The information on this blog about the corruption in America's courts will disgust and frighten you and propel you into a world of racketeering, greed, larceny, malicious prosecution, and outrageous disdain for due process, the Rule of Law, the United States Constitution, the Bill of Rights and Professional Responsibility Standards, Rules and Statutes. This is the Unified Court System of New York State. You will be a victim unless you speak up and protest. by Betsy Combier
“I participated in this lawsuit because federal parkland should not be used for housing anyone, let alone parkland that is in a recognized flood zone with nearly no resources. This is a federal problem and no matter how you feel, it is clear that Floyd Bennett Field is an inhumane location to house migrants and should not be allowed.”
I agree. Taxpayers should have a voice in where and how our taxes are spent.
I hope the almost 40 elected officials and civic leaders who filed the lawsuit will appeal.
After months of court proceedings, the Floyd Bennett Field migrant camp lawsuit has been dismissed by Judge Peter Sweeney, NYC Councilwoman Joann Ariola’s office announced on Wednesday, March 13.
The lawsuit, which stemmed from a Sept. 19 injunction filed by NYC Councilwoman Joann Ariola, NYS Assemblywoman Jaime Williams, NYS Assemblywoman Stacey Pheffer Amato and 36 other elected officials and civic leaders, challenged New York State’s authority to house migrants on Floyd Bennett Field, a national park site.
“We are extremely disappointed to learn of Judge Sweeney’s decision to dismiss our case in the Floyd Bennett Field lawsuit,” Ariola said. “We ask that Judge Sweeney publish the memorandum explaining exactly why he has decided this way, and we will continue to do what we can to push for an immediate closure of the tent complex at Floyd Bennett Field.”
“I am appalled by Judge Sweeney’s decision to dismiss our case, and disgusted to learn that he did so without notifying either party or the public,” Williams added. “We would love to know why he feels it is prudent to place 2000 human beings in a flood zone in the middle of a National Recreation Area. This is a disgrace and an insult to every tax paying citizen whom resides in the area around Floyd Bennett Field, and a disservice to the people who are being forced to live in this compound.”
“I believe Judge Sweeney made the wrong decision by dismissing our case against the poorly planned and ill-conceived housing for migrants at Floyd Bennett Field,” Pheffer Amato said. “I participated in this lawsuit because federal parkland should not be used for housing anyone, let alone parkland that is in a recognized flood zone with nearly no resources. This is a federal problem and no matter how you feel, it is clear that Floyd Bennett Field is an inhumane location to house migrants and should not be allowed.”
Supreme Court Justice Sonia Sotomayor didn’t recuse herself from multiple cases involving a book publisher – Penguin Random House – which paid her more than $3 million since 2010, according to a report.
The copyright infringement cases, in which Penguin Random House stood to suffer financial damage if the court ruled unfavorably, were not taken up by the high court but justices voted on whether or not to hear the cases.
Altogether, Sotomayor earned $3.6 million from Penguin Random House and its subsidiaries for agreeing to let them publish her 2013 memoir, “My Beloved World,” and numerous children’s books since then, the Daily Wire reported on Thursday.
The same year that her memoir came out, Sotomayor voted on whether the high court should take up Aaron Greenspan v. Random House.
Her liberal colleague at the time, Justice Stephen Breyer, recused himself from the case, having also received money from Penguin Random House.
The court does not reveal how justices vote in deciding whether to hear arguments in a case.
In 2020, Sotomayor also took part in deciding on a petition filed by fellow children’s author Jennie Nicassio, who argued that Penguin Random House was selling a book nearly identical to one she had already written and published. On the same day that the petition was delivered to the justices, Penguin Random House cut Sotomayor a check for $10,586, according to the Daily Wire.
Again, Breyer recused himself from the case that the court declined to take up.
Sotomayor, an appointee of former President Barack Obama, disclosed the income from her book publisher on her annual disclosure forms. The report on Sotomayor’s possible conflict of interest on the bench comes amid an effort by lawmakers on Capitol Hill to force the high court to revamp its code of ethics.
Democrats on the Senate Judiciary Committee have vowed to establish a new code of ethics and conduct for the Supreme Court justices if they refuse to come up with one themselves.
The push for ethics reform comes after several media reports related to conservative Justice Clarence Thomas and his close friendship with Republican megadonor Harlan Crow.
Last month, Thomas confirmed reports by ProPublica that he had repeatedly accepted travel from Crow over their more than two decades of friendship without disclosing it.
Thomas contends that he did not have to report the gifts on annual financial disclosure forms.
