Friday, August 7, 2020

Federal Appeals Court Rules That The PACER System Overcharges The Public

 Appeals court rules that judiciary misspent funds from court records fees

© iStock


OK! The first step is won, now we need to get Congress to approve making access free to all Courts' records. The public should not have to pay for public information.


Betsy Combier



Appeals court rules that judiciary misspent funds from court records fees

The HillBY HARPER NEIDIG - 

A federal appeals court on Thursday ruled that the federal judiciary has been misusing the fees it charges the public for access to court records.

A three-judge panel on the Federal Circuit Court of Appeals upheld a district court decision that ruled the Administrative Office of the United States Courts had improperly spent money from access fees on programs that had nothing to do with maintaining the public's ability to access court documents.

Judge Todd Hughes wrote in a decision for the panel that the law requires courts to limit the fees charged to access records to "the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information."

The case concerns a lawsuit brought by legal groups challenging the court system's Public Access to Court Electronic Records (PACER) program, which charges the public 10 cents for every page of a document they access, though documents exceeding 30 pages are capped at $3.

Critics argue that the fees are excessively high.

"We're thrilled that the Federal Circuit recognized that the federal judiciary's PACER system has been charging people more than the law allows for access to court records," said Deepak Gupta, an attorney representing the organizations that filed the lawsuit. "The judiciary's antiquated paywall inhibits ordinary people's access to the courts, prevents journalists from covering what the courts are up to, and makes important academic research difficult or impossible. The next step should be to make access completely free."

A district judge ruled in 2018 that the court system had unlawfully used PACER fees on a study regarding electronic access to Mississippi state court documents, a program sharing information with local law enforcement on violent offenders, and the costs of an electronic juror-management system.

The circuit court upheld those findings, but rejected the plaintiffs' efforts to expand the scope of the decision.

"As to those amici urging the elimination of all fees for accessing electronically available court records, we agree with the government that those calls are better directed to Congress," Hughes wrote in Thursday's ruling.

Wednesday, July 22, 2020

Tammy Dombeck Wins $215,000 in Age Discrimination Lawsuit Against CBS Stations Group of Texas


I think Tammy looks gorgeous. I'm glad she won and can help CBS Stations Group get their act together on hiring women over the age of 27.

Betsy Combier
betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials 


CBS Stations Group of Texas to pay Tammy Dombeck $215,000
Mikemcduff.com, July 15, 2020

Former CBS11 KTVT Dallas - Fort Worth Metroplex freelance traffic reporter Tammy Dombeck Campbell will be paid $215,000 and furnished "significant equitable relief" to settle a federal age discrimination lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) has announced.

Here is more from the EEOC press release:

The EEOC charged that CBS violated federal law when it refused to hire Tammy Dombeck Campbell for a full-time traffic reporter position at the Dallas/Fort Worth station because of her age. The EEOC said that Campbell had worked for CBS 11 as a freelance, non-staff traffic reporter.

When the station’s morning full-time traffic reporter resigned in October 2014, the company initiated a search for a replacement. The CBS job announcement stated that “the ideal candidate” would have a strong knowledge of local traffic in the Dallas/Fort Worth area and that the “applicant must have at least five years professional broadcasting experience.” The EEOC said that CBS 11 hired a 24-year-old applicant for the full-time traffic reporter position. The younger applicant was a former NFL cheerleader, and the EEOC maintained that the she did not meet the hiring criteria CBS had advertised. CBS 11 also had made an offer to a 27-year old applicant who accepted and then withdrew from the hiring process.

Such alleged conduct violates the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits discrimination against people age 40 or older. The EEOC filed suit (EEOC v. CBS Stations Group of Texas; Television Station KTXA and KTVT-TV, Civil Action No. 3:17-cv-02624) in the U.S. District Court for the Northern District of Texas, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process.

Under the consent decree signed by U.S. District Chief Judge Barbara M. G. Lynn, resolving the suit, CBS Stations Group of Texas will pay will pay $215,000 to Ms. Campbell and commits not to engage in age discrimination. The company will also provide training on the ADEA, publish a notice of employee rights, and report to the EEOC on its compliance with the requirements of consent decree.

“Tammy Campbell was clearly qualified for the position of traffic reporter,” said Joel Clark, EEOC senior trial attorney for the Dallas District Office. “The EEOC argued to the court that CBS 11 preferred a younger, less qualified applicant, and that the employer defaulted to unfounded stereotypes about female reporters.”

