Consider these cases: After a woman gave police permission to enter her home, they broke through her windows and injected enough tear gas to make the home unlivable for months. Prison guards forced a man to live in a cell without a bed and covered in human feces and raw sewage. After searching a womans home for drugs and not finding any, police officers dragged her to a local hospital where, without her consent, a doctor searched her vagina and also didnt find any drugs.
Each of these people sued government officials for violating their rights. Each of their cases was dismissed not because the governmentemployeeswere innocent but because a court found them to be immune fromthe lawsuits.
If government officials violate your rights, you can sue them in court. But an obscure legal doctrine called "qualified immunity" often shields those officials from liability, even when egregious violations have occurred.The Massachusetts Legislature is considering urgent and necessary reforms to qualified immunity.
Under the doctrine of qualified immunity, government officials can only be held liable for violating rights that are clearly established. You might expect that constitutional rights like your First Amendment right to free speech or your Fourth Amendment right against unreasonable search and seizure would be clearly established, but thats not how it works. Instead, rights become clearly established only when a previously decided case involved nearly identical facts.
Heres how that plays out. Lets say a police officer orders you to put your hands up. You do so, surrendering to his authority. But the officer orders his police dog to bite you anyway. You sue. Unless, at some point in the past, a police officer also ordered a police dog to bite someone whose hands were up, and that person sued, and a court found a civil rights violation youre out of luck, case dismissed.
This sounds bad, but it gets worse. After your case is dismissed, if a police officer orders a police dog to bite another person whose hands are up, and that person sues, their lawsuit will also be dismissed. Why? Because the right is still not clearly established. After all, the judge dismissed your case without ever reaching the question of whether the police violated your rights. Because of qualified immunity, constitutional rights do not get clearly established, and the law freezes in place.
Qualified immunity lets the police off the hook for misconduct and denies their victims compensation.
One judge has aptly described the qualified immunity doctrine as, Heads defendants win, tails plaintiffs lose.
Qualified immunity lets the police off the hook for misconduct and denies their victims compensation. Police unionsclaimthat qualified immunity exists to protect police officers who play by the rules. But it does the exact opposite. Qualified immunity only protects officials who have broken the law. Police officers who obey the law dont need qualified immunity they already are immune. If a police officer doesnt violate a persons rights, that person doesnt have a legal claim against the officer. Ending or reforming qualified immunity wont cause police officers who break the law to lose their homes and savings. Like most of the country, Massachusetts indemnifies police officers: The city or state covers the cost of these lawsuits.
In recent weeks, the House and the Senate each passed police reform bills. They must now negotiate a revised bill to put on Gov. Charlie Bakers desk. The House bill would keep qualified immunity mostly intact, shielding officers unless they are decertified by a new licensing commission.The Senate bill is not as bold as, say, Colorados recent law ending qualified immunity outright, but the reforms it includes should give victims of government violence much more of a fighting chance. Under the Senate bill, qualified immunity would shield a government official from liability only when no reasonable official could have thought this conduct was legal.
Currently, qualified immunity is like a bingo card. Your case can proceed only if your rights violation matches up with a previous court cases finding of a rights violation. The Senate bill changes this dynamic by tossing out the bingo card and relying more on judges judgment. Qualified immunity will still exist. But police officers will only be immune from a lawsuit if a judge determines that reasonable people would have thought that the officers actions were legal.
Whether the reform has real teeth will depend on how judges apply the law, if passed. In Marbury v. Madison, the foundational case of American constitutional law familiar to every judge in our Commonwealth, Chief Justice John Marshall wrote that the United States could not be considered a government of laws, and not of men if the laws furnish no remedy for the violation of a vested legal right. Lets hope our judges agree.
Follow Cognoscenti on Facebook and Twitter.
