Privacy advocates argue time for cops' 'qualified immunity' has passed

(Photo by Joe Kovacs)

One of America’s leading privacy organizations, the Electronic Frontier Foundation, is arguing that the time for qualified immunity for government officials, including police, has come – and gone.

“A growing chorus of diverse stakeholders, ranging from the Cato Institute and the Institute of Justice to the ACLU, is demanding legislation to repeal this destructive legal doctrine,” the organization is reporting.

“A recent ‘cross-ideological’ amicus brief brought together the NAACP and the Alliance Defending Freedom,” the group said.

And Congress is “beginning to heed the call,” with one legislative plan already in place and more proposed.

The issue is the doctrine essentially gives government officials a pass on liability for their misbehavior because of technicalities.

“Our digital rights are only as strong as our power to enforce them. But when we sue government officials for violating our digital rights, they often get away with it because of a dangerous legal doctrine called ‘qualified immunity,'” the EFF reported.

“Do you think you have a First Amendment right to use your cell phone to record on-duty police officers, or to use your social media account to criticize politicians? Do you think you have a Fourth Amendment right to privacy in the content of your personal emails? Courts often protect these rights. But some judges invoke qualified immunity to avoid affirmatively recognizing them, or if they do recognize them, to avoid holding government officials accountable for violating them,” the EFF said.

“Because of these evasions of judicial responsibility to enforce the Constitution, some government officials continue to invade our digital rights. The time is now for legislatures to repeal this doctrine.”

It’s come about because although in 1871 Congress created a law allowing people to sue state and local officials who violated their rights, in 1967, the Supreme Court said there needed to be a “good faith” defense against claims. Then in 1982 the “legal right” was widened to “create immunity from damages if the legal right at issue was not ‘clearly established.'”

“Thus, even if a judge holds that a constitutional right exists, and finds that a government official violated this right, the official nonetheless is immune from paying damages—if that right was not ‘clearly established’ at the time,” the organization reported.

But that causes harm in two ways: “First, many victims of constitutional violations are not compensated for their injury. Second, many more people suffer constitutional violations, because the doctrine removes an incentive to government officials to follow the Constitution.”

For example, EFF explained, the known abuses include, which were ruled to have violated the Constitution, were left unpunished, jail officials who held a detainee in seven months of solitary confinement for asking to visit the commissary.

“It gets worse. Judges had been required to engage in a two-step qualified immunity analysis. First, they determined whether the government official violated a constitutional right—that is, whether the right in fact exists. Second, they determined whether that right was clearly established at the time of the incident in question,” EFF reported.

Then in 2009, the U.S. Supreme Court said the first step was unnecessary, simply allowing officials to be granted qualified immunity.

The result is that “many judges shirk their responsibility to interpret the Constitution and protect individual rights,” EFF said.

The result, EFF said, is a cycle where legal rights are undetermined, so government officials continue injuring the public because the law never is “clearly established.”

In one such result, the organization said, there was no punishment when a police officer trying to shoot a nonthreatening pet dog shot a child instead.

The EFF, with its work focused on digital rights, said, “Many police departments and other government agencies use high-tech devices in ways that invade our privacy or censor our speech. Likewise, when members of the public use novel technologies in ways government officials dislike, they often retaliate. Precisely because these abuses concern cutting-edge tools, there might not be clearly established law. This invites qualified immunity defenses against claims of digital rights violations.”

The organization said in one of its case, the question was over political speech.

“In Hunt v. Regents, we filed an amicus brief arguing that a public university violated the First Amendment by disciplining a student for their political speech on social media. The court erroneously held that the student’s rights were not clearly established, and declined to decide the issue going forward.”

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