The outcry over the U. S. Supreme Court’s ruling this week on presidential “qualified immunity” is purely political.
Portland activists have been arguing about qualified immunity for years except in a different context: Why can police get away with behavior that the rest of us can’t?
Cops aren’t the only ones who have some form of qualified immunity to protect them from being personally sued for doing their jobs. So do various government officials, principals and teachers.
Judges, prosecutors, legislators — among others — are also protected by immunity doctrines.
What can the medical profession do that the rest of us can’t? Studies show that well over 100,000 Americans a year die or are permanently disabled by diagnostic errors. Yet how often are doctors personally tried for manslaughter or murder? Malpractice maybe.
The Supreme Court ruling on qualified immunity for presidents riled the media and Democrats only because it appeared to favor Donald Trump.
In the most strident dissent, Justice Sonia Sotomayor hypothesized future presidential actions:
“Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune,” Sotomayor wrote. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
What did Sotomayor think when then-President Barack Obama ordered the assassination of Osama bin Laden?
U.S. presidents — whether they are Republican or Democrat — can be called upon to do some nasty work in defense of the nation.
It’s like when governors are asked to sign execution orders in states where there is still a death penalty.
In Oregon, Governors John Kitzhaber, Kate Brown and Tina Kotek — all Democrats — ignored the voter-approved death penalty. They sided with aggravated murderers and left the families of victims to face never-ending court dates. Murderers in the state of Oregon enjoy a kind of immunity all their own.
So do drug addicts and the mentally ill. (Soon to join this club are criminal offenders who claim a Traumatic Brain Injury, a trend Portland Dissent will report on later.)
CNN political contributor Van Jones said the Supreme Court gave Trump “a license to thug.”
Jones was on to something. There is a license to thug. The day after the Supreme Court’s qualified immunity decision, a case broke in California exhibiting how the license to thug has been nurtured.
On Tuesday afternoon, three young men tried to rob an older couple outside the Barnes & Noble book store in Fashion Island Mall in Newport Beach. One of the thugs ran over and killed the wife, while another thug randomly fired shots. The trio fled in a Toyota Camry. They failed to yield for a traffic stop.
Police gave pursuit and eventually caught all three. (If just reading a brief description of this crime conjured in your mind an image of two older white people being set upon by three persons of color, you are not a racist.)
Those cops who gave pursuit probably didn’t have time to consider what-if, what-if, what-if. In the police pursuit, what if the three thugs ran into a pedestrian or another vehicle? What if a totally innocent person were injured or killed? Would the officers be held responsible? Should the police have not given pursuit? Should the officers have stayed behind and commiserated with the husband, now a widower?
When the officers caught the three suspects, did the cops remember to be polite? Did they ask permission before handcuffing anyone? Were the handcuffs not too tight? Did any of the officers in the emotion of the moment use the F-word?
What does this crime and the Supreme Court’s decision on qualified immunity have to do with the day-to-day world the rest of us live in?
Some people’s jobs give them extra privilege so they can do their jobs.
The media’s coverage of the Supreme Court’s decision added to the confusion — even terror — of the public’s reaction.
There were New York Times’ readers who honestly believed Justice Sotomayor who wrote, “In every use of official power, the President is now a king above the law.”
Is Justice Sotomayor unaware of the absolute immunity afforded to her and other judges?
Here’s how that works. Should a judge release an accused violent criminal offender out on little or no bail pending his or her trial, and if that accused violent offender commits another violent crime, the judge cannot be held legally liable as an accessory before the fact because of absolute immunity.
It’s similar to the absolute immunity given to prosecutors. How could they ever investigate a crime or file charges if they had to act as if all offenders were innocent? The mere filing of charges in a case that was later dropped or that ended in acquittal could be grounds for a lawsuit against the prosecutor.
Have Americans — and our glorious, prize-winning media — become so partisan they can’t understand basic truths?
Speaking of which, no media on the planet enjoys a First Amendment privilege like ours. They aren’t even required to print corrections on a routine basis. You think you’ve been libeled? Go hire an attorney — if you can afford one.
