Qualified Immunity

The Majority of Americans Oppose Qualified Immunity. Where Is Congress?

American voters know what's up.

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A majority of Americans now support police reform measures like chokehold bans, demilitarization of domestic law enforcement, and the prioritization of investigating violent crimes instead of misdemeanor offenses.*

But, perhaps more significantly, a Pew poll recently found two-thirds of Americans oppose qualified immunity, the legal doctrine that makes it difficult to sue police officers when they violate your rights. Until recently, discussion of qualified immunity was confined largely to legal circles and to magazines like ReasonNow, it appears the doctrine—and opposition to it—have simultaneously gone mainstream.

Qualified immunity shields public officials from being held liable in federal civil suits if their misconduct did not exist near-identically in a court precedent prior to the alleged incident. Created by Harlow v. Fitzgerald (1982), the doctrine has stripped Americans of their right to sue civil servants even in the most egregious of instances.

In theory, the doctrine provides public officials with fair warning of what is and is not acceptable conduct and thereby allows them to do their jobs without fear of being sued. How does the doctrine actually work? Let's consider the case of two cops from Fresno, California, who allegedly stole $225,000 while executing a search warrant.

When deciding if the victims would be allowed to sue the officers, the judiciary condemned the stealing as indefensible but still protected the officers from any lawsuits. Although "the City Officers ought to have recognized that the alleged theft was morally wrong," wrote the U.S. Court of Appeals for the 9th Circuit, it decided that the officers "did not have clear notice that it violated the Fourth Amendment."

Put more plainly: You and I know stealing is wrong, and the cops definitely should've known stealing is wrong. But even if they did know that, they couldn't be held liable for violating the Fourth Amendment protections against government theft because there was no specific legal precedent declaring that it is unconstitutional for cops in a situation exactly like theirs to steal from the people they are sworn to protect and serve.

There are plenty of examples of qualified immunity protecting awful government behavior: The sheriff's deputy who shot a 10-year-old; the cop who shot a 15-year-old; the officers who assaulted and arrested a man for standing outside of his own house; the prison guards who locked a naked inmate in cells filled with raw sewage and "massive amounts" of human feces; the cops who sicced a police dog on a surrendering suspect; the officer who body-slammed a 130-pound woman after she disobeyed his command to "get back there."

But while Americans appear to see the very obvious and well-documented issues with qualified immunity, Congress—the branch of government best positioned to abolish the practice—won't touch the topic with a 10-foot pole.

The legislative stagnation isn't for lack of trying. Rep. Justin Amash (L–Mich.) introduced legislation to eliminate qualified immunity. With Rep. Ayanna Pressley (D–Mass.) as his co-sponsor, the bill eventually picked up Republican support. Sen. Mike Braun (R–Ind.) followed suit and crafted his own legislation, which would grant qualified immunity only to officers whose conduct is expressly permitted by federal regulation, federal statutes, state statutes, or case law—essentially the opposite of the current approach.

President Donald Trump has dismissed these efforts to reform qualified immunity as unworthy of his consideration. He is the law-and-order president, and even though qualified immunity is an insult to both law and order, it is also an insult to police unions.

Should presumptive Democratic nominee Joe Biden win in November, it's not completely clear what he would do on the issue. "Vice President Biden thinks qualified immunity has gone too far and needs to be severely reined in," says Jamal Brown, National Press Secretary for the Biden campaign. "It should not protect officers who abuse their power." That statement echoes Biden's "Unity Task Force" recommendations, which were drawn up in coordination with Sen. Bernie Sanders (I–Vt.).

The former vice president has not offered concrete details on how his reforms will distinguish between officials who deserve protection from federal civil lawsuits, but his track record suggests he will go (almost) wherever center-leftists tell him to. In this case, everyone to the left of Trump overwhelmingly supports sunsetting the doctrine.

For now, though, it appears qualified immunity is poised to meet a rather typical fate, in that it will likely stay exactly as it is.

CORRECTION: The original version of this piece misstated the third poll's findings. A majority of Americans support prioritizing violent crimes over misdemeanor crimes, not victimless crimes.

NEXT: When Choosing What To Believe, People Often Choose Morality Over Hard Evidence

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  1. I’ll bet most Americans, and most journos writing articles about it, have no idea what qualified immunity actually means

    1. I know what qualified immunity means, I also know what absolute immunity means. There’s nothing qualified about the immunity cops are given.