The outlet also reported that Crow purchased property from Thomas and his relatives.
On Thursday, ProPublica published another report alleging that Crow also paid for the private school tuition of Thomas’ grandnephew.
A federal judge who said he will no longer hire clerks from
Yale Law School garnered criticism from the legal community, one of whom said his comments could create ethics problems.
Legal ethics adviser and University of Miami Law professor
Jan Jacobowitz said comments from Judge James Ho of the U.S. Court of Appeals for the Fifth Circuit
criticizing Yale could create recusal problems in the future.
At a speech Ho gave Thursday to the Kentucky Chapters
Conference of the Federalist Society, he pledged not to hire students who “want
the closed and intolerant environment that Yale embraces today,” referencing a
March event hosted by Yale’s Federalist Society chapter that featured Kristen
Waggoner of the Alliance Defending Freedom. Conservative outlets claimed
protestors, who opposed Waggoner for her anti-LGBTQ views, were so loud and
violent that police needed to be called. Other reports suggest the scene was
less dramatic.
Calling Ho’s refusal to work with Yale grads because of the incident “irony 2.0,” Jacobowitz said future Yale Law graduates who go before Ho for hearings could fear the judge is biased against them.
“Any party who retains a Yale law school graduate or happens to be a Yale graduate might reasonably believe that they would get a fair trial in the judge’s courtroom,” she explained.
Ho’s talk about resisting cancel culture accused Yale of tolerating and actively practicing the cancellation of opposing views. The judge has himself hired at least two clerks who graduated from Yale Law School in the past, according to a LinkedIn search and a Claremont Institute announcement. In his speech, Ho said his pledge wouldn’t apply to current Yale students.
Former U.S. District Judge Jeremy Fogel of the Northern District of California, who is the executive director of Berkeley Judicial Institute, said that while there are issues that need to be addressed on civility, Ho’s efforts will be viewed as partisan.
“The speakers to whom Judge Ho refers are identified with conservative or libertarian viewpoints, and he singles out Yale Law School as a particularly intolerant environment with respect to those views,” Fogel said. “In that context, the boycott he proposes inevitably will be seen as partisan.”
“At the same time, there is an underlying reality that our law schools and society generally need to address, which is our growing inability to deal civilly with deeply-felt differences,” Fogel said. “Law schools can be leaders in making a serious commitment to inclusion and respect for differences of all kinds and in helping students to develop the concrete communication skills that can make that possible.”
“Sometimes that means being able to listen to things that are upsetting, and sometimes it means making a genuine, thoughtful effort to understand why people are upset,” Fogel added.
Yale Law declined to comment.
In his speech, Ho said his refusal to hire Yale clerks is no different from standing orders that some judges have issued stating they will give more oral argument time to younger lawyers, or a push from jurists to appoint diverse attorneys for lead counsel in class action litigation. Ho also appeared to reference a “statement” from Justice Samuel Alito in the denial of review in the 2013 case Martin v. Blessing, where the justice criticized a trial judge’s “highly unusual” practice of using race and sex when picking class counsel.
“If judges can tell litigants which lawyers they should hire—and presidents which judges they should appoint—then surely I can say whose graduates I will hire as law clerks in my own chambers,” Ho said Thursday.
But those who would be impacted by Ho’s threat were unimpressed by his musing.
“Judge Ho has always been free to make hiring decisions as he sees fit,” a Yale law student, who wished to remain anonymous, said. “I very much doubt that any liberal-leaning students had any desire to clerk for him, so his decision ironically only adversely impacts conservative-leaning Federalist Society members who agree with him ideologically.”
“Yale Law School is still the No. 1 ranked law school in the country and I fully expect that my peers and I will have no trouble finding prestigious clerkships and high-paying jobs,” they said.
Ho is not the first judge to criticize Yale. Senior Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit sent an email in March to all Article III judges suggesting that student-protestors who interrupted an on-campus Federalist Society event should be identified and disqualified from federal clerkship positions.
Also among those to criticize Ho for his comments was Georgia State University law professor Eric Segall. He called the jurist’s comments “insanity” before suggesting Ho failed to realize that cancel culture impacts both sides of the political spectrum.
“His arrogant view that this decision will somehow hurt Yale Law School is as unpersuasive as his judicial opinions,” Segall said.
Some questioned the irony of Ho’s comments, saying he is canceling Yale at the same time he condemns cancel culture. But the judge said in his speech that such observations miss the point.