Read more from the original source:
- Govt That Spies Has Insatiable Appetite - KMJ Now - February 4th, 2021
- No-knock search warrants began in Wisconsin, Rep. Myers wants to end them here - Wisconsin Examiner - February 4th, 2021
- Close the Gaps - East Bay Express - February 4th, 2021
- Is Americas Approach to Cannabis Racist? Study Shows Its Worse Than You Think - GreenState - February 4th, 2021
- Federal appeals court allows reporters to sue SWAT officer who tear-gassed them during Ferguson protests - JURIST - February 4th, 2021
- Invoking Scalia, Sotomayor Presses for Broad Fourth Amendment Protections - Reason - October 30th, 2020
- EFF Files Amicus Brief Arguing That Law Enforcement Access to Wi-Fi Derived Location Data Violates the Fourth Amendment - EFF - October 30th, 2020
- Main Points Of The Fourth Amendment To Chinese Patent Law (Approved On October 17, 2020, Effective From June 1, 2021) - Intellectual Property - China... - October 30th, 2020
- Column: Michigan can bring privacy into the 21st century - The Oakland Press - October 30th, 2020
- IMPD dismissed from Dreasjon Reed lawsuit - WTHR - October 30th, 2020
- The Criminal Justice of Amy Coney Barrett - Washington Monthly - October 30th, 2020
- A guide to the statewide constitutional amendments on the ballot in November 2020 - Yellowhammer News - October 30th, 2020
- RUTHS HOSPITALITY GROUP, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an... - October 30th, 2020
- Assembly Committee Clears Verrelli & Benson Bill Protecting Employees from Employer Tracking Device Violations - InsiderNJ - October 30th, 2020
- The tyranny of the experts - Leader & Times - October 30th, 2020
- Mike R. Galli is recognized by Continental Who's Who - PRNewswire - October 30th, 2020
- Mail Voting Litigation in 2020, Part II: Submission of Mail-In Ballots - Lawfare - October 30th, 2020
- In its 4th revision to the SEC, Palantir tries to explain what the hell is going on - TechCrunch - September 20th, 2020
- City of Pierre among South Dakota towns ordered to pay a total of $440000 because of forced catheterizations - Drgnews - September 20th, 2020
- Former Torrington officer seeks to have evidence suppressed before trial - Scottsbluff Star Herald - September 20th, 2020
- Council To Have One-Day Session To Learn About Police - The Rhino TImes - September 20th, 2020
- Things to Know Before Your Neighborhood Installs an Automated License Plate Reader - EFF - September 20th, 2020
- Attorney argues Haynes and his brother bribed witness to recant his testimony in 1999 murder case - Kankakee Daily Journal - September 20th, 2020
- Justice Ruth Bader Ginsburgs Lasting Impact on U.S. Traffic Laws - The Art of Gears - September 20th, 2020
- Editorial, August 10, 2020: Your cellphone might be "Big Brother" - Richmond.com - August 10th, 2020
- Legal Brief: Surveillance and the Fourth Amendment - SecurityInfoWatch - August 10th, 2020
- Common Ways to Fight Against a Drug Possession Charge - Student Assembly of the State University of New York - August 10th, 2020
- Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears - People For the... - August 10th, 2020
- Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? - Reason - August 10th, 2020
- The Police Lie. All the Time. Can Anything Stop Them? - Slate - August 10th, 2020
- The Court of Justice of the European Union in Schrems II: The impact of GDPR on data flows and national security - Brookings Institution - August 10th, 2020
- Calls for police reform and racial justice spur a flurry of resolutions before the ABA House - ABA Journal - August 10th, 2020
- Reporters Committee amicus brief in Alasaad v. Wolf - Reporters Committee for Freedom of the Press - August 8th, 2020
- Meet the Judge Who Thinks a Black Man Walking Around Is a Crime - Rewire.News - August 8th, 2020
- Who will police Springfields cops? - The Boston Globe - August 8th, 2020
- 'Defund the police' is not a real reform strategy - The Maine Wire - August 8th, 2020
- Assessing Indias obsession with data localisation - Deccan Herald - August 8th, 2020
- How 9/11 and the US Civil War provided the framework for federal agents in Portland - News@Northeastern - August 7th, 2020
- Senators Graham And Blumenthal Can't Even 'Earn' The EARN IT Act: Looking To Sneak Vote Through Without Debate - Techdirt - August 6th, 2020
- The Constitutional Case Against Trumps Use of the Department of Homeland Security - The New Yorker - August 6th, 2020
