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Sunday, May 23, 2010

Ending Qualified Immunity

Randy Balko, bogging at Instapundit while the professor is away, says this:
In the past, Professor Reynolds has mentioned his support for ending qualified immunity, the special protection from liability afforded to government employees.  I agree with him.  If anything, public employees should be held to a higher standard than the rest of us.

The story of Michelle Ortiz is an unfortunate example of qualified immunity in action.  Ortiz was molested by a prison guard while serving a one-year sentence at a correctional facility in Ohio.  When she reported the assault, prison officials did nothing.  Later the same evening, the same guard raped her.  When Ortiz reported the rape, prison officials ordered her to solitary confinement, and did nothing to punish the guard.  A jury awarded Ortiz $625,000. But a panel for the US 6th Circuit Court of Appeals threw out the verdict, finding that as state employees, the prison officials were protected by qualified immunity.

The Supreme Court will hear the case in the fall.  The argument for qualified immunity is that we don’t want state employees hampered by fear of lawsuits when they’re making important decisions–be they policy decisions, or in the case of law enforcement, split-second decisions in emergency situations.  The flip side of that, and what I find to be the more compelling argument, is that removing the possibility of liability (or at least making it very difficult for victims to win a lawsuit) is going to affect those decisions too.  People tend to act differently when there’s less chance that they’ll be held accountable for their actions.  That’s not a knock on government employees.  It’s human nature.

Prison rape is another issue Instapundit has spoken out about.  The current corrections culture that accepts prison rape as an inevitable part of hard time would change pretty quickly if we were to start holding prison guards, administrators, and wardens financially accountable for their negligence in allowing these rapes to continue.
I am with Randy Balko on this.

I wonder where Attorney General Martha Coakley stands?

Regards  —  Cliff

1 comment:

ncrossland said...

First and foremost, the entire concept and underlying legal framework of and for "qualified immunity" needs to be tossed. This is a case of bad law breeding further bad case law and resulting in many, many, many reprehensible unintended consequences.

The laws and their resultant operational philosophy does little more than provide a convenient shield for bad people to do bad things using the public good as the basis, and get away with it.

The Ohio prison rape case is emblematic of just how bad a legal principle can go in its application. Prison is not intended to be "hard" with respect to giving up all rights to human respect and decency and today, in far too many instances, we've surrendered to behavioral obscenities such as this and worse, simply because "it's too hard" to do otherwise....and we hide (as a society) behind shield laws such as the qualified immunity laws. In fact, the male rape of a female inmate is an occurance of far greater magnitude than anyone in the "free" part of society is willing to admit, and of an even greater reprehensible proportion is that of homosexual rape in prison. Everyone seems to acknowledge that it happens almost as a matter of normal daily prison life, and by social silence, consent to its practice as a consequence of being put in prison. I suggest that until we introduce and enforce a minimum standard of human respect and decency into our punitive processes....and ANY cost.....we can hardly expect "purity" in our normal society and ITS processes. We are only as good as we treat the least of us....and we treat them inhumanly poorly.

Qualified immunity is little more than the equivalent of putting pedophiles in charge of kindergardens and allowing them complete privacy.