Clarence Thomas and Elizabeth Warren agree “qualified immunity” must be fixed

Conservative Supreme Court Justice Clarence Thomas and liberal Senators Edward Markey, Bernie Sanders and Elizabeth Warren all agree: “qualified immunity” protection from civil suits needs revision.

The Senators’ bill – S.492 -“eliminates the defense of qualified immunity in civil actions for deprivation of rights.”

Qualified immunity is a judicially created doctrine that protects government employees or those acting with state authority from being held personally liable for constitutional violations.

Justice Thomas

Justice Thomas agrees in part, noting that the blanket use of qualified immunity for officials of all types doesn’t make any sense, and wants courts to “reconsider either our one-size-fits-all test or the judicial doctrine of qualified immunity more generally.”

In a dissent to the Supreme  Court’s decision to allow qualified immunity to college officials who violated a student’s First Amendment rights, Thomas contended “our qualified immunity jurisprudence stands on shaky ground.”

But why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?

We have never offered a satisfactory explanation to this question, Thomas added.

While Thomas believes that qualified immunity should not be granted to everyone, the Senators want to gut the exception, contending:

The bill provides that under the statute allowing a civil action alleging deprivation of rights under color of law, it shall not be a defense or immunity to any such action that

(1) the defendant was acting in good faith or believed that his or her conduct was lawful at the time it was committed
(2) the rights, privileges, or immunities secured by the Constitution or federal laws were not clearly established at the time of their deprivation, or
(3) the state of the law was such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

The bill is aimed at law enforcement, because nearly all civil cases against government officials can be defended as an error from poor communication, missing documents, innocent misinterpretation of circumstances, or just “having a bad hair day.”

None of those excuses work for the police and other law enforcers.

Under the senators’ bill, arresting someone “unjustly” could mean you are personally sued. Saying nasty things to a murder suspect might bring litigation for committing a “hate crime.” Stopping someone not an albino could be termed harassment and you might be sued into bankruptcy.

If Markey, Warren and Sanders succeed, arrests will be rare, prosecution an unusual event, and police departments will be empty, except for those close to pension or adherents to masochism.

Thomas, by contrast, makes a good point. Why should a petty school bureaucrat be allowed to continuously and knowingly deny Constitutional rights, and not have that arrogance penalized in civil court?

That abuse of qualified immunity is not just a police or school official issue, it also extends to judges and prosecutors who deny rights, such as fostering imprisonment of suspects for many months to await trial and they then win acquittal. Isn’t freedom itself the most basic tenet of the Constitution?

Meanwhile, the prospect of ending “qualified immunity” has many lawyers damp with enthusiasm. This will be another goldmine in frivolous legal action, 30% shares of the settlements, more court clogging and more hourly billing.

Thomas, Markey and Warren are lawyers, along with about 40% of the Congress.

Sharks swimming in Congress and China


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