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      2. Well, yes there is. Exhibit A

      3. There’s nothing qualified about the immunity cops are given.
        Because no cop has ever been convicted of a crime.
        Get a clue, you idiot!

        1. No cop has ever been convicted of a crime due to the so-called “qualified” immunity that cops are given. The people calling for the abolition of the so-called “qualified” immunity given to cops who abuse their power are right on their money.

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    4. This is exactly correct. This author and anyone who wants to end qualified immunity is an absolute idiot. QI Does NOT give officers immunity when intentional neglect or intentional violation of someones civil rights. ONLY when the performance of their duty in honest good faith. This anti police ignorance has to stop.

      1. You are sooo wrong!! It protects the most egregious conduct and needs to be gone. Firemen abuse it even more than police do. In many mid sized towns with few fires and union fire departments they have stopped trying to put out serious fires and there is nothing you can do about it when they intentionally sacrifice your property to protect the neighboring properties and to make their job risk free.

        1. rferris
          I didn’t think it was possible, but you’re a bigger idiot than Jerryskids

    5. Congress also has qualified immunity, it’s a privilege they enjoy, it’s not going anywhere. Why do you think they would open themselves up to be held legally liable for their decisions and actions like other public servants?

      1. A great many government officials have it, too.
        Try to sue a parole board member, who let someone out, and then goes ahead and commits more of the crimes they were locked up for.
        Or a judge…

  2. “The Majority of Americans Oppose Qualified Immunity. Where Is Congress?”

    Uh, investigating trump again, and/or fundraising. What else?

    1. What else?

      Enriching themselves at the taxpayers expense?

      1. Did anyone think that there would be actual change on this? Did anyone think that the government was going to give up power or even lessen the tools at it’s enforcement wing’s disposal?

        The only good thing that might come out of all these protests is that nothing happens from the protests and people actually notice. Once people start realizing that “democracy” is a sham – a thin veneer – and we actually have no seat at the table on any matter of real consequence, maybe they’ll stop consenting to being ruled by a criminally incompetent and negligent political class that enjoys god-like powers with zero real accountability.

        1. The people will most likely re-elect the same folks that provide cover for abusive police. Not sure how that is an indictment of democracy or “the system” tho.

    2. Persons who are wronged by agents of Government can sue The associated agency of government. Agents of government enjoy a limited liability to prevent harassment, intimidation or retaliation due to the reasonable performance of their jobs. Columnists for Reason cannot be similarly unseated for publishing thoughtless blather.

    3. Enjoying qualified immunity themselves.

  3. No QI
    No unions
    No records secrecy

    1. No chance

    2. And no civil asset forfeiture

  4. I can’t wait till qi gets pulled. Then people can sue crappy teachers/unions, and the kidnappers in CPS. It will be halarious

    1. Well, Rev, I hope you realize that the “other methods” the defund the police crowd is talking about will look a lot like the average CPS.

      1. Oh lord… You’re right, aren’t you? Maybe pulling QI will help shape them up though?

        Nah, we can’t have nice things.

  5. Congress was impeaching the president for nothing while ignoring a virus from China. Besides what makes you think congress wants to remove immunity once the leftists regain power. They already have a cheering squad in the media and they will need the cops to enforce lockdowns and 2am raids on conservatives and others opposed to their rule. They want a people’s court to order mass executions of dissenters. They will use all the power at hand to suppress any uprising and track all citizens like tagged animals. All this blm antifa bs will disappear once they regain control.

    1. Yeah I’m sure Trump was primed for a brilliant Corona virus response before he had to deal with it.

      1. He imposed travel restrictions from places with the virus.

        The Dems screamed about how racist that was. Then, a few weeks later, they screamed about how he didn’t impose them soon enough, and that he let US citizens and permanent residents come home.

    2. Come on now, Art Kumquat! You blame Congress for ignoring the Covid-19 virus? That’s a ton of BS. You couldn’t be more wrong on this count. It was President Donald Trump who ignored the Covid-19 virus until it was much too late to contain it, and it got out of control, especially here in the United States.

  6. Trump and the Republicans oppose any changes to QI. Therefore anyone who disagrees is leftist scum. That includes leftist Reason and all the leftist staff. You’re with Trump or you hate America. MAGA 2020!

