The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.
Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.
But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.
The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.
Government officials, especially those with the power that Law Enforcement officers have, should be held to a higher standard, not a lower one.
Most high school papers wouldn't touch sources like these. But in November 2016, both the president-elect of the United States and the Washington Post are equally at ease with this sort of sourcing.
Even worse, the Post apparently never contacted any of the outlets on the "list" before they ran their story. Yves Smith at Naked Capitalism says she was never contacted. Chris Hedges of Truthdig, who was part of a group that won the Pulitzer Prize for The New York Times once upon a time, said the same. "We were named," he tells me. "I was not contacted."
Hedges says the Post piece was an "updated form of Red-Baiting."
"This attack signals an open war on the independent press," he says. "Those who do not spew the official line will be increasingly demonized in corporate echo chambers such as the Post or CNN as useful idiots or fifth columnists."
“Trigger Warning: The event conducted just beyond this sign may contain triggering and/or sensitive material. Sexual violence, sexual assault, and abuse are some topics mentioned within this event. If you feel triggered, please know there are resources to help you.”
Should people triggered by anything, which the candidates may mention, even vote?
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The only perfect science is hind-sight.