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Comment by CobrastanJorji | Hacker News Reader

The Constitution puts limits on what the government can do, but if the government does those things anyway, there's no automatic penalty. You as an individual could ask a court to order the government to stop or otherwise undo the harm, but if you weren't harmed as a result of that unconstitutional act, or if you were harmed but there's nothing the court could do about it, then you don't have standing to ask the court to do anything.

It's something of a bug in the way America works. If cops conducting a search of your home disconnect all of your security cameras during the search, that's probably unconstitutional, but you can't prove that it harmed you, and being illegal isn't the same thing as being a crime, so it's just an unconstitutional thing that happened, and that's where the story ends.

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Of course, if they failed to disconnect all your security cameras, the story won't end there. You make a rap about the raid, put the cops stealing money from you in your music video, and the cops will turn around and sue you for invasion of privacy and emotional distress. You might need to be Afroman for that to work though. Also this was Ohio not California.

https://www.theguardian.com/us-news/2023/mar/23/ohio-police-...

Of course, you could argue that qualified immunity has no constitutional or solid legal basis either, and is basically a creation of the judicial branch to simplify exception handling.

Qualified immunity is self-evident. The idea that the government can violate the government's laws by performing lawful government duties is an inherent absurdity. It would also completely undermine democracy.

It's also tangential and off topic to this conversation.

that's not what qualified immunity is. qualified immunity means government officials can violate your rights by doing obviously illegal things as long as no government official has previously been convicted for doing the exact same thing.

No. You fundamentally misunderstand qualified immunity. What you have repeated here, I assume unwittingly, is a dishonest description put forward by activists.

Qualified immunity is the principle that a public official acting in good faith cannot be held personally liable for an action that is later determined to violate the Constitution. No reasonable person, other than a nihilist, could possibly disagree with qualified immunity. (For those who insist on viewing everything through a political lens, qualified immunity was first articulated wrt police officers by the extremely progressive Warren Court in an 8-1 decision, the same court that gave us Miranda and struck down anti-miscegenation laws in Loving.)

What many people do reasonably disagree with is the shift in Harlow so that the official is presumed to be acting in good faith, and the person whose rights were violated has the burden of proving otherwise (by showing clearly applicable precedent).

A reasonable person can, and many reasonable people do, oppose Harlow and think it should be overturned. But it is not possible to oppose qualified immunity without also opposing functioning democracy.

> Qualified immunity is the principle that a public official acting in good faith cannot be held personally liable for an action that is later determined to violate the Constitution. No reasonable person, other than a nihilist, could possibly disagree with qualified immunity

Actually no, it's perfectly reasonable to disagree with it as you've described. There is no analog for private companies - an employee can incorrectly think they're following the law, and end up being personally liable for actions they undertook in good faith for the company. Private companies get along just fine - in practice its not an impediment to companies accomplishing activities on the border of legality.

I do believe that the focus on qualified immunity is a bit of a red herring though. What really needs to be drastically curtailed is general sovereign immunity. If police arrest someone, bust up their home, hold them for days, etc, and it turns out they're innocent, the appropriate government needs to be held directly liable/responsible for those damages. The government/department can then sort out whether those damages were due to some employees not following written policies, and if so discipline them and subrogate the damages. Right now the damages caused by law enforcement are being left as an externality funded by a perverse reverse-lottery, so predictably the injustices keep growing.

Qualified immunity is the principle that an official cannot be sued for an action that isn't clearly shown to be unconstitutional. It shuts down a lawsuit before there is any fact finding as to whether or not the official was reasonably justified in their belief that their actions were constitutional.

Yes, being reasonably justified that actions were constitutional should be a valid defense. But qualified immunity isn't a defense, it's a vehicle to shunt cases out of the system before the question of defense is raised. And we already have a judicial mechanism to decide whether or not someone's actions were reasonable: pick 12 random people and ask them if they thought their actions were reasonable, aka, a jury trial. There's no need for qualified immunity.

That is plainly false, as any yahoo with a PACER account can tell you. It also continues to conflate qualified immunity as a principle (which dates back in some form to 1789 and by that name specifically to 1967) with the presumption established in Harlow in 1982, despite my clear explanation above.

As someone who went through the system you are wrong. Sure that might be a few cases ruled in your favor, but in the actual implementation of the rules as applied to those in the system you are incorrect. You are like the insurance company pointing to two cases where they approved treatment saying 'look, we don't deny treatment'.

This is adjacent to my area of expertise. I do not deal with qualified immunity every day, or even every week, but my colleagues 30 feet from me do. I feel pretty confident that I know what I'm talking about.