EEOC Regional Attorney Robert A. Canino added, “In explaining its decision, the company relied on what was called the ‘it’ factor. The EEOC was prepared to prove that, for Ms. Campbell, ‘it’ was her age. We hope that the resolution of this case will be another step forward in moving past ageist attitudes that can limit opportunities in the field of broadcast television.”

RELATED
An exclusive interview with former CBS11 traffic anchor Tammy Dombeck and her EEOC attorneys, who are taking the station to court on charges of age discrimination (2017)

According to her bio, Dombeck has covered DFW traffic on the radio for such stations as KLIF, KPLX, KZPS, and KKDA. In addition to TV news traffic on KTVT, she also covered it for NBC 5 KXAS in Dallas for 12 years.

UPDATE JULY 17, 2020
KTVT released a statement on the settlement to the Fort Worth Star-Telegram which said, “We are pleased this matter has been resolved to the satisfaction of all parties.”


The Age Discrimination in Employment Act of 1967 (ADEA)
The ADEA forbids discrimination on the basis of age against employees and applicants who are 40 years old or older. Even though the federal anti-discrimination law has been in place for many years, age discrimination remains a problem in the workplace, experts say. A recent AARP investigation found that ageism at work is widespread; more than a fifth of employees over age 40 in a Hiscox Ageism in the Workplace Study said they had experienced age discrimination in the workplace.

Several employers have settled claims of age bias in hiring recently. Earlier this year, PwC agreed to pay $11.6 million and change its recruiting practices to settle a claim that its targeting of recent college grads amounted to age discrimination. Norfolk Southern Corp., a freight hauler, likewise agreed to pay $350,000 in February to settle an EEOC age discrimination lawsuit alleging the freight transportation company refused to hire qualified individuals over the age of 51 for railway security positions.

Compliance with the ADEA can start with recruitment efforts, stakeholders say. When designing plans that attract a diverse pool of candidates, employers can include age in their inclusion strategies. Avoiding terms such as "established" or "digital native" can help, sources previously told HR Dive. It's worth noting, too, that experts say recruiting heavily based on social media can disproportionately attract younger applicants.

Employers can reduce discriminatory employment decisions in hiring, promotion, and assignment by establishing written criteria tied to business needs for evaluating candidates and consistently applying the requirements to all candidates, the EEOC has said.

Monday, July 6, 2020

Ghislaine Maxwell Charged In Manhattan Federal Court For Conspiring With Jeffrey Epstein To Sexually Abuse Minor


Epstein Confidante Ghislaine Maxwell Arrives in New York City, Bail Hearing Looms

