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Thoughts on qualified immunity
That's the court-created defense (nowhere to be found in statute or constitution) which consists of -- a governmental actor cannot be civilly sued unless his conduct was "clearly established" as unconstitutional at the time he acted.
I could accept that as a defense IF the same were applied to a non-governmental actor (like you or I) charged with a crime. Then it'd be simple fairness: someone ought not to be sanctioned for conduct that a reasonable person would not have thought illegal. Instead, of course, the default position in criminal law is "ignorance of the law is no excuse."
Today's Supreme Court ruling in Taylor v. Barkes illustrates another problem with the doctrine. If no suit can be filed until a right is clearly established, and the only way to establish it is by a definitive ruling, how can a right ever become clearly established outside of the realm of criminal procedure? (Inside that realm, a person can make and win a motion to suppress evidence, thereby establishing the right without having to win a civil suit). Here, the Court holds there was qualified immunity, since the right claimed was not established by Supreme Court precedent or by a "robust consensus" of Court of Appeals cases, suggesting that nothing less suffices.
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I wonder if you would further tease out this issue. As a layman, I find what you wrote difficult to follow.
But intuitively, I know of what you speak is extremely important.
Thank you.
Has anyone ever tried to statutorily limit or dispense with qualified immunity?
?
Notice as well that a right cannot be "clearly established" by statute or even by the Constitution-- only by judicial ruling, no matter how clear the law is. Talk about a power grab...
Everything wrong with our government and our lack of fidelity to the Constitution and inalienable Rights is the result of the judiciary of the Union. Quoting myself, "There ain't no good intentions clause in the Constitution." The judiciary has mucked things up beginning with the first cases. Marshall screwed up so much it is unbelievable to think folks still look up to him as a source of anything but crap. His decisions are so easily proven wrong using just the clauses of the Constitution itself.
We have been brain-washed in the government schools to believe the Courts have some important say in things when in truth the Courts are the source of our troubles because:
Power corrupts and absolute power corrupts absolutely.
Bravo!
I am so sick of everyone behaving as if the US Constitution does not exist. Not only does it exist, IT is the supreme LAW, and the government of THIS land and all who serve within our governments - state or federal - in any position are lawfully BOUND and required to KEEP an Oath to support and defend it (except US presidetns wh oare held to the higher requirements of "Preserving, Protecting and Defending it).
Let's call it what it really is, misbehavior by the judge and a usurpation of power that was NOT AUTHORIZED to the branch that the judge occupies, or any other branch.
Judges are NOT given the authority to "interpret" it, they are given the honor and duty to make sure that ALL laws, regulations, governmental bodies, etc follow the US Constitution.
There is nothing within the US Constitution that needs interpreting as it was written so that any person can understand it without "hidden" and secret meanings, but if one was so dense or eduated to the opposite of its meaning all one has to do is read what was written within the era of its beginnings to know how it was "interpreted" - not the reinterpretation going on today.
The contract that ALL judges are under IS the US Constitution and (when applicable) the state Constitution where the judge presides.
Add to that the Constitution of the United States of America and all that is in Pursuance thereof it IS the supreme LAW of THIS land; and all laws, regulations, treaties, etc MUST be in Pursuance thereof it to be lawful here within our nation.
The US Constitution did not only define our government, it assigned the duties to the three branches, required a solemn and lawfully binding Oath that all would "support and defend" it BEFORE the orders of superiors, the duties of the position that they occupy, or anything else.
16 Am Jur 2d, Sec 177 late 2d, Sec 256: “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment, and not merely from the date of the decision so branding it. No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.”
The US Constitution assigns what all judges, state and federal, must do to be allowed to stay in a judicial position, they are:
-- Required to take, and keep an Oath(s), or a combined Oath.
-- Required to “support and defend” the US Constitution and all that is in Pursuance thereof it before the duties of the office they occupy.
-- Required to carry out the enumerated duties assigned to the judicial branch by the US Constitution in a constitutional manner.
US Constitution, Article III, Section 1: "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,..."
That is “Good Behaviour” for judges. The US Constitution itself lays out the behaviour that all judges must abide by, and be charged with "misbehavior", not using the lawfully required "Good Behaviour" while in office and given a (real) Grand Jury trial while the guilt or innocence of is decided by a jury of American citizens.
“The grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It is a constitutional fixture in its own right. In fact the whole theory of its function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people”.