    Was that too much?

    1. You went a little heavy, but close.

    2. If anyone gave a rat’s ass what the majority wanted, Hillary would be struggling to evade responsibility for the Chinese communivirus epidemic and economic depression. The only voters who matter are voters that cast spoiler votes for the fastest-growing non-entrenched party. That got the income tax added in 1894, followed by same damn tax as an amendment and another amendment making beer a felony! “Wasted votes,” the kleptocracy called them, while they hurried to steal those planks and change the laws.

      1. Yes, yes, stolen planks and obscure 19th century references. What we’ve come to expect from you. Plus a fondness for infanticide.

      2. Chinese communivirus?? Even the most craven Trump press secretary couldn’t come up with something so forced and cringey

    3. The majority of Americans oppose defunding the police, as well. Guess those appeals to popularity can’t really be counted on to bring about the Libertarian Moment.

  7. I support qualified immunity for police. Remember, police can face more dangerous incidents in a day than most people deal with in a decade. It’s wrong to hold them to the same standard as the general public. Instead, we must carefully choose people who have high ethnical standards. (Without qualified immunity, only people with nothing to lose will apply for police jobs.) This puts the onus on the voter to keep government limited in its powers. For example, if we end the drug war and war on weapons, and reduce (not abolish) police funding, then this will reduce police abuses. Ultimately the goal is no police, or even any government. Or aren’t you a libertarian after all?

    1. You know who else supported immunity for his police but felt they must be carefully chosen to have high ethnical standards?

      1. Elliott Ness?

      2. Judge Dredd?

    2. Remember, police can face more dangerous incidents in a day than most people deal with in a decade.

      Really? Of the top 25 most dangerous jobs in America, where do police come in on that list?

      1. That wasn’t really his argument. It is a “true” statement that most police can face more dangerous incidents in a day than “most” people deal with in a decade.

        There’s nothing wrong with that statement. Had he said “police work is the most dangerous job on the planet” then we can start pulling out the “ackshyually” card and look at stats.

        1. It is a true statement, as are an infinity of other true statements. But as support for his argument it is flimsy. He’s asserting that it’s on the voter to choose police officers more carefully. But you know as well as I do that’s not the real problem.

          1. I’m not on board with his argument to remove (or not remove, technically) QI from the cops. I just felt you picking out that statement and comparing to the top 25 “most dangerous” jobs was questionable.

            But I need to be clear that I’m not for ending QI against cops merely because I think the job ISN’T that dangerous, but for other reasons not related to the death/injury per hour on the job statistics.

            I think there IS and argument to be made that when we task a specific group of people with the explicit task of running towards danger, that if we subject them to individual liability from the public, that there could be unintended consequences, namely that those people might be reluctant to do what we ask them to do as time goes on.

            But I also think that QI has become a bit of a chimera, diverting attention away from the REAL problem, which is the Pubsec Union issue that diverts accountability away from officers by design.

            1. D’accord

            2. There’s no doubt that ending QI will have an adverse impact on high crime areas that are already underserved. Hopefully the benefits outweigh the costs in the long run. Would be amazing to live in a country that was focused on the corrupt cops running our govt rather than the schupo.

            3. The problem is, Diane Reynolds (Paul.), that Qualified Immunity is all too often given to cops who abuse their power, especially against poor people, and people of color. That is something that has to end!

        2. So do the other more dangerous jobs also get qualified immunity if they get stressed out and do a bad thing?

          1. “ So do the other more dangerous jobs also get qualified immunity if they get stressed out and do a bad thing?”

            That depends, if trees become violent and start shooting loggers then they might, you fucking idiot. When your dealing with the top 1% most aggressive part of the population people are going to be killed. Do you think about this shit you post before you type it out or is ideological possession your form of QI?

