Re:New Mexico is the second state to ban qualified immunity
by JumpCrisscross on Thursday April 08, 2021 @02:57AM
(#26735883)
> Not particularly
Legally, given the facts and circumstances, mostly agreed. (Though, hell, I think even Kagan and Scalia were complaining a few years ago about the circuits splitting on these questions.)
Practically, I still argue it is. I'm not going out on a limb in saying that most people, cops or not, don't have a running list of unlawful behaviors for which there is clear judicial precedent. Which means when they commit an act, there is ambiguity--reasonable ambiguity, given we're consulting a litany versus heuristic--with respect to its legality. On a legal level, this is true of any action. On a practical level, it's not. (And the argument against limitedly abolishing qualified immunity largely revolves around it not being.)
I've watched two law firms evaluating a specific case with respect to a hypothetical amendment to qualified immunity statute come to wildly different conclusions about how it would be interpreted by the courts. That is practically grey area, even if legally it's operating on a hard-bound checklist. (New York State law is also a mess in this particular respect.)
Colloquially, if given a set of facts and circumstances it cannot confidently predict how the courts would rule, where questions must be answered about extraordinary circumstances and whether this unlawful action was sufficiently close to that case, the law can be said to be ambiguous and grey.
(Note: not sure why you're being downvoted. It's a good comment. To a striking degree, it illustrates the root of this issue, politically--the spirit of the law deviates wildly from its practice.)
Legally, given the facts and circumstances, mostly agreed. (Though, hell, I think even Kagan and Scalia were complaining a few years ago about the circuits splitting on these questions.)
Practically, I still argue it is. I'm not going out on a limb in saying that most people, cops or not, don't have a running list of unlawful behaviors for which there is clear judicial precedent. Which means when they commit an act, there is ambiguity--reasonable ambiguity, given we're consulting a litany versus heuristic--with respect to its legality. On a legal level, this is true of any action. On a practical level, it's not. (And the argument against limitedly abolishing qualified immunity largely revolves around it not being.)
I've watched two law firms evaluating a specific case with respect to a hypothetical amendment to qualified immunity statute come to wildly different conclusions about how it would be interpreted by the courts. That is practically grey area, even if legally it's operating on a hard-bound checklist. (New York State law is also a mess in this particular respect.)
Colloquially, if given a set of facts and circumstances it cannot confidently predict how the courts would rule, where questions must be answered about extraordinary circumstances and whether this unlawful action was sufficiently close to that case, the law can be said to be ambiguous and grey.
(Note: not sure why you're being downvoted. It's a good comment. To a striking degree, it illustrates the root of this issue, politically--the spirit of the law deviates wildly from its practice.)