“Thus, citizens have the unbridled right to empanel their own grand juries and present “True Bills” of indictment to a court, which is then required to commence a criminal proceeding. Our Founding Fathers presciently thereby created a “buffer” the people may rely upon for justice, when public officials, including judges, criminally violate the law.” (Misbehavior, “Good Behaviour” requirement)
“The grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such “supervisory” judicial authority exists. The “common law” of the Fifth Amendment demands a traditional functioning grand jury.”
“Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the judicial branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised.”
“The grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’ It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. The grand jury requires no authorization from its constituting court to initiate an investigation, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. It swears in its own witnesses and deliberates in total secrecy.”
“Recognizing this tradition of independence, we have said the 5th Amendment’s constitutional guarantee presupposes an investigative body ‘acting independently of either prosecuting attorney or judge”
“Given the grand jury’s operational separateness from its constituting court, it should come as no surprise that we have been reluctant to invoke the judicial supervisory power as a basis for prescribing modes of grand jury procedure. Over the years, we have received many requests to exercise supervision over the grand jury’s evidence-taking process, but we have refused them all. “it would run counter to the whole history of the grand jury institution” to permit an indictment to be challenged “on the ground that there was incompetent or inadequate evidence before the grand jury.” (Plus it would be unlawful for there is no one serving within our governments has any lawful jurisdictioin over the people's Grand Jury, the Militia, etc they are outside of, and authority was never granted to the states or the federal government.) Justice Antonin Scalia writing for the majority said In the Supreme Court case of United States v. Williams, 112 S.Ct. 1735, 504 U.S. 36, 118 L.Ed.2d 352 (1992)
the judicial branch duty to rein in the other two branches or the states is here when Judge Wythe (John Marshall’s law teacher) in his opinion in “Caton” where he indicated that it is a judge’s responsibility to check overreaching by the political branches by these words,
“If the whole legislature, an event to be deprecated, should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your authority; and, hither, shall you go, but no further.”
Papers of John Adams: “The dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.
The Judges therefore should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness and attention. Their minds should not be distracted with jarring interests; they should not be dependant upon any man or body of men.
To these ends they should hold estates for life in their offices, or in other words their commissions should be during good behaviour, and their salaries ascertained and established by law.
For misbehaviour the grand inquest of the Colony, the House of Representatives, should impeach them before the Governor and Council, where they should have time and opportunity to make their defence, but if convicted should be removed from their offices, and subjected to such other punishment as shall be thought proper.”
Article VI says that only the laws that are made in Pursuance thereof the US Constitution are lawful here in the USA. Anything else disguised as “law” is not legal or binding on US Citizens.
It also says that anyone serving within the federal or state governments MUST support the US Constitution or no longer meet the qualifications of the position or office they are occupying when it says this about qualifying for office or public trust:
“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
ALL justices – federal and state - MUST support the US Constitution and follow it or they no longer meet the contract, bound and verified by taking the Oath of Office, and would no longer lawfully be occupying the position they are serving in.
There was a time that Judges were generally well versed in political theory, and very strongly in the concept of Separation of Powers since it is their constitutionally assigned duty to see that it is upheld, which is as it should be.
Today they barely know and understand, if they do at all, the US Constitution and the duties assigned to the branch they serve within. Or they are deliberately working against and to destroy the US Constitution when it is the Supreme Law of our land, and only as long as it exists will they have the position they occupy.
Here in America we do NOT use the "laws" of foreign nations, nor do we use the laws of foreign entities, to do so is treason. Nor are we to use the "laws" of judicial precedence as judges are, and have been found to be, incorrect many times in their "opinions". That was well known to happne at the time that the US Constitution was written and is why the JURY, not the judges, make the final decisions concerning the law being used and the guilt/innocence.
John Adams: “It would be an absurdity for jurors to be required to accept the judge’s view of the law, against their own opinion, judgment, and conscience.”
U.S. vs. Dougherty, 1972: “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”
Yet today the judges behave as if they are kings in a land where the people are the "kings". They flout the duties and authority given tothem, give authority to the other branches where they have none to "give", etc.
Enforce the US Constitution FIRST, because if it is not in Pursuance thereof it in THIS nation, then it is color of law, null and void.
What a convenient way for those in power to get away with whatever shenanigans they desire. The sooner we start taking these guys down a peg, the better off our country will be.