      2. According to these ambulance chasers citing a 2013 BLS study, cops are 3rd behind nurses and pet store workers.

        https://workerscompny.com/jobs-with-the-most-injuries/

        1. The completely impartial and not at all political Atlanta Journal Constitution uses this list: (so 16th)
          Here are the 25 most dangerous jobs in America:
          Logging workers
          Fishers and related fishing workers
          Aircraft pilots and flight engineers
          Roofers
          Refuse and recyclable material collectors
          Driver/sales workers and truck drivers
          Farmers, ranchers and other agricultural managers
          Structural iron and steel workers
          First-line supervisors of construction trades and extraction workers
          First-line supervisors of landscaping, lawn service and groundskeeping workers
          Electrical power-line installers and repairers
          Grounds maintenance workers
          Miscellaneous agricultural workers
          Helpers, construction trades
          First-line supervisors of mechanics, installers and repairers
          Police and sheriff’s patrol officers
          Construction laborers
          Maintenance and repair workers, general
          Mining machine operators
          Operation engineers and other construction equipment operators
          Bus and truck mechanics and diesel engine specialists
          Electricians
          Heating, air conditioning, and refrigeration mechanics and installers
          Athletes, coaches, umpires and related workers
          Industrial truck and tractor operators

          1. Cops are always near the top for injuries and 10+ for fatalities. It seems unfair to me to just completely ignore this stuff.

            1. It’s not that it gets ignored per say, but things like that are so vanishingly rare that they disappear when you look at nation wide aggregate numbers. The vast majority (as in upwards of 90%) of police on the job injuries and deaths result from traffic accidents not felonious acts against cops.

          2. Now, subtract all the jobs where accidents kill the practitioners.
            You know, those not injured/killed by people intentionally making the bad things happen to them?

      3. Last I saw on BLS stars it was a round 18th with roofers, loggers, and commercial fishermen in the top five.

        Being a cop CAN be very dangerous, depending on their jurisdiction. But for every cop working the south side of Chicago and leaches like that, there are probably ten cops where it’s like Andy Taylor in Mayberry. Whereas being a roofer, logger, or commercial fisherman is always dangerous.

      4. Well below commercial fishermen, and loggers.

    3. Neither a borrower nor a lender–nor an idiot or an anarchist be.

    4. Let’s give roofers and commercial fishermen carte blanche to beat the shit out of people because they have way more dangerous jobs than cops do.

      1. Oh, come on now! You’re comparing roofers and commercial fishermen with cops? That’s ludicrous! Unlike cops, roofers and commercial fishermen don’t regularly come in contact with criminals, at least not on a regular, everyday ongoing basis.

    5. Before 1982, the police seemed to do fine without qualified immunity as it currently exists. The police need to be able to be sued for breaking the rules outlined in the Constitution in the 4th Amendment.

    6. Roofers face more danger than the police. Oh yeah, I forgot, you’re Mr. Strawman.

  8. A majority of Americans now support police reform measures like chokehold bans,

    Dumb.

    demilitarization of domestic law enforcement,

    Excellent idea, but terms need to be carefully defined.

    and the prioritization of investigating violent crimes instead of misdemeanor offenses.*

    Excellent.

    Created by Harlow v. Fitzgerald (1982), the doctrine has stripped Americans of their right to sue civil servants even in the most egregious of instances.

    By the way, here is the sentence that explains why you will never see the end to Qualified Immunity.

    1. The former vice president has not offered concrete details on how his reforms will distinguish between officials who deserve protection from federal civil lawsuits, but his track record suggests he will go (almost) wherever center-leftists tell him to.

      And that direction will be to keep the discussion about race at the forefront, and nix anything that gets in the way of our union support caged up in a back room, never to see the light of day.

      1. Ding! Winner.

      2. This seems to me exactly wrong. Police reform is on the table now because the Democrats are fully abandoning non-college/ working class constituents in favor of PMC’s and the poor.

    2. In the mostbegregious cases, you can sue cops. Exhibut B
      The problem has been how courts define that

  9. Question for the legal-Eagles, if QI was created in 1982, how were direct civil lawsuits against civil servants handled in December of 1981?

    As skeptical as I am that we’ll see an end to QI, 1981 wasn’t exactly ancient of history

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  11. Braun’s bill is probably the best compromise (especially if it is not limited to only the police but applies to all civil servants). Billy’s assertion that Mr. Federal Crime Bill Dementia Joe will sunset QI is laughable. This, the whole police reform movement, will disappear after November if he wins. And, I doubt he will do anything to fix immigration. These problems are to important as vote getting tools for the Democrats for them to ever do anything (similar to the GOP and small, fiscally sound governance). Expect that the next big deal aboit unarmed black man killed will be in 2022 and the Democrats will blame the Republicans for not compromising. The same with border/immigration.