- 'Trump's Troops Are Breaking the Law and Creating Chaos' - FAIR - August 6th, 2020
- Portland demonstrates that government spying on citizens has become commonplace, and easy - Washington Times - August 6th, 2020
- Plainclothes NYC police grab protester and throw her into unmarked car - WSWS - August 6th, 2020
- Majority of Kingston aldermen view Kingstonian project tax pact favorably, with conditions - The Daily Freeman - August 4th, 2020
- Officers on the street without ID or insignia is dangerous - News-Press Now - August 4th, 2020
- "It's the decent thing to do" - News - Fowler Tribune - August 4th, 2020
- What would the Founding Fathers do? - Smoky Mountain News - August 4th, 2020
- How the president became the deporter in chief. - Slate - August 3rd, 2020
- Who is Zane James, why were his brother and father detained by police in Cottonwood Heights protest? - MEAWW - August 3rd, 2020
- Unpacking DHS's Troubling Explanation of the Portland Van Video - Lawfare - August 1st, 2020
- Capitol Hill grilling of tech CEOs highlights expansion of 'geofence warrants' - WRAL.com - August 1st, 2020
- R Sikoryaks latest project is a word-for-word adaptation of the U.S. Constitution - Boing Boing - August 1st, 2020
- FBI bulletin exposes another crack in ELD mandate - Land Line - Land Line Media - August 1st, 2020
- Analysis: Is Trump stretching the law to deploy federal police power in cities? - wenatcheeworld.com - July 31st, 2020
- NRA and Tea Party: Where are you now? - Greensboro News & Record - July 31st, 2020
- Fourth Amendment | United States Constitution | Britannica - July 30th, 2020
- Fourth Amendment - the Text, Origins, and Meaning - July 30th, 2020
- "It's the decent thing to do" - News - Pueblo Chieftain - July 30th, 2020
- Trump Judge Casts the Deciding Vote to Reverse District Court Ruling to Suppress Evidence Obtained in Violation of the Fourth Amendment: Confirmed... - July 29th, 2020
- Trump Judge Casts the Deciding Vote to Give Qualified Immunity to Officers Who Violated Fourth Amendment: Confirmed Judges, Confirmed Fears - People... - July 29th, 2020
- How does the Fourth Amendment apply to my child while at school? - Lawyers.com Blog - July 29th, 2020
- Ga. voters will decide thorny 'sovereign immunity' issue this fall - Georgia Recorder - July 29th, 2020
- Shot Twice in the Back: A Case Tests the Fleeing Felon Defense - The New York Times - July 29th, 2020
- Wronged by the Police? How to Defend Your Rights - Legal Reader - July 29th, 2020
- The innocents at home, anti-mask tales of purity - Greensburg Daily News - July 29th, 2020
- Someone who cared about safe cities would try to bring calm to chaos. Trump is doing the opposite to bolster his law-and-order reelection campaign. -... - July 29th, 2020
- Here's Why Cities Won't Be Able to Stop Trump's Secret Police - VICE - July 29th, 2020
- Radio Diary: A Harvard Law Professor Explains Why Federal Officers' Tactics In Portland Are Unlawful - WBUR - July 26th, 2020
- Two DHS Officials Apparently Just Admitted Their Troops Have Been Violating the Constitution - Law & Crime - July 26th, 2020
- John Krull: The innocents at home, anti-mask tales of purity - Terre Haute Tribune Star - July 26th, 2020
- Protester in Portland sues Trump for 'conspiracy to violate the U.S. Constitution' after alleged attack by feds - Pamplin Media Group - July 26th, 2020
- The Federal Coup to Overthrow the States and Nix the 10th Amendment Is Underway - River Cities Reader - July 26th, 2020
- LETTERS TO THE - Central Wisconsin News - Tribune Phonograph - July 26th, 2020
- The Majority of Americans Oppose Qualified Immunity. Where Is Congress? - Reason - July 26th, 2020
- Oregon sues US agencies over protest arrests; what gave feds authority to intervene? - ABA Journal - July 26th, 2020
- Can use of force restrictions change police behavior? Heres what we know - PBS NewsHour - July 26th, 2020
- Judge refuses to dismiss claims Balch Springs police violated rights of murdered teen Jordan Edwards - The Dallas Morning News - July 25th, 2020
- East Bay Homeless Living On Caltrans Property May Be Entitled To Cash - KALW - July 25th, 2020
- As journalism jobs decrease, the future of the discipline might depend on general education - Poynter - July 25th, 2020
- Trenton cop found a flask inside a councilwoman's car after crash, tried covering it up - The Trentonian - July 25th, 2020