End Qualified Immunity

Mar 2018
485
191
Rosebud
#1
Quite right.


I’m going to start with a story that will break your heart. In the early morning hours of July 15, 2012, a young man named Andrew Scott was up late, home with his girlfriend. They were playing video games when they heard a loud pounding on the door. Alarmed, Scott grabbed a pistol and opened the door. He saw a man crouching outside in the darkness. Scott retreated, gun still at his side, pointing down to the ground.

Almost instantly, the crouching figure fired his own weapon. The encounter was over in two seconds. Scott lay on the ground, dead. The man who fired? He was a police officer. He was at the wrong house. Andrew Scott was a completely innocent man who had done nothing more than exercise his constitutional right to keep and bear arms in defense of his own home.

As for the officer? Well, not only was he at the wrong house, but he had no search warrant even for the correct house, he had not turned on his emergency lights, and he did not identify himself as police when he pounded on the door.

The officer was never prosecuted. The state ruled that the shooting was “justified” — in part because it said the police had no obligation to identify themselves. Then, when Scott’s estate sued the officer for money damages, the court threw out the lawsuit. A panel from the Eleventh Circuit Court of Appeals affirmed the dismissal. Then last year the entire court rejected en banc review.

A police officer killed a completely innocent man because of the officer’s inexcusable mistake. He escaped criminal prosecution. And then he even escaped civil liability — because of a little-known, judge-made legal doctrine called qualified immunity

Sadly, this was but one injustice caused by this misguided doctrine. It will not be the last. But there’s a solution. Judges created qualified immunity, and they can end it. It’s past time to impose true accountability on public servants who violate citizens’ constitutional rights.

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In a recent concurrence, newly confirmed Fifth Circuit judge Don Willett launched a blistering attack on qualified immunity:


To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question “beyond debate” to “every” reasonable officer. Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.​

I’d encourage you to read the entire concurrence (it’s not long). And then I’d also encourage you to read an extraordinary amicus brief filed by one of the most ideologically diverse groups ever arrayed on the same side at the Supreme Court. When the Alliance Defending Freedom, the American Civil Liberties Union Foundation, the Second Amendment Foundation, the Reason Foundation, the National Police Accountability Project, and Public Justice (among others) join hands, we’re approaching the “dogs and cats, living together” phase of the judicial apocalypse.

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Qualified Immunity: Congress's First Step & SCOTUS Follow Through | National Review
 

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