freshman congressperson or senator with very junior level committee assignments and little to no clout. Only term limits even the field so people don't feel it is necessary to re-elect the incumbent to preserve their state's interest.

Of course, those subject to term limits change their mind - just look at Meehan's 180 on the issue.


I don't disagree. But if I've only got 12 years to make my mark, what the flip do I care if the country goes to hell in a handbasket in 16??? I'm out for what I can do in my 12 years. I'll NEVER look long term. And the next guy will just spend his time and your money on dismantling what I created.

(Now, granted, not a single one of those dolts - well maybe a select few - ever looks past the next election cycle and/or what is best for the country. )

But there is a real risk to term-limiting Congress. I'm not saying it'll be worse. It'll be different. It definitely won't be BETTER.
 
The problem with not having term limits is that residents of a state have a choice - vote in an incumbent who has amassed some power (the Chappaquidick Kid, for example) vs. a freshman congressperson or senator with very junior level committee assignments and little to no clout. Only term limits even the field so people don't feel it is necessary to re-elect the incumbent to preserve their state's interest.

Of course, those subject to term limits change their mind - just look at Meehan's 180 on the issue.
I seriously doubt more than .1% of voters are sophisticated enough to have any understanding of committee assignments or seniority.

Swing voters vote incumbent if their personal lives are going well and the incumbent hasn't caught their attention in a negative way. Which is basically as it should be. Term limits incentivize showboating, as Dennis describes.
 
I bet 99% of voters have no idea there even are committees. Term limits should have been part of the constitution and there should have been a clause that groups total time in state and fed government and caps that too so you can't spend your life earning money from the state.
 
Government officials need to be held to higher standards. People with badges or certificates need to start losing their jobs, their pensions and going to jail for doing stupid and illegal stuff. If all of sudden THEY knew they were going to be held responsible for their actions the crap like the cop killing the guy by the knee on the neck, strip searching and sticking their fingers into toddlers on hunches, and shooting people while executing no knock raids on the wrong address in the middle of the night may happen less often.
 
Correct.

Conservative judge: Legislators passing laws banning and restricting gun and gun possession, that's unconstitutional. Police searches and seizing property (including guns) for any reason, that's legit!

Liberal judge: Legislators passing laws banning and restricting guns and gun possession, that's legit. Police searches and seizing property for any reason, unconstitutional unless that reason includes probable cause and a warrant!

Neither side supports both the 2nd and 4th Amendment. And in order for the 2nd to have any real meaning, you need the 4th.

You also need the fortitude to shoot back when being unlawfully assaulted by government storm troopers.
 
Looks like the relists will continue for these....

I'm really, really surprised that nowhere in the news, Twitter, or anywhere else, is anyone making the connection between these QI petition and the focus on police misconduct following the death of George Floyd.
Ditto. QI is nowhere on the news at all, and it should be the main topic. I get that the newsies have to tailor their content to a 6th grade education and attention span of a nervous flea, but making the connection between QI and police abusing power isn't rocket surgery. I suppose it takes some amount of critical thinking and a 3 digit I.Q. to extrapolate out a few years to what the world would look like without QI, and they must think that's too much to ask of the average American.
 
I've seen many people and actual protesters talk about qualified immunity. You won't see it on the news for the same reason the news reports what's happening as peaceful protest and blames right wing white supremacists on the riots.
 
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