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  12. In 1969 Texas law made a thimbleful of hemp seeds or roots a hard time felony. After Tricky’s ouster and 48 years of Libertarian spoiler votes cast for repeal platforms Austin just ordered cops to STOP shooting, beating and robbing kids over tiny amounts of plant leaves, roots and seeds. But the JFK order allowing government monopoly goons to form unions to conspire against taxpayers and citizens and piss all over the antitrust laws–THAT thing is gonna have to go!

  13. Where’s Congress? Wherever that sweet, sweet Police Union vote tells them to be.

  14. “So it has always been with tyrants among our own people: when the King was tyrant, let him look out. And it has always been the same, and will be the same, whether the tyrant be the Barons, whether the tyrant be the Church, whether he be demagogue or dictator — let them look out.” ~ Stanley Baldwin

    Immunity for government, or any in government, is antithetical to liberty and mutually exclusive to justice.

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  15. All government employees have basic civil immunity for the actions they take. If your government disability claim is denied, you can’t sue the guy who declined it. If you fail a driving test, you can’t sue the evaluator. If a cop writes you a ticket, you can’t sue him.

    If this qualified immunity is eliminated for police, social justice lawyers will file lawsuits daily until all the police force quits. Nearly all suits will be frivolous but the cops will have to hire a lawyer and spend thousands of dollars and waste many hours to defend themselves. Obnoxious millionaires and lawyers will love threatening cops with lawsuits should they try to arrest them or write them a ticket. Cops will be forced to buy $50,000 annual professional insurance so cities will need to pay them extra for that.

    There are reforms but these require laws to change. Do they really need to arrest and process people with a night in jail for a DUI? Why not just cite them and drive them home? What about limiting drug raids from 10am to 4pm? No one discusses real change.

    1. There was a South Park episode a few years ago that was pretty close to this scenario. Where the cops refused to do their jobs because they were afraid to be fired if anyone non white got hurt.

    2. “Do they really need to arrest and process people with a night in jail for a DUI? Why not just cite them and drive them home?”

      Because the first time the police do this and the still drunk person decides to drink some more at home and then drive their wife’s car and crashes on the highway taking out a family, there will be hell to pay for why this is the policy.

      This is also why police in virtually all parts of the USA have a mandatory arrest policy if they develop probable cause for domestic battery, even though first time domestic battery (without substantial bodily harm or the use of a deadly weapon) is a misdemeanor. They don’t want to cite and leave the abuser with their victim, or even have one of them just leave the house but not arrest the abuser, since there is a non-zero risk of the abuser then further attacking or even murdering the victim. This is also why domestic battery requires a “cool down” period in jail, instead of someone being booked and then almost immediately released on OR or bail, which can happen for most misdemeanors.

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  19. What ever happend to mens rea…..

  20. IDK man, this might be a game changer for me. If trump doesn’t change his mind I might just say fuck it and vote Biden. Seriously, trumps an idiot for allowing this shit to go on. I’ll have to see how much reform actually gets done to see if there’s at least some change. Perhaps it’s likely Biden wouldn’t do shit about it either and eventually outrage will shut it down like what we are seeing with asset forfeiture.

    I’m thinking this country ain’t worth living in anymore.

    1. No cop has ever been convicted of a crime due to the so-called “qualified” immunity that cops are given. The people calling for the abolition of the so-called “qualified” immunity given to cops who abuse their power are right on their money.

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  22. Most appropriate at this time would be a total elimination of any immunity, qualified or otherwise, being afforded to dangerous and harmful elected officials such as those in Portland, Seattle, Chicago, and New York.

  23. I contacted my Representative asking if he’d support removing qualified immunity from legislators as well. I got a letter thanking me for my input, and went on to tell me what a great job he’s doing .

    So much for honesty in government.

  24. I am all for ending QI when we end nuisance law suits. Thats where the problem lies. Before the police had QI you also couldn’t sue people for everything. Make it so the lawsuits against law enforcement are actually legit and not, he gave me a ticket and I missed an expensive concert and I am all for this.

    Sadly you and I both know that’s not going to happen. People will continue to sue for meaningless things and we co tinuw go allow it.

