When I think of frivolous lawsuits the one that instantly comes to mind is the person who orders a cup of coffee from McDonalds, proceeds to spills it on themselves and then sues McDonalds because the coffee was too hot. Who, in a normal frame of mind, doesn’t get the concept that hot coffee is, well – hot and can burn you? I would also like to know the name of the person that didn’t know you take pills by mouth or who doesn’t get the concept that ice is slippery or that putting a hamster where the sun don’t shine could be detrimental to your health, not to mention highly embarrassing when they had to go to the emergency room to have it removed!
But what really pisses me off is the fact that most government officials and law enforcement agencies, whether local, state or federal, who probably should be sued, can get away with gross violations of our rights by claiming immunity.
In the 1871 Civil Rights Act, Congress gave Americans the right to sue public officials who violate their legal rights whether by police brutality, unlawful search and seizure or unlawful arrest. However, in 1967, SCOTUS gutted the Act by creating, out of thin air, a concept they called “qualified immunity” which they described as a “modest exception for public officials who had acted in good faith and who believed their conduct was authorized by law.”
Fifteen years later in Harlow v. Fitzgerald SCOTUS decided that acting in good faith was no longer a requirement for immunity. Instead they lay upon the victim the burden of proving that their right was “clearly established” by previously decided cases that involved the same “specific context” and “particular conduct.” In essence, the Court said that no matter how maliciously the person’s rights were violated, the victim could only sue if a previous decision of the exact same circumstances found the official guilty of violating a constitutional right.
Qualified immunity shields law enforcement, in particular, from innumerable constitutional violations and outlandish police actions every year. It also shields government officials from being sued for discretionary actions performed within their official capacity.
While judges, prosecutors, legislators, etc. may not qualify for this type of immunity most are protected by other forms of this doctrine such as absolute immunity, which shields officials from suits without regard to motive. Both qualified and absolute immunity destroys the victim’s right to seek redress. Qualified immunity means that officers who do commit brutality, along with the government officials who hire them, have little incentive to improve their practices or follow the law.
Government and police officials should not be above the law, especially since the peasants, whether they’re doctors, lawyers, or construction workers, are expected to follow the law – or else. If the peasants violate someone’s legal rights, they can be sued and required to pay for the injuries they caused.
No one argues that public officials should not be protected from the nuisance lawsuits. For that matter, so such the peasants. But qualified immunity is not the way to do it.
Qualified immunity means that victims of brutality or harassment by law enforcement or government employees generally get no relief in the courts and have no ability to hold offending officers or officials accountable for their actions. That means the officers and government employees who commit the violations have little incentive to improve their practices or follow the law.
Qualified immunity freezes constitutional law, giving courts a shortcut to resolve cases. Instead of reviewing, analyzing, and applying constitutional doctrine to determine whether a person’s rights were violated, a court can instead simply say that there has been no sufficiently similar case in the past. The result is that fewer courts ever resolve constitutional issues, and constitutional rights are hardly ever “clearly established.”
This has led to some really outrageous results. As an example, in March 2019, the US Court of Appeals for the Ninth Circuit held that officers were immune from liability for the “deliberate” stealing of property simply because there was no “clearly established’ case law governing the circumstances.
Every year, courts across the country grant government officials qualified immunity in decisions that describe tragic facts and outrageous behavior; cases that involve police searches of homes without probable cause, property stolen and never returned, fabricated evidence, and excessive force during an arrest.
Considering that some people sue without any real justification, I can see the need for granting immunity but it should not be so broad as to allow government officials or police agencies who clearly violate Constitutional protections to get away with it.
Although the Supreme Court itself has yet to retract the doctrine of qualified immunity, its foundation is starting to crack. As one federal judge has recognized, there is a “growing, cross-ideological chorus of jurists and scholars” questioning its use. In addition to Justice Thomas, in recent years Justice Sonia Sotomayor has criticized the Supreme Court’s qualified immunity case law, describing it as “sanctioning a ‘shoot first, think later’ approach to policing” that hollows constitutional protection.
Source: Qualified Immunity: Explained, The Appeal