In Parts I and Part II the concept of qualified immunity was discussed, as was the origin of the doctrine. Also noted was the fact that those who wished to remove this “good faith” protection for police officers in the legislative and judicial branches of government were making no efforts to eliminate the immunity that they enjoyed. In Part III, examples of “good faith” violations were explored, and the implications for removal of the protection were discussed, which were further explored in Part IV.
In Part V there will be an attempt to summarize (for now, at least) this discussion. Clearly, opportunities exist for anyone whose clearly-established civil rights have been violated by a law enforcement officer to seek civil redress in court. What is more challenging is when it is expected that law enforcement officers will need to successfully divine what rights may come to exist in the future. As recently as 2004 and 2008, when given opportunities to express their thoughts directly in referenda, voters in many states voted against supporting the right to marry a consenting adult of the same sex. Any government official acting in support of the laws created or affirmed could retroactively be held civilly liable for the acts that were lawful until the moment Justice Anthony Kennedy decided to create that civil right in the Obergefell case.
In its attempt to statutorily eliminate the doctrine of qualified immunity for law enforcement officers only, while leaving its own immunity intact, the democrats in Congress have shown once again their hypocrisy with respect to the standards of fairness and equity that they claim to wish to promote. The current legislation would not address the naked partisanship in granting tax exempt status led by Lois Lerner and carried out by her underlings during her time at the Internal Revenue Service. The current legislation leaves intact the immunity enjoyed by Emmet Sullivan as he continued to subject Lt. General Michael Flynn USA (retired) to the prolonged ordeal of Department of Justice (DOJ) prosecution even after the DOJ has admitted it was not in the interest of justice to do so. Arguably, the qualified immunity enjoyed by Kevin Clinesmith in his professional duties as an attorney for the Federal Bureau of Investigation (FBI) is not impacted by this legislation, as even though he worked for an agency that has a law enforcement role, he was not a special agent and therefore is not a law enforcement officer. (This is not to say that Carter Page does not have a cause of action against Clinesmith personally as well as the FBI, but rather is used to point out whose position does not otherwise lose qualified immunity as the legislation is currently written).
During the lead up to the American Revolution, it was the representatives of the king in the colonies enforcing the laws who often bore the brunt of dissatisfaction with the acts of King George and a far-away Parliament. As Parliament did then, though, Congress has also decided again to exempt itself from dealing with any angry mobs, not only by surrounding their workplace with troops and barbed wire, but in continuing to exempt itself from suit with immunity it denies those who might be protecting them in a law enforcement role, even as it tries to ship hot tar and feathers to their own selected mobs.
All government officials need to be held accountable. Despite this, certain statutory, common law or precedential doctrines have been created or evolved in order to allow those who have been elected or appointed to serve in their roles without having to appear in court to successfully defend each action they take where it is not clear that their actions violate clearly established civil rights.
As noted earlier, the qualified immunity doctrine is the most narrowly drawn form of governmental immunity, and it serves to limit the access to the federal courthouse and the civil rights lawsuit to those that can pass the barrier.
Many members of Congress have shown that they were greatly traumatized by the events of January 6, 2021, when people with political grievances real and imagined came upon the US Capitol in order to seek redress. While it appears some were invited inside, there were many who breached the edifice through non-traditional entrances. At least one protester who trespassed through a freshly broken window was shot dead by what has been described as a law enforcement officer or agent of the Capitol Police*. In a sense, while Congress does not support any unauthorized entrance into its own workplace and has spent millions of taxpayer dollars in the months since that time trying to prevent any reoccurrence, metaphorically they support knocking down the screening barriers at the federal courthouse to allow mobs there to litigate against the police, regardless of whether a real civil rights claim exists.
Anyone who examines the dockets, opinions and orders at any federal district court immediately gets a sense of the volume of litigation against law enforcement already filed by the aggrieved incarcerated inmate with lots of time on his or her hands. Should Congress succeed and law enforcement officers no longer have access to qualified immunity, this volume should be expected to dramatically increase in a manner that resembles the increase in illegal alien crossings of the US southern border that started January 21, 2021.
At that point, don’t be surprised if the police don’t have time to respond to a burglary, robbery or other criminal complaint, as all officers will be busy giving depositions about the other complaints they responded to in the previous years, and no others will be able to respond until they can first consult their attorneys.
*Just as the Congress enjoys immunity for its own actions that it wishes to remove from members of another branch of government, it has exempted itself and its own police force, the US Capitol Police, from the Freedom of Information Act and other statutes that would allow the shooter in this action to be identified and have his actions scrutinized, to determine if a civil rights action against him is appropriate.
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