                   Additionally Charged With Perjury in Connection With 2016 Depositions
Audrey Strauss, the Acting United States Attorney for the Southern District of New York, William F. Sweeney Jr., the Assistant Director-in-Charge of the New York Field Office of the Federal Bureau of Investigation (“FBI”), and Dermot Shea, Commissioner of the New York City Police Department (“NYPD”), announced that GHISLANE MAXWELL was arrested this morning and charged with enticing a minor to travel to engage in criminal sexual activity, transporting a minor with the intent to engage in criminal sexual activity, conspiracy to commit both of those offenses, and perjury in connection with a sworn deposition.  The indictment unsealed today alleges that between at least in or about 1994 through 1997, MAXWELL and co-conspirator Jeffrey Epstein exploited girls as young as 14, including by enticing them to travel and transporting them for the purpose of engaging in illegal sex acts.  As alleged, knowing that Epstein had a preference for young girls, MAXWELL played a critical role in the grooming and abuse of minor victims that took place in locations including New York, Florida, and New Mexico.  In addition, as alleged, MAXWELL made several false statements in sworn depositions in 2016.  MAXWELL is expected to be presented this afternoon in the federal court in New Hampshire. This case is assigned to U.S. District Judge Alison J. Nathan.
Acting U.S. Attorney Audrey Strauss said:  “As alleged, Ghislaine Maxwell facilitated, aided, and participated in acts of sexual abuse of minors.  Maxwell enticed minor girls, got them to trust her, and then delivered them into the trap that she and Jeffrey Epstein had set. She pretended to be a woman they could trust.  All the while, she was setting them up to be abused sexually by Epstein and, in some cases, Maxwell herself.  Today, after many years, Ghislaine Maxwell finally stands charged for her role in these crimes.”
FBI Assistant Director William F. Sweeney Jr. said:  “Preserving the innocence of children is among the most important responsibilities we carry as adults.  Like Epstein, Ms. Maxwell chose to blatantly disregard the law and her responsibility as an adult, using whatever means she had at her disposal to lure vulnerable youth into behavior they should never have been exposed to, creating the potential for lasting harm. We know the quest for justice has been met with great disappointment for the victims, and that reliving these events is traumatic. The example set by the women involved has been a powerful one. They persevered against the rich and connected, and they did so without a badge, a gun, or a subpoena - and they stood together. I have no doubt the bravery exhibited by the women involved here has empowered others to speak up about the crimes of which they've been subjected.”
NYPD Commissioner Dermot Shea said:  “The heinous crimes these charges allege are, and always will be abhorrent for the lasting trauma they inflict on victims. I commend our investigators, and law enforcement partners, for their continuing commitment to bringing justice to the survivors of sexual assault, everywhere.”
If you believe you are a victim of the sexual abuse perpetrated by Jeffrey Epstein, please contact the FBI at 1-800-CALL FBI, and reference this case.
According to the Indictment[1] unsealed today in Manhattan federal court:
From at least 1994 through at least 1997, GHISLAINE MAXWELL assisted, facilitated, and participated in Jeffrey Epstein’s abuse of minor girls by, among other things, helping Jeffrey Epstein to recruit, groom, and ultimately abuse victims known to MAXWELL and Epstein to be under the age of 18.  The victims were as young as 14 years old when they were groomed and abused by MAXWELL and Epstein, both of whom knew that their victims were in fact minors.  As a part and in furtherance of their scheme to abuse minor victims, MAXWELL and Epstein enticed and caused minor victims to travel to Epstein’s residences in different states, which MAXWELL knew and intended would result in their grooming for and subjection to sexual abuse.
As alleged, MAXWELL enticed and groomed minor girls to be abused in multiple ways. For example, MAXWELL attempted to befriend certain victims by asking them about their lives, taking them to the movies or taking them on shopping trips, and encouraging their interactions with Epstein.  MAXWELL also acclimated victims to Epstein’s conduct simply by being present for victim interactions with Epstein, which put victims at ease by providing the assurance and comfort of an adult woman who seemingly approved of Epstein’s behavior.  Additionally, to make victims feel indebted to Epstein, MAXWELL would encourage victims to accept offers of financial assistance from Epstein, including offers to pay for travel or educational expenses.  MAXWELL also normalized and facilitated sexual abuse by discussing sexual topics with victims, encouraging them to massage Epstein, and undressing in front of a victim.
As MAXWELL and Epstein intended, these grooming behaviors left minor victims vulnerable and susceptible to sexual abuse by Epstein.  MAXWELL was then present for certain sexual encounters between minor victims and Epstein, such as interactions where a minor victim was undressed, and ultimately MAXWELL was present for sex acts perpetrated by Epstein on minor victims.  That abuse included sexualized massages during which a minor victim was fully or partially nude, as well as group sexualized massages of Epstein involving a minor victim where MAXWELL was present.
As alleged, minor victims were subjected to sexual abuse that included, among other things, the touching of a victim’s breasts or genitals, placing a sex toy such a vibrator on a victim’s genitals, directing a victim to touch Epstein while he masturbated, and directing a victim to touch Epstein’s genitals.  MAXWELL and Epstein’s victims were groomed or abused at Epstein’s residences in New York, Florida, and New Mexico, as well as MAXWELL’s residence in London, England.
Additionally, in 2016, while testifying under oath in a civil proceeding, MAXWELL repeatedly made false statements, including about certain specific acts and events alleged in the Indictment.
*                      *                      *
GHISLAINE MAXWELL, 58, is charged with one count of enticing a minor to travel to engage in illegal sex acts, which carries a maximum sentence of five years in prison, one count of conspiracy to entice a minor to travel to engage in illegal sex acts, which carries a maximum sentence of five years in prison, one count of transporting a minor with the intent to engage in criminal sexual activity, which carries a maximum sentence of 10 years in prison, one count of conspiracy to transport a minor with the intent to engage in criminal sexual activity, which carries a maximum sentence of five years in prison, and two counts of perjury, each of which carries a maximum sentence of five years in prison.
The statutory maximum penalties are prescribed by Congress and are provided here for informational purposes only, as any sentencing of the defendant would be determined by the judge.
Ms. Strauss praised the outstanding investigative work of the FBI and the NYPD.
This case is being handled by the Office’s Public Corruption Unit.  Assistant U.S. Attorneys Alex Rossmiller, Alison Moe, and Maurene Comey are in charge of the prosecution.
The charges contained in the Indictment are merely accusations.  The defendant is presumed innocent unless and until proven guilty.