“I would say that I’m doing the exact opposite of what Yale is doing. Cancel culture is about excluding people. I want institutions of higher learning to include people,” he said.
“I don’t want to cancel Yale. I want Yale to stop canceling people like me,” Ho added a short time later.
Ho was appointed to the bench in 2018 by former President Donald Trump, and is known for writing some fiery writing, including one concurrence last year where he accused his colleagues of applying a “woke Constitution.” Some ethics experts criticized a speech he gave earlier this year in which he said affirmative action policies that aren’t color-blind are “offensive and un-American.”
But he isn’t without supporters. Among those who lauded a Yale boycott is South Texas College of Law professor Josh Blackman.
“One judge cannot make a difference, but a critical mass of judges could force Yale to change its ways,” he said. “That school (Yale) lives on the prestige of federal clerkships, and will only respond when there is a threat to that prestige.”
Among those Ho lauded during his speech was Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute.
“Ilya is not the only legal scholar to face campus vitriol, for doing nothing more than standing up for mainstream principles,” the jurist said of the conservative commentator who was embroiled in a hiring controversy with Georgetown Law before taking a job with the institute.
Shapiro called Ho “brave” after the speech was made public.
“Something has to be done to disrupt the toxic atmosphere polluting too many law schools,” he added.
Supreme Court reporter Marcia Coyle contributed to this report.
A federal judge rejects the paper's summary judgment motion and sets a trial for February.
3:57pm PT by Eriq Gardner
Sarah Palin will proceed to trial against The New York Times next February, pandemic permitting. On Friday, U.S. District Court Judge Jed Rakoff rejected the paper's summary judgment motion in a big libel case over an editorial about gun violence. The New York federal judge concludes that she had provided enough evidence to establish actual malice on the part of the paper's former op/ed chief.
The editorial linked one of Palin's political action committee ads to a 2011 mass shooting that severely wounded then-Arizona Congresswoman Gabby Giffords. James Bennet, the writer of the editorial, wanted to make a point about a climate of political incitement, but The New York Times quickly made a correction acknowledging that no link had been established between Palin's ad and the shooting.
Rakoff had previously dismissed the suit in Aug. 2017, writing at the time that "in the exercise of that freedom, mistakes will be made, some of which will be hurtful to others."
The 2nd Circuit Court of Appeals then revived the case based on Rakoff's rash conclusion that Palin couldn't establish actual malice.
Back at the lower court, Palin aimed for something even greater than a win against The New York Times. She aimed to basically upend a half century of jurisprudence in libel cases by overthrowing the actual malice standard — that being how public figures must demonstrate awareness of falsity or reckless disregard of the truth.
Rakoff won't give that to Palin.
"Perhaps recognizing that this Court is not free to disregard preced3ent even if it were so inclined (which in this case it distinctly is not), [Palin] offers what she calls an alternative argument: that 'actual malice rule arose from distinguishable facts and should not be applied,'" writes Rakoff. "More precisely, [Palin's] argument is that the actual malice rule, which was first articulated more than half a century ago in the days before the Internet and social media, has run its course and should no longer govern our contemporary media landscape. Binding precedent does not, however, come with an experiation date. To the extend plaintiff believes the actual malice requirement ought to be abolished, she should make that argument to the appropriate court — the Supreme Court."
At the Supreme Court, Justice Clarence Thomas wants to get rid of actual malice, but whether that would ever happen is a subject for another day. In the meantime, she needs to establish actual malice to prevail.
Fortunately for Palin, Rakoff looks at the evidence and decides there's enough there, especially when viewing it in a light that is most favorable to her. In particular, he points to strong evidence that Bennet may have recklessly disregarded truth by failing to read stuff that the paper's researchers had been sending him on the topic of the shooter. The judge adds that his failure to investigate could support an inference he purposely avoided the truth.
Then again, it's no slam dunk and will be decided at a trial that Rakoff sets for February.
In the opinion (read here), Rakoff writes "there is considerable evidence that defendants mount to support the notion that Bennet simply drew the innocent inference that a political circular showing crosshairs over a Congressperson's district might well invite an increased climate of violence with respect to her. But, taken in the light most favorable to plaintiff, the evidence shows Bennet came up with an angle for the Editorial, ignored the articles brought to his attention that were inconsistent with his angle, disregarded the results the Williamson research that he commissioned, and ultimately made the point he set out to make in reckless disregard of the truth."
Notably, Bennet resigned as opinion editor in June after a controversy over publishing an opinion piece by U.S. Senator Tom Cotton that called for a military response to civic unrest in American cities. That article spurred a rebellion by much of the paper's staff. Bennet later acknowledged that this piece hadn't been edited carefully enough.
