The problem with this is that it would quickly become prohibitive with criminals going after the authorities who prosecuted them. I think immunity has to stand so long as they didn't break the rules but we need the system to do a better job of going after the bad apples.
That's fundamentally impossible. It's nonsensical to suggest that the government punish a private citizen for doing what the government forced that private citizen to do.
Any attempts to implement your proposal will lead to exactly one inevitable outcome: lawlessness. This is because, if the government does start punishing a certain class of private citizens for doing what the government forces them to do, private citizens will no longer voluntarily join that class.
I have over a decade of experience in prosecuting and defending cases under the UCMJ, I have an LL.M. in military criminal justice, I am qualified as a Special Trial Counsel, and I recently served as the Marine Corps Senior Defense Counsel for the National Capital Region.
Let me assure you that military law enforcement has qualified immunity.
That's a bad-faith interpretation of removing qualified immunity. If a police officer's actions can be found to have been necessary to their duty, the laws already protect them. Nobody proposes to "punish a private citizen for doing what the government forced that private citizen to do." The proposal is to hold them accountable when they exceed their remit.
> That's a bad-faith interpretation of removing qualified immunity.
No. On the contrary, it is the only good faith engagement with the issue. Bad faith arguments are in the majority on this thread.
> If a police officer's actions can be found to have been necessary to their duty, the laws already protect them.
Yes. By qualified immunity.
> Nobody proposes to "punish a private citizen for doing what the government forced that private citizen to do."
Yes. Removing immunity would do exactly that.
> The proposal is to hold them accountable when they exceed their remit.
That is already the substantive law. That's why the immunity is "qualified." *
(* EDIT: I should note that we're conflating a couple concepts here for the sake of general discussion, because the precise applicable doctrine depends on the method of holding them accountable. Qualified immunity is specifically a doctrine invoked in civil suits, typically in § 1983 suits.)
If it can be proven beyond a reasonable doubt, they should be prosecuted.
If it can be proven by a preponderance standard, the prosecutor should issue a Brady notice to the defense bar, which will in most cases naturally result in the police officer being fired or assigned to administrative duties.
I respect and appreciate your position. I believe we both have high expectations of prosecutors and law enforcement.
At the risk of presuming too much, your position wrt QI and other reforms might be summarized as "We already have sufficient rules. The rules must be followed. The proposed reforms would eliminate an important safe guards as well as not achieve the desired outcome."
Qualified immunity is indeed a doctrine, not a law. It is a construct of the Supreme Court and not subject to congressional oversight (or indeed any oversight other than the whim of a ruling judge). That is a fundamental problem which congress needs to fix.
From a practical standpoint, actual real-life laws already protect law enforcement officers in the process of their duties; the removal or codification of qualified immunity would not affect that in the slightest. Since the vast majority of qualified immunity invocations concern financial liability in civil suits, it would be simple to implement a liability insurance program (like medical malpractice insurance, but for police work) to shield officers from life-ruining financial responsibility for their actions.
Qualified immunity is doctrine and it is the law. It is doctrine that arises as a necessary implication of the foundation of a legal system.
> laws already protect law enforcement officers in the process of their duties; the removal or codification of qualified immunity would not affect that in the slightest
This is nonsensical. Qualified immunity is the very thing that protects law enforcement officers (and all other government officials) in the process of performing their duties.
To say that removing qualified immunity would have no effect on qualified immunity is not only tautologically false, it's a vile and dishonest attempt at gaslighting.
Thanks for the pointless personal attacks, but what you say is, in addition to needlessly insulting, factually incorrect. The US title code is littered with disclaimers preventing laws from "interfering with a law enforcement officer's execution of duty." In fact the US title code has to explicitly spell out what is inappropriate "under color of law," which term it defines, and most of those infractions listed are rights violations or discriminatory actions.
Fifteen states have the Law Enforcement Officer Bill of Rights codified into their statutes. The rest are either considering it or have something very similar codified into law.
Qualified immunity is not "the very thing" protecting law enforcement officers. It is, however, "the very thing" our elected representatives have almost no input into or control over. Removing qualified immunity would in fact not affect any of these actual laws, and replacing it with a codified law would enable more consistent and just application of the concept, which as I said before is currently just something a judge can decide whether and how to apply.
Correcting your ignorant claims is not 'gaslighting.' Your emotional distress over the matter does not qualify you to accuse me of abuse, and I don't appreciate your mischaracterization of my posts.
No. I'm sorry, but your understanding of this topic is fundamentally wrong, and it's so far off the rails that I don't know how to go about fixing it over the Internet.
Sovereign immunity, and the qualified immunity for agents of the sovereign which arises as a corollary, is a fundamental principle of Anglo-American law. It has nothing to do with whatever patchwork of the U.S. code you seem to be implying.
> if the government does start punishing a certain class of private citizens for doing what the government forces them to do, private citizens will no longer voluntarily join that class.
The government "forces" the police officers to engage in this malfeasance?
