The 5th circuit’s logic creates a feedback loop, which Sotomayor referenced in her dissenting opinion. Officials can arrest someone for protected activity, decline to appeal a trial court’s decision declaring the statute unconstitutional(so no precedent is created), and then use qualified immunity to avoid liability by citing back to that statute. That creates a mechanism for penalty free retaliation against journalists.
Qualified immunity requires that a right be “clearly established” for officers to be held liable. But when a law has never been enforced, there’s by definition no case law saying enforcement would be unconstitutional. So the first person targeted under any dormant or unconstitutional statute has no remedy.
The 5th Circuit reasoning that the journalist “benefited” through minor advertising revenue and free meals from readers is exceptionally weak and implies that journalism done for any compensation, weakens 1st amendment protections.
I don't think Sotomayor's dissent is particularly convincing because you need a new law that hasn't been yet been invalidated for each instance of retaliation against journalists or general 1A violations. And plugging this loophole with QI would put police in a weird situation where they're having to best guess based on some legal test if a law is constitutional or else open themselves to a lawsuit. I would be happy if this loophole could be plugged cleanly but I think the harm is theoretical enough that the 5th circuit's ruling is acceptable. I would rather a streamlined system to strike these laws down without needing to have them be enforced first rather than messing with QI. Then the ACLU and the likes can file a bunch of lawsuits making the QI issue moot as they'll already be declared unconstitutional before they're ever used.
>Officials can arrest someone for protected activity, decline to appeal a trial court’s decision declaring the statute unconstitutional(so no precedent is created), and then use qualified immunity to avoid liability by citing back to that statute. That creates a mechanism for penalty free retaliation against journalists.
...Uh... From my understanding, a court declaring a statute unconstitutional basically makes the statute in question retroactively never a law. That kind of determination absolutely creates precedent. Precedent isn't something that only happens once you hit the Supreme Court. This may be me quibbling on your choice of words, but if a court rules an application of a statute unconstitutional, then the specific details might be ruled out by precedent, but the statute may still stand. In that case Sotomayor is right. Qualified Immunity basically gives the Executive one reusable get out of jail free card.
Note though, qualified immunity is a recent thing, and there are laws on the books criminalizing deprivation of constitutional rights under color of law. I.e., officials using their position to do unconstitutional shit used to actually be a cause for action all it's own. Now, why we don't use it more, that's a lawyer question. I'm just an idiot who read a legal research book once.
> ..Uh... From my understanding, a court declaring a statute unconstitutional basically makes the statute in question retroactively never a law.
It's not that simple. Even decisions on constitutionality do not always have retroactive effect, especially in criminal law where the court has an excessive fear of prisoners swamping the legal system with appeals and petitions.
> Precedent isn't something that only happens once you hit the Supreme Court.
No, but binding precedent is something only appellate courts can set, not trial courts, and it only binds courts under their jurisdiction. As a practical matter, overcoming qualified immunity at a minimum requires binding precedent, though theoretically it doesn't require any court precedent at all.
> Qualified Immunity basically gives the Executive one reusable get out of jail free card.
Qualified Immunity sets a very high bar. For one thing, it requires precedent to be "clearly established". Individual binding appellate decisions do not necessarily (or even usually) meet that bar, even with cases with identical facts in the same jurisdiction. Moreover, the officer must have "fair notice", meaning that even when the precedent is clear, if it's case law that doesn't get much media buzz or discussion among officers, qualified immunity might still apply. Generally speaking, it's really only SCOTUS cases, given their nationwide jurisdiction and high profile, that reliably clear the bar, but even then not always.
> Now, why we don't use it more, that's a lawyer question. I'm just an idiot who read a legal research book once.
You're probably thinking of 42 U.S. Code § 1983 civil actions. This was a Civil War Reconstruction statute that permits people to sue state officers, overriding state laws protecting them from suit. But it doesn't permit people to sue federal officers. There are various federal statutes granting rights to sue federal officers, but they're much more restrictive and narrower. In fact, in most of the recent ICE cases, I don't think the question of Qualified Immunity even arises; the relevant federal statutes either don't grant a right to sue ICE officers, or don't grant the right to sue them for the particular violations that occur. IIRC, most of these broader federal claims statutes only permit suits for property damage, etc, not for violations of civil liberties.
The lack of an uproar about this from the "free speech" crowd that came down with a fury whenever it was "woke" that forbid speech, tells us it was never about free speech at all. It was misogyny and bigotry and some of those might not even be aware of that.
Free speech in the US is way worse now than it has been before Trump and it needs to be defended.
