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"Qualified Immunity" Strikes Again

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Thomas Knapp
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Panorama of United States Supreme Court Building at Dusk.
Panorama of United States Supreme Court Building at Dusk.
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Over the last few decades, we've seen numerous bad actors escape punishment for their bad acts -- ranging from theft to sexual misconduct to summary execution -- for no better reason than that they were government employees, under the doctrine of "qualified immunity."

Now the US Supreme Court appears to have dropped the "qualified" part in favor of just plain immunity, full stop.

On February 21, the court rejected an appeal from Anthony Novak, who was arrested and jailed for four days in 2016, before being acquitted on a charge of "disruption of police operations."

Novak subsequently sued for damages, and his case seemed airtight: The supposed "disruption" consisted of a Facebook page parodying the Parma, Ohio police department.

The "qualification" for immunity claims, per the Supreme Court's 1982 ruling in Harlow v. Fitzgerald, is that a government employee's conduct must not "not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Like, for example, the rights to free speech and freedom of the press enshrined in the First Amendment to the US Constitution.

A "reasonable person" -- in particular a "reasonable cop" from Ohio, where high school students must complete a semester of coursework on "US government," and where police officers are required by law to swear or affirm that they will "support the Constitution and Laws of the United States of America" -- couldn't have missed knowing about those clearly established constitutional rights.

Parma police officers Kevin Riley and Thomas Connor had no plausible claim of confusion as to whether they were violating Anthony Novak's rights when they arrested him for saying things they didn't like.

The immunity they've been granted first by a federal judge, then by the Sixth US Circuit Court of Appeals, and now by the US Supreme Court, isn't "qualified." It's just a free pass for people with badges.

Come to think of it, why should such people receive any immunity at all, "qualified" or otherwise, for committing crimes?

Ignorance of the law is no excuse, right? I'm sure I've heard that somewhere. "But Your Honor, how was I to know bank robbery was illegal?" won't likely bring a judge down on your side of things.

The people who make their livings enforcing the laws should be held to a higher standard, not a lower standard -- and certainly shouldn't be allowed to play a get out of jail free card -- when they violate those laws.

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Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.


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