Sarah Palin’s defamation suit against the New York Times can move forward, a federal judge said on Friday.
US District Court Judge Jed Rakoff rejected the Times bid to dismiss the suit, which arose over a 2017 editorial Palin claims wrongly linked her to the 2011 mass shooting of Congresswoman Gabrielle Giffords. Palin was a 2008 Vice Presidential candidate and is a former Governor of Alaska.
Rakoff today said there was “sufficient evidence to allow a rational finder of fact to find actual malice by clear and convincing evidence.” While Rakoff allowed that much of Palin’s case was circumstantial, it was strong enough that a jury might find the Times and its former editorial page editor James Bennet acted with “actual malice by clear and convincing evidence.”
“We’re disappointed in the ruling but are confident we will prevail at trial when a jury hears the facts,” Times spokeswoman Danielle Rhoades-Ha said.
The 2017 editorial came after an Alexandria, Virginia mass shooting that wounded four people, including then-House Majority Whip Steve Scalise. The editorial said that the 2011 Giffords shooting came after Palin’s political action committee had circulated a map that put 20 Democrats, including Giffords, under “stylized cross hairs.”
The Times later issued a correction, saying there was no link between “political rhetoric” and the Giffords shooting. Bennet said he had not intended to blame Palin.
Rakoff disagreed. He said Bennet’s substantial rewrite of an earlier draft, and admission he was aware “incitement” could mean a call to violence, could suggest actual malice. Rakoff also noted that Bennet may have ignored materials that were not in step with his “angle” on the editorial, something that could be construed as a reckless disregard for the truth. .
In its ruling (read it here), the three-judge US Court of Appeals for the Second Circuit vacated and remanded Rakoff’s original ruling, reached after hearing from testimony from Bennet, on procedural grounds. Therefore it did not offer an opinion on the merits of Palin’s case.
“The district court (Rakoff, J.), uncertain as to whether Palin’s complaint plausibly alleged all of the required elements of her defamation claim, held an evidentiary hearing to test the sufficiency of Palin’s pleadings. Following the hearing, and without converting the proceeding to one for summary judgment, the district court relied on evidence adduced at that hearing to dismiss Palin’s complaint under Federal Rule of Civil Procedure 12(b)(6). We find that the district court erred in relying on facts outside the pleadings to dismiss the complaint. We further conclude that Palin’s Proposed Amended Complaint plausibly states a claim for defamation and may proceed to full discovery.”
Bennet testified in the unusual hearing that he did not intend to draw a “causal link” between the 2011 shooting that left Giffords severely wounded and a notorious “crosshairs” map distributed at the time by a Sarah Palin PAC.
Listening to Bennet’s testimony and considering the circumstances of law and otherwise, Rakoff made the call that Palin’s case could not effectively demonstrate actual malice, as would be required to move the matter forward.
Writing the Second Circuit’s ruling, Judge John M. Walker noted that it was clear Rakoff “viewed the hearing as a way to more expeditiously decide whether Palin had a viable way to establish actual malice. But, despite the flexibility that is accorded district courts to streamline proceedings and manage their calendars, district courts are not free to bypass rules of procedure that are carefully calibrated to ensure fair process to both sides.”
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.
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.”
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.
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 thather 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 thekilling of George Floydby a Minneapolis police officer. One lawmaker, Rep. Justin Amash (I-MI), has even proposed legislation that wouldabolish qualified immunity altogether.
In theory, qualified immunity shields government officials from lawsuits involving novel legal claims. As the Supreme Court held inHarlow 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 inMalley 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 alertthesedeputiesin this casethattheir particular conductwas 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 inHarlow, 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 couldharass civil rights officialswith 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 ifexistingprecedentsclearlyestablishthat 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. InSaucier 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 inPearson v. Callahan(2009), which held that “while the sequence set forth [inSaucier] 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 suitwithout 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 anautomatic, 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,bothdenials 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 isnegligible. 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, governmentspaid approximately 99.98% of the dollarsthat plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.”
There may be bipartisan opposition building to qualified immunity.
Conservatives havedominated the Supreme Courtsince 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 withdeference 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 hisprimarycivil right — the right to be protected from domestic violence.”
In recent years, however, judicial conservatism hastaken 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.
Thomas’s partial concurring opinion inZiglar 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 inHarlow.
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 asa dozen casesare 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 calledWest 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 theEnding 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.