Friday, June 26, 2020

Jack Abramoff Pleads Guilty to Criminal Conspiracy Charges and Lobbying

FILE - This Feb. 2, 2012 file photo shows former lobbyist Jack Abramoff speaking
 in Washington. (AP Photo/Charles Dharapak, File)

Lobbyist Abramoff charged in cryptocurrency fraud case


BY ASSOCIATED PRESS AP
PUBLISHED 9:31 PM ET JUN. 25, 2020

SAN FRANCISCO (AP) — Jack Abramoff, a once-powerful lobbyist who spent time in federal prison for fraud and corruption, has been charged in a San Francisco court in an investor fraud case involving cryptocurrency and lobbying disclosure, federal authorities announced Thursday.

U.S. Attorney David Anderson said Abramoff, 61, of Silver Spring, Maryland, has agreed to plead guilty to criminal conspiracy charges and a criminal violation of the Lobbying Disclosure Act in the case involving a cryptocurrency called AML BitCoin.

Anderson said the charges were the first brought since Congress in 2007 amended the act to address lobbying abuses and undisclosed influence that came to light during the early 2000s lobbying scandal involving Abramoff.

Abramoff pleaded guilty in 2006 to a wide-ranging influence peddling probe that involved Capitol Hill, the Interior Department and members of President George W. Bush’s administration. He was convicted of conspiracy, mail fraud, and tax evasion and served nearly four years in prison. He was released in 2010.

Prosecutors said in 2017 Abramoff lobbied members of Congress on behalf of a California-based marijuana industry client without registering as a lobbyist.

“Abramoff was aware of the obligations to register as a lobbyist in part because Congress amended provisions of the Lobbying Disclosure Act in 2007 in part as a reaction to Abramoff’s past conduct as a lobbyist,” court documents say.

The investor fraud charges stem from a separate lawsuit filed by the U.S. Securities and Exchange Commission, which claimed Abramoff and an associate, Roland Marcus Andrade, made false claims when they promoted AML BitCoin.

Andrade, 42, of Missouri City, Texas, was charged with fraud and money laundering in an indictment that was returned by the grand jury on June 20 and unsealed Thursday, Anderson said.

He said Abramoff has agreed to plead guilty and could face up to five years in prison. Anderson said Andrade is pleading not guilty.

Abramoff and Andrade could not immediately be reached for comment.

Andrade said his cryptocurrency called AML BitCoin used technologies that complied with the federal government's anti-money laundering laws and announced an initial offering of AML BitCoin in the amount of $100 million, federal officials said.

In July 2017, Andrade and his company NAC Foundation began selling AML BitCoin and raised at least $5 million through the end of 2018, prosecutors said.

"As alleged today, AML BitCoin did not have the features claimed by the defendants,” said John Bennett, special agent in charge of the San Francisco Division of the Federal Bureau of Investigations.

Abramoff and Andrade are accused of making a series of false statements to potential investors about AML BitCoin, including that the government of Panama and the Panama Canal Authority were in talks to adopt the cryptocurrency for canal transit payments, officials said.

They also engineered a publicity stunt by saying that a Super Bowl ad touting AML BitCoin as non-hackable had been rejected by the National Football League on the grounds that it was too politically controversial, the officials said.

“In truth, the defendants never intended to air the Super Bowl ad. The defendants used paid editorials, social media and press releases in an effort to create a false controversy and generate unearned publicity,” Bennett said.


Court Papers

Disgraced Lobbyist Jack Abramoff Headed Back to Jail
Nathaniel Popper, NY Times, June 25, 2020

Mr. Abramoff became the first person charged with violating a law that was amended in response to his previous criminal offenses.

Wednesday, June 3, 2020

Abolish Qualified and Absolute Immunity

Some of the damage police did to Shaniz West’s home.
 Institute for Justice
The Courts or State legislature must get rid of absolute and qualified immunity for anyone, no matter what your position is. If you do something illegal and intentionally harm someone else, you must be held accountable by punishment that fits the crime.

Betsy Combier
Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials 




Government officials enjoy broad protections against lawsuits, and that includes rogue cops.