The 5th circuit’s logic creates a feedback loop, which Sotomayor referenced in her dissenting opinion. Officials can arrest someone for protected activity, decline to appeal a trial court’s decision declaring the statute unconstitutional(so no precedent is created), and then use qualified immunity to avoid liability by citing back to that statute. That creates a mechanism for penalty free retaliation against journalists.
Qualified immunity requires that a right be “clearly established” for officers to be held liable. But when a law has never been enforced, there’s by definition no case law saying enforcement would be unconstitutional. So the first person targeted under any dormant or unconstitutional statute has no remedy.
The 5th Circuit reasoning that the journalist “benefited” through minor advertising revenue and free meals from readers is exceptionally weak and implies that journalism done for any compensation, weakens 1st amendment protections.
I don't think Sotomayor's dissent is particularly convincing because you need a new law that hasn't been yet been invalidated for each instance of retaliation against journalists or general 1A violations. And plugging this loophole with QI would put police in a weird situation where they're having to best guess based on some legal test if a law is constitutional or else open themselves to a lawsuit. I would be happy if this loophole could be plugged cleanly but I think the harm is theoretical enough that the 5th circuit's ruling is acceptable. I would rather a streamlined system to strike these laws down without needing to have them be enforced first rather than messing with QI. Then the ACLU and the likes can file a bunch of lawsuits making the QI issue moot as they'll already be declared unconstitutional before they're ever used.
>Officials can arrest someone for protected activity, decline to appeal a trial court’s decision declaring the statute unconstitutional(so no precedent is created), and then use qualified immunity to avoid liability by citing back to that statute. That creates a mechanism for penalty free retaliation against journalists.
...Uh... From my understanding, a court declaring a statute unconstitutional basically makes the statute in question retroactively never a law. That kind of determination absolutely creates precedent. Precedent isn't something that only happens once you hit the Supreme Court. This may be me quibbling on your choice of words, but if a court rules an application of a statute unconstitutional, then the specific details might be ruled out by precedent, but the statute may still stand. In that case Sotomayor is right. Qualified Immunity basically gives the Executive one reusable get out of jail free card.
Note though, qualified immunity is a recent thing, and there are laws on the books criminalizing deprivation of constitutional rights under color of law. I.e., officials using their position to do unconstitutional shit used to actually be a cause for action all it's own. Now, why we don't use it more, that's a lawyer question. I'm just an idiot who read a legal research book once.
> ..Uh... From my understanding, a court declaring a statute unconstitutional basically makes the statute in question retroactively never a law.
It's not that simple. Even decisions on constitutionality do not always have retroactive effect, especially in criminal law where the court has an excessive fear of prisoners swamping the legal system with appeals and petitions.
> Precedent isn't something that only happens once you hit the Supreme Court.
No, but binding precedent is something only appellate courts can set, not trial courts, and it only binds courts under their jurisdiction. As a practical matter, overcoming qualified immunity at a minimum requires binding precedent, though theoretically it doesn't require any court precedent at all.
> Qualified Immunity basically gives the Executive one reusable get out of jail free card.
Qualified Immunity sets a very high bar. For one thing, it requires precedent to be "clearly established". Individual binding appellate decisions do not necessarily (or even usually) meet that bar, even with cases with identical facts in the same jurisdiction. Moreover, the officer must have "fair notice", meaning that even when the precedent is clear, if it's case law that doesn't get much media buzz or discussion among officers, qualified immunity might still apply. Generally speaking, it's really only SCOTUS cases, given their nationwide jurisdiction and high profile, that reliably clear the bar, but even then not always.
> Now, why we don't use it more, that's a lawyer question. I'm just an idiot who read a legal research book once.
You're probably thinking of 42 U.S. Code § 1983 civil actions. This was a Civil War Reconstruction statute that permits people to sue state officers, overriding state laws protecting them from suit. But it doesn't permit people to sue federal officers. There are various federal statutes granting rights to sue federal officers, but they're much more restrictive and narrower. In fact, in most of the recent ICE cases, I don't think the question of Qualified Immunity even arises; the relevant federal statutes either don't grant a right to sue ICE officers, or don't grant the right to sue them for the particular violations that occur. IIRC, most of these broader federal claims statutes only permit suits for property damage, etc, not for violations of civil liberties.
The lack of an uproar about this from the "free speech" crowd that came down with a fury whenever it was "woke" that forbid speech, tells us it was never about free speech at all. It was misogyny and bigotry and some of those might not even be aware of that.
Free speech in the US is way worse now than it has been before Trump and it needs to be defended.