Comment on We'll have plenty of camps to have them sent to by then.

ryannathans@aussie.zone ⁨3⁩ ⁨days⁩ ago

• octopus_ink@slrpnk.net ⁨2⁩ ⁨days⁩ ago

  Qualified immunity specifically does not apply in cases where someone’s clearly established civil rights were violated, though the criteria for that is specific. Further, it applies only to civil cases, not criminal cases. It may certainly help them in some instances, but it’s not going to be a blanket shield.

  1 Was a constitutional right violated?

  2 Was the right clearly established at the time of the alleged violation?

  www.justia.com/…/qualified-immunity/

  Under this doctrine, government agents—including but not limited to police officers—can never be sued for violating someone’s civil rights, unless they violated “clearly established law.” While this is an amorphous, malleable standard, it generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with functionally identical facts.

  In other words, it is entirely possible—and quite common—for courts to hold that government agents did violate someone’s rights, but that the victim has no legal remedy, simply because that precise sort of misconduct had not occurred in past cases.

  www.americanbar.org/groups/…/qualified-immunity/

  While yes, IANAL, I’m exceptionally doubtful that clearly established constitutional rights aren’t being violated by the behaviors of ICE under Trump, in many, many circumstances.

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  • ryannathans@aussie.zone ⁨2⁩ ⁨days⁩ ago

    Oooo that’s cool

    IANAA (I am not an American)

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  • lmmarsano@lemmynsfw.com ⁨2⁩ ⁨days⁩ ago

    I’m exceptionally doubtful that clearly established constitutional rights aren’t being violated

    Anyone who’s hasn’t lived under a rock the past decade knows clearly established means practical impunity.

    Reported in Politico

    Some courts have required an extraordinarily precise match between the misconduct alleged in one case and in a prior one in order to find a violation of someone’s constitutional rights.

    […]

    When Baxter sued, the 6th Circuit Court of Appeals tossed out his case. It held that while it was well established that a police dog couldn’t be unleashed on a suspect who was lying down, there was no case addressing someone sitting down with their hands up, as Baxter said he was doing.

    From Reason

    “I have previously expressed my doubts about our qualified immunity jurisprudence,” writes Thomas. “Because our §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.”

    The judge spoke to a point that qualified immunity critics have been making for some time: The framework was concocted by the Supreme Court in spite of court precedent. It’s a perfect example of legislating from the bench—something conservatives typically oppose.

    The Civil Rights Act of 1871, otherwise known as Section 1983 of the U.S. Code, explicitly grants you the ability to sue public officials who trample on your constitutional rights. The high court tinkered with that idea in Pierson v. Ray (1967), carving out an exemption for officials who violated your rights in “good faith.” Thus, qualified immunity was born.

    That doctrine ballooned to something much larger in Harlow v. Fitzgerald (1982), when the Supreme Court scrubbed the “good faith” exception in favor of the “clearly established” standard, a rule that has become almost impossible to satisfy. Now, public officials cannot be held liable for bad behavior if a near-identical situation has not been outlined and condemned in previous case law.

    Though the original idea was to protect public servants from vacuous lawsuits, the practical effects have been alarming. As I wrote last week:

    In Howse v. Hodous (2020), the U.S. Court of Appeals for the 6th Circuit gave qualified immunity to two officers who allegedly assaulted and arrested a man on bogus charges for the crime of standing outside of his own house. There was also the sheriff’s deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at a non-threatening dog; the cop in Los Angeles who shot a 15-year-old boy on his way to school because the child’s friend had a plastic gun; and two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant.

    In other words, cops need the judiciary to tell them explicitly that stealing is wrong. The aforementioned police officers were thus shielded from legal accountability, leaving the plaintiffs with no recourse to seek damages for medical bills or stolen assets.

    Court standards are so strict, nearly any meaningless, incidental difference suffices to grant officials cover of qualified immunity: literally the difference between lying down & sitting is all it takes to violate rights with impunity.

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    • octopus_ink@slrpnk.net ⁨2⁩ ⁨days⁩ ago

      I’m not a defender of the concept of Qualified Immunity, my point is that it’s not an absolute shield. Even if it successfully shielded them from 100% of civil rights cases (which it objectively has not) it provides no protection from criminal charges.

      I won’t argue against the idea that it covers them far more than can be rationally defended, I’m just saying it’s not an absolute shield, and (in my opinion) there is every reason to imagine that the specific group we are discussing here will routinely violate the rights of the people they detain in such an egregious fashion as to satisfy even that narrow range of criteria in a higher than you might expect number of civil cases once this is all said and done.

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      • lmmarsano@lemmynsfw.com ⁨2⁩ ⁨days⁩ ago

        Even if it successfully shielded them from 100% of civil rights cases (which it objectively has not)

        Objectively, the planets sometimes align, too: the odds are highly against it.

        it provides no protection from criminal charges

        Also exceedingly rare: we’ve only seen any decent prosecution recently. It’s likely to fail.

        While that fight should continue, society has more mundane tools to ostracize & make people’s lives hell.

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