A SWAT team ruined Shaniz West’s house.

Police approached West because they believed her ex-boyfriend, who had an outstanding felony arrest warrant, was inside her home. (He wasn’t.) West gave the police permission to enter her home — an important fact because it meant that police could enter without a warrant — and lent an officer her key.
But West did not expect the police to smash her windows. Or to fire so much tear gas into the home that it saturated her possessions and made the house unlivable for two months. Or to fire tear gas canisters at such velocity that her walls and ceilings suffered extensive damage. The city gave her only $900 to cover her losses, plus a hotel room for three weeks.
And yet, when West sued, a federal appeals court determined that her lawsuit was dead on arrival. The culprit was qualified immunity, a doctrine that gives government officials broad — if not entirely limitless — protection against federal lawsuits.
The unusual lawsuit immunity enjoyed by police is under increased scrutiny in the wake of nationwide protests inspired by the killing of George Floyd by a Minneapolis police officer. One lawmaker, Rep. Justin Amash (I-MI), has even proposed legislation that would abolish qualified immunity altogether.
In theory, qualified immunity shields government officials from lawsuits involving novel legal claims. As the Supreme Court held in Harlow v. Fitzgerald (1982), “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
In practice, however, qualified immunity can protect truly egregious conduct by police. As the Supreme Court put it in Malley v. Briggs (1986), qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”
In West’s lawsuit, West v. City of Caldwell, two members of a three-judge panel determined that the officers who trashed West’s home are entitled to qualified immunity — because there was no previous case specifically holding that when a homeowner gives police consent to enter their house, that consent does not entitle police to smash windows or to fire chemical weapons into the home.
To prevail in her case, the Court reasoned, West would have to produce a binding precedent establishing “a constitutional rule specific enough to alert these deputies in this case that their particular conduct was unlawful” (emphasis in original).

Why does qualified immunity exist?

The premise of the Supreme Court’s qualified immunity cases is that government officials will do their jobs less efficiently and with less enthusiasm if the threat of a lawsuit looms over them.
As the Court explained in Harlow, qualified immunity does not simply protect public employees from the “expenses of litigation.” It ensures that the stresses of litigation won’t divert “official energy from pressing public issues,” and that concerns about being sued won’t deter “able citizens from acceptance of public office.” Finally, the Supreme Court also warned about “the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’”
These are not frivolous concerns. Qualified immunity applies broadly to government officials, not simply to police officers. So, in a world without qualified immunity, religious conservatives could harass civil rights officials with lawsuits to discourage those officials from enforcing laws prohibiting anti-LGBTQ discrimination. Koch Industries could bombard EPA officials with lawsuits discouraging them from enforcing environmental laws.
And as the Supreme Court lurches right, government employees could not be certain that their actions would be upheld by the justices — even if existing precedents clearly establish that those actions are lawful. Public employees could face financial ruin every time the Supreme Court overruled a precedent.
Yet whatever the wisdom of providing some lawsuit immunity to most public employees, most government officials do not have guns. Teachers and firefighters — or, for that matter, civil rights commissioners and EPA officials — typically do not smash the windows of an innocent woman’s home and saturate the interior with tear gas.
It’s one thing to say that public employees should generally be able to do their jobs without having to fear an onslaught of lawsuits. It’s another thing entirely to give sweeping legal immunity to people who are authorized by the state to inflict violence on citizens, and potentially even to take another person’s life.