Your point of view (which I admit sounds informed, so please don’t take this the wrong way) seems to be at odds with how qualified immunity is generally discussed. Typically I’ve heard it referred to as an immunity not from damages, but from the lawsuit itself. Law.Cornell.edu seems to agree with me.

Which leaves me a little confused as to what exactly you think is false. That QI is an immunity from suit? Or that there is no fact-finding prior to a QI dismissal?

As an idiot with a PACER account I think I deserve an explanation. If I promise not to argue with you, will you please explain this a little more deeply?

(And yes, I read Harlow although I admit it didn’t make me feel much smarter).

You appear to be conflating a principle with its parameters. It's a category error. It's like being an early 2000s Java programmer and claiming that automatic memory management means freezing program execution at random intervals.

Under Harlow there is a presumption in favor of the official such that these suits are often dismissed at the 12(b)(6) stage. However, that is incidental. It is specific to Harlow. As such, while perhaps a valid criticism of the Harlow QI regime, it is not a valid criticism of QI; just as the valid criticism of coarse stop-the-world mark-and-sweep is nevertheless not a valid criticism of automatic memory management.

It's important to realize that the underlying principle of qualified immunity - that a person is distinct from their office - is centuries old and a fundamental bedrock of American democracy. It's why Marbury sought a writ of mandamus in the first place, rather than wringing money out of Madison. The qualified immunity regime we have now is not historically representative.

There was a case where it was ruled totally fine to feed inmates rotten food AS LONG AS if they asked they were then given human grade food. Here's the thing, asking comes with huge consequences (such as being put in a cell with notoriously aggressive Bob, then having your cell 'shaken down' for contraband every day and letting Bob know the cell is being targeted because you cause trouble). You should be able to go after a person knowingly serving food not fit for human consumption, but you can't, because precedent of this case now says it's OK (as long as you server human grade food on request which how can I prove they don't) so qualified immunity is to all Food Service Administrators from this precedent.

> Of course, you could argue that qualified immunity has no constitutional or solid legal basis either

Qualified (for discretionary acts) and Absolute (for ministerial acts) immunity applies to government officers, not the government entity employing them.

In both cases, the theory is that, where the immunity applies, the government employer, but not the employee, is liable for whatever violation of rights occurred. (I think QI has a sensible justification but is applied overly broadly.)

> and being illegal isn't the same thing as being a crime

I think in a very strict interpretation of what "lawful" and "criminal" means, this is likely true. There are civil infractions and there are "criminal offences." But most people, colloquially, equivocate "illegal" with "crime." And if the police engage in unlawful (illegal) activity, they can face penalty. So I'm not entirely sure what you're trying to say. Someone would, of course, need to file a complaint in a court of law, but that doesn't mean that they were "permitted" to do it and can't face penalty as a result of ignoring their lawfully mandated restrictions.

Also recognize, and disclaimer IANAL, that it does not require the Supreme Court to rule on a constitutional violation. The Supreme Court, as I'm sure most of us know, do not have the capacity to take all cases that are presented to them. First a chain of appellate courts must rule after which the Supreme Court becomes the last available avenue, and they typically only accept the "interesting" constitutional challenges... where "was this a constitutional violation or not?" has been deemed ambiguous.

But "lower courts" can, and do often, rule on whether something was a constitutional violation.

So I guess the point is, the police cannot engage in constitutional violations with impunity, but of course in order for them to face penalty a complaint would have to filed and it would need to be taken to trial and the police found guilty.

Say that a law says "No person may wear a green shirt."

Now say I go outside in a green shirt. I am now violating the law. If someone pointed this out and said, "that's not legal," they would be correct. A police officer or a court could compel me to change shirt, but I would never go to prison or be fined for wearing a green shirt because the law doesn't define any sort of penalty. It's not a misdemeanor. It's not a felony. It's just not legal.

Similarly, if government agents act in an unconstitutional manner, they are generally not committing any crimes. They are just doing something illegal. The police officers will not face any penalties besides perhaps a poor performance review on their job. The police office itself will not face any penalties besides perhaps, if there are enough serious violations, a DoJ investigation of some sort, which would at most aim to force them to stop doing illegal things.

I see and understand your point now. Thanks!

It sounds like the root cause is that the judicial system doesn't consider a search to be a harm in itself, only in the effects that it could have.

As an inmate you don't have standing in 1983 cases (your only attack against qualified immunity) unless you can demonstrate actual harm. How can I do that? I don't own anything, my prison slave labour job isn't going to fire me and I don't get docked daily lost wages (off my $5 a month flat pay), so how do I prove actual damages?

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