I'd love to see what #appellatetwitter thinks about this:
While qualified immunity is a shield against liability for past unconstitutional conduct, the neutering of Bivens is--on top of that--a license for federal officials to act unconstitutionally in the future. /1
While qualified immunity is a shield against liability for past unconstitutional conduct, the neutering of Bivens is--on top of that--a license for federal officials to act unconstitutionally in the future. /1
Qualified immunity is terrible because if we say people have certain civil and constitutional rights we must allow them to hold people accountable when those rights are violated. /2
Under QI, courts frequently dismiss a person's claim even when they find that the person's rights were violated on the grounds that the right wasn't "clearly established" at the time of the wrongful conduct.
In theory, such a finding should put future state actors on notice. /3
In theory, such a finding should put future state actors on notice. /3
It's my impression that theory doesn't always pan out, because later courts nitpick and describe previous court rulings in such fact-specific ways that they create the appearance that the right wasn't actually "clearly established" at the time of the violation. @RMFifthCircuit /4
But at least the idea there is that civil and constitutional rights have meaning and that violations won't go unpunished once those rights are clear.
The immunity conferred by the Supreme Court's decimation of Bivens is far more nefarious. /5
The immunity conferred by the Supreme Court's decimation of Bivens is far more nefarious. /5
The Supreme Court in Hernandez v. Mesa justified its holding that a Border Patrol agent couldn't be held individually liable for shooting & killing a Mexican teenager on the other side of the US-MS border on the grounds that cross-border shootings are a new context for Bivens. /6
But unlike a case involving #QualifiedImmunity, that doesn't mean the next time it happens a prospective plaintiff will be able to point to the Hernandez v. Mesa ruling to say the issue is now "clearly established" and individual liability for the agent should attach. /7
Instead, the next time it happens a Border Patrol agent who unconstitutionally shoots and kills a Mexican national standing in Mexico will be able to point to the ruling as clearly establishing that he *cannot* be sued in his individual capacity. insidesources.com/five-conservat… /8
So the narrowing of Bivens not only allowed agent Mesa to use the doctrine as a shield against liability for killing 15-year-old Sergio Adrián Hernández Güereca, but it also allows future agents to violate people's rights knowing in advance they will be free from liability. /9
No conversation about ending #QualifiedImmunity and standing up for justice and accountability is complete if it doesn't involve a conversation about creating a strong and clear statutory cause of action against federal officials who violate civil & constitutional rights. /10