  25. Issues like reforming Qualified Immunity would never get over the blustering demagogue hurdle. Meaning that when Amash (who’s quitting, because of the impossibility of work like this) tries to make thoughtful changes he’ll be crushed by those (like Hannity/Limbaugh/Trump) who see ratings wins in showering love on our militarized police. The Trump clowns will start with “America will always support our great, great men in blue!” and “Our brave, brave police put their lives on the line every day. They need every weapon available to protect real Americans from thugs and carnage.” You know the Frank Luntz word-smithing drill, you could write these in your sleep. Thoughtful Congresspeople seeking legitimate reform will be crushed by the demagoguery.

  26. There is a legitimate purpose for Qualified Immunity. If a police officer acting under his legitimate authority and within department policy, does something that causes harm to another person, then they cannot be personally sued. If QI is being abused to protect officers who are violating both policies and laws and going against recognized training and tactics, that’s a different matter. Address that issue. This isn’t a popularity contest where people who have little concept of what QI is get to decide if it exists or not.

  27. Reform, not eliminate, QI.

    Cops have to know that charges which are obvious BS won’t go anywhere.

    Citizens have to know that if they have a legitimate grief, it will be given proper attention.

  28. Where is Congress on this Qualified Immunity business? Might they be hiding behind it?

  29. “Where is Congress”? Answer: The same place it is on extension of DACA, Trump’s wall, Obamacare; the same place it was on Merrick Garland’s SCOTUS nomination, LGBTQ rights.

  30. You have a job as a cop. You no longer have qualified immunity which means that you can be sued by anyone who you happen to piss off in the process of doing your job. And it is inevitable, even if you are the most wise, judicious and tolerant person alive, that you will piss off someone, if not several people almost every time you enforce some law. While such lawsuits may not have any particular merit, it will be your personal responsibility to respond to each and every one. This means one thing. You will not do this job. Nobody would. Now, if you are a truly committed Libertarian, I suppose that this will be seen as the whole point.

  31. A sheriff or police chief has to make the decision to not hold his own officers accountable. Here is a sheriff that will hold all duties 100% accountable mclynasforsheriff.com

  32. OMG!!!! Don’t you get any rational Libertarians that write for this magazine. First you can make a poll come out anyway you want, not to mention most people probably don’t even understand what qualified immunity means or give much thought to what the consequences of removing the liability protection from police officers would mean. People probably think the officer that killed Floyd would be not found guilty due to qualified immunity, but that is not what qualified immunity means.

    There is a reason businesses become corporation.s It is to get liability protection.

    Do you even understand what police do. I swear you need to get out of your cushy desk job and go in a patrol car with actual cops.

    You would have every criminal arrested and maybe opens just stopped suing the police and there would be no shortage of clueless socialist lawyers to file the claims. So now the policeman’s personal belong like his house is on the line every time he makes an arrest.

    Tell me who do you think would take such a job dangerous job arresting criminals if their lively hood is on the line ???? Anybody suggesting this is completely clues!!!!

    Here is what you could do. End or reduce the power of public unions, so you can actual fire bad cops and allow people to sue the city.

    BTW, maybe you should allow people to sue the Mayor also. I think the Mayor of Seattle and Portland would be in court 365 days a year.

  33. Since the author expresses dismay that the congress is out of touch with the will of the people, I would ask, “What fucking congress are you talking about? The US Congress hasn’t given a shit about anyone but themselves for a very long time now.”

    Unless your vote comes with a million-dollar campaign donation, you can wipe your ass with the ballot.

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  35. The Majority of Americans Oppose Qualified Immunity. Where Is Congress?

    That’s “libertarianism” at Reason for you: “the majority should get what the majority wants” and “policing should be a federal matter”.

  36. A lot of commenters here, do not understand qualified immunity and its application in actual defense of lawsuits. The standard used in the “qualified” part are so liberally applied, that just about anything is qualified for immunity.
    Even without QI, police have a proper defense IF what they did falls within their legal discretion to do it. Such defense is as good as QI, the difference is that the discretionary defense is applicable only if they had legal authority to do what they did.
    And that is all an officer should have as a defense, no more.

  37. Most appropriate at this time would be a total elimination of any immunity, qualified or otherwise, being afforded to dangerous and harmful elected officials such as those in Portland, Seattle, Chicago, and New York
    Daily Horoscope Today July 25

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