How qualified immunity works in practice

The primary purpose of qualified immunity is to ensure that public officials do not face expensive litigation when the legality of their actions is uncertain. Qualified immunity is not a complete shield against liability. It only protects government employees whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
For several years, this meant that the first government official to violate the law in a new or innovative way typically got off scot-free, but subsequent officials could then be placed on notice that they better not engage in similar behavior. In Saucier v. Katz (2001), the Supreme Court held that judges hearing qualified immunity cases must conduct a two-step inquiry.
Courts must first ask whether “the facts alleged show the officer’s conduct violated a constitutional right.” Then, after determining whether the defendant violated the law, the court would determine whether that defendant was nonetheless entitled to qualified immunity because the illegality of their actions was not “clearly established.”
Thus, as time passed, courts would declare more and more conduct illegal, and government officials would then be on notice that they could not emulate that conduct.
But the Court largely abandoned this two-step framework in Pearson v. Callahan (2009), which held that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus, judges now have the power to dispose of cases on qualified immunity grounds without ever ruling on whether anyone’s rights were violated. As a recent Reuters investigation notes, moreover, judges are increasingly likely to declare government officials immune from a suit without resolving whether those officials acted illegally.
Government officials also enjoy extraordinary procedural protections in qualified immunity cases. As attorney Raffi Melkonian notes on Twitter, in qualified immunity cases, “the defendant gets an automatic, immediate, appeal to the Court of Appeals” if they are denied qualified immunity by a federal trial court. Moreover, civil procedure rules often allow a defendant to raise qualified immunity at two different phases of a trial court proceeding — and if the court denies qualified immunity at each phase, both denials can be immediately appealed.
According to Melkonian, that means that, even in the best-case scenario, if you are a plaintiff suing a government official “you have 2-3 years of appellate procedure in every single case even before you win the case.” That’s a long time to wait for a judgment, and it discourages many lawyers from taking these cases — because they are unlikely to win, even less likely to win quickly, and will have to invest considerable resources into these lawsuits before they have any real shot of getting paid.
And then let’s say that a victim of police violence does ultimately prevail in a suit against a police officer. Even then, the likelihood that the officer will be required to compensate the victim is negligible. Many jurisdictions have indemnity laws, providing that the government will pay for any damages awarded against a police officer. These laws are so common that a 2014 study by UCLA law professor Joanna Schwartz found that “during the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.”

There may be bipartisan opposition building to qualified immunity.

Conservatives have dominated the Supreme Court since President Richard Nixon appointed four justices in his first term. But the nature of judicial conservatism has changed dramatically over the past half-decade.
For much of this period, judicial conservatism was typically associated with deference to governmental power — and especially with deference to law enforcement. As Nixon wrote in 1967, “the first responsibility of government and a primary responsibility of the judicial system is to guarantee to each citizen his primary civil right — the right to be protected from domestic violence.”
In recent years, however, judicial conservatism has taken on a more libertarian tone. That doesn’t mean that the Roberts Court is a bastion of civil liberties for criminal defendants, but it does mean that several members of the Court’s Republican majority are protective of some of those liberties.
Chief Justice John Roberts, for example, often votes with his liberal colleagues in cases where police use new technology to conduct intrusive searches. Trump appointee Neil Gorsuch wrote the lead opinion in a case holding that criminal defendants may only be convicted by a unanimous jury. And Trump’s other appointee, Justice Brett Kavanaugh, is a longstanding opponent of racial jury discrimination — he even authored a law review note on that topic while he was still a student.
Meanwhile, Justice Clarence Thomas, the Court’s most conservative member, wrote in a 2017 opinion that his Court should “reconsider our qualified immunity jurisprudence.”
Thomas’s partial concurring opinion in Ziglar v. Abbasi (2017) is brief, and it is vague. The thrust of Thomas’s argument is that, when determining whether a government official should be immune from a particular suit, courts should rely on “common law” principles that existed more than a century ago, rather than the practical concerns raised in Harlow.
Does that mean that Thomas would join a five-justice majority in limiting qualified immunity? The answer to that question is unclear, but many litigants appear ready to test whether a majority of the Court is willing to rethink qualified immunity.
As many as a dozen cases are currently pending before the Supreme Court asking it to rein in the broad immunity currently afforded to government officials. One of those cases is Shaniz West’s case, which is now called West v. Winfield. The justices, moreover, have discussed whether to hear West’s case at six separate conferences — a sign that at least some members of the Court have taken an interest in the case.
Meanwhile, Rep. Amash, a former Republican with right-libertarian views, is seeking co-sponsors for legislation titled the Ending Qualified Immunity Act, which he says would “eliminate qualified immunity and restore Americans’ ability to obtain relief when police officers violate their constitutionally secured rights.”
That would be a bold step, which would likely go far beyond any limits that the Supreme Court would place on qualified immunity. And it not at all clear whether a majority of the House and the Senate would ever be willing to go so far.
Nevertheless, even if Congress does not ultimately decide to eliminate qualified immunity altogether, qualified immunity is a judicially created doctrine that isn’t grounded in the Constitution — which means that Congress has the power to alter that doctrine however it chooses. Congress could, for example, decide that law enforcement officers — or any other government official who carries a deadly weapon — should not enjoy the same broad immunity afforded to teachers, firefighters, or EPA officials.
It could ensure that, at the very least, police who kill, or wreck lives, or destroy people’s homes are not immune from suit.