Here in Portland, ending qualified immunity for police has long been an issue. Some members of the city’s various citizen watchdog groups think it would automatically enhance police accountability. It would allow citizens to personally sue individual police officers for violating their civil rights.
However, it also could easily lead to frivolous lawsuits by people who don’t like the authority that cops have. Portlanders already show a readiness to complain of “courtesy violations” against officers.
In 2021, following the 2020 riots on behalf of George Floyd, a Minneapolis fentanyl addict who died while resisting arrest, the Oregon legislature passed several police reform bills — some reasonable, some not.
Reasonable: Requiring police officers to be trained in airway and circulatory anatomy and physiology. Unreasonable: Basically eliminating the crime of interfering with a peace officer during “passive” protests and allowing protesters to ignore dispersal orders.
But the biggest “reform” — ending police officers’ qualified immunity — didn’t make the cut in that bunch of bills. Legislators promised it would come back in the future. So far, it hasn’t.
In 2020, Colorado claimed to be the first state to enact legislation to end qualified immunity for cops after national and local public demonstrations against excessive use of force by law enforcement. New Mexico followed suit in 2021.
Last year, Nevada’s state Supreme Court ruled that police didn’t have qualified immunity. The victor in that case involved a woman who was strip-searched for contraband while visiting her boyfriend in prison.
For more than a decade, Montana has offered police no qualified immunity in lawsuits involving violations of due process, privacy, and search and seizure.
As the prosecutions of Derek Chauvin and other officers have shown, qualified immunity doesn’t offer absolute protection. It doesn’t protect police from being prosecuted for criminal offenses. Chauvin is now in prison for the murder of Floyd, whose family received at least $27 million in a settlement with the city of Minneapolis.
School principals, teachers and school board members enjoy the same qualified immunity that police officers do. Educators have tried to distance themselves from the concept by condemning it for police.
In 2020, following Floyd’s killing, the National Education Association and the American Federation of Teachers both signed a letter calling on Congress to enact police reform. The educators demanded an end to the qualified immunity doctrine “which prevents police from being held legally accountable when they break the law.” That was an oversimplification of the doctrine, since obviously police can be held accountable.
While educators feel tarnished by sharing the same qualified immunity that cops enjoy, social workers and mental health workers are seeking the same protections. Like police, they often have to deal with difficult people.
The American Medical Association has said that proper mental health care requires qualified immunity protections. It cited a case in Pennsylvania where a patient’s wife asked the state Supreme Court to let her pursue a lawsuit against a hospital for failing to provide care for her husband. He was hallucinatory and physically abusive toward the staff.
Donald Trump’s qualified immunity isn’t so special.
As the Heritage Foundation noted, presidents have historically found ways to get what they want. Executive orders, for instance.
President Obama moved to protect millions of illegal immigrants from deportation using his executive powers. In 1942, President Franklin D. Roosevelt gave the military the authority to confine Japanese and German Americans to internment camps. In 1948, President Harry Truman’s ordered the armed forces to be racially integrated. In 1957 President Dwight Eisenhower ordered public schools to be desegregated.
Among the most hypocritical outraged reactions to the qualified immunity doctrine was that of the Innocence Project, a group of criminal defense attorneys who have succeeded in freeing prison inmates, ostensibly because they are all innocent. (Not all of them are.)
After the Supreme Court decision, the Innocence Project took to Twitter/X and urged New York to become the next state to end qualified immunity for police.
Yet criminal defense attorneys have their own immunity protection. A defense attorney can know that his client is guilty but is under no obligation to reveal the truth. Even worse, a defense attorney can know that his client killed someone, and that an innocent man has taken the fall and is sitting in prison. The defense attorney cannot be held liable for not coming forward.
The outcry over the Supreme Court’s decision on qualified immunity was misplaced. It was part of the reaction to the Presidential debate and Biden’s poor performance.
At the same time, there was little commentary about the casual references both candidates made to a Third World War.
Should we have WWIII, the finer points of “qualified immunity” for the president will likely be of less interest to the Republicans, Democrats or media.
Awesome Pamela, thank you for providing an alternate perspective!
Nixon’s misconduct was addressed through impeachment.
Ford, wisely, prospectively pardoned Nixon.