Are you pulling my leg?
I have posted a very general outline, leaving out the details of all possibilities, but yes that’s exactly how a lawsuit works.
How do you think it works?
True, but that is just a legal fiction. Government agencies have insurance policies which pay for damages against their employees in all but the most egregious intentional cases. Officer Smith doesn’t lose his house, the department’s insurance company pays the settlement.
Note that the plaintiffs here are asking for injunctive relief, asking the court to prohibit X from happening in the future. Injunctive relief is not subject to qualified immunity as no money changes hands. That would then make X “clearly established law” so that money damages would be available for repeat behavior.
I share your disagreement with the scope of qualified immunity, and it prevents many good cases from being filed as most people cannot afford an attorney and no attorney will take an injunctive relief only case on a contingency because, by definition, there is no fee that will be paid.
But this being GQ, this case will be heard and if the courts find that the White House actions here were a violation of Constitutional rights, there will be a redress in the form that they will not be permitted to do the same thing again.
Please provide a citation for the proposition that U.S. government agencies have insurance policies that pay for damages awarded under 42 U.S.C. § 1985, and 42 U.S.C. §1986. I have never before heard of such policies and I will just say that I have good reason to be aware of them.
At least, a court will tell them they are not permitted to do the same thing again. Of course, that will only happen if the law already told them they couldn’t do that thing in the first place, which obviously didn’t stop them the first time.
Here is an insurance company talking about the various policies.
Rule #1 of being a plaintiff’s lawyer: Never file a suit unless there is a deep pocket. There would be no reason to sue an officer making $30k/yr with no assets. You would just get an uncollectible judgment.
- If the law already said that they could not do that, and said it clearly, then they are not protected by qualified immunity and you can get money damages. If the law didn’t clearly say that, but new law is made by the injunction, then you don’t get money, get an injunction, and will get money next time.
The criticism of qualified immunity is that courts have a very restrictive definition of what “clearly established law” means such that the slightest fact difference in cases can make this new case “different.”
But to add, “U.S. government agencies” are not covered by 1983 et seq. Those are suits against persons acting under color of state law.
There are so called Bivens claims against federal officers.
Its the ACLU and like organizations, not some random plaintiff’s attorney looking for a payout.
Are you making a point about federal agencies? Because my understanding, for example, is that here in Virginia there’s a state agency (the Division of Risk Management) that has policies that defend and indemnify various local police officers (or, at least, did five years ago, which was the last time I dealt with them). I don’t think that’s uncommon.
I work with a lot of federal law enforcement and I’ve never asked them, but I always assumed that the agency provided similar liability insurance.
Yeah, civil rights/constitutional cases aren’t necessarily about getting cash. They’re about setting legal precedent.
I agree, and that’s why they took this case. The typical case does not get the attention of the ACLU. A plaintiff would love that because of the resources they bring to the table. But most plaintiffs, not having money, need to convince an attorney that there is money damages at the end of the rainbow to get paid. Injunctive relief does not pay.
That’s where qualified immunity, and we are in GQ, is criticized by some as being too harsh. As the case is never brought, no new law is made, thereby not qualifying as “clearly established law” for the next case.
Yes, almost every government employee is covered by similar liability insurance. The key is that these policies typically don’t pay for “intentional acts” that are “outside the scope of employment.”
It creates a rather silly situation where a plaintiff argues that an officer “recklessly” or “negligently” violated constitutional rights instead of intentionally which is what he did.
The defendants will argue that beating a suspect is not within the scope of an officer’s employment but the plaintiff will argue that the arrest was and that the method of conducting the arrest is within the scope of employment.
It’s a silly little side issue that I’ve always hated. Further, the older people in the profession are adamant that you do not go after personal assets or “blood money” as it is called. Don’t take someone’s house. If there is no insurance coverage, don’t sue. I don’t necessary agree with that depending on the circumstances, but its there.
They said exactly the same thing about Parliament Square in London, right before Boris Johnson succeeded in banning public protests there a few years ago.
There’s a difference between closing a place for protests in the future and attacking protesters who are already there.
Also, the “public square” is a constitutional law concept related to first amendment jurisprudence. The government is not allowed to ban free speech, especially political speech, in certain areas.
How is it a “grey area”? Public property is where speech rights are most protected by the First Amendment (aside from the speaker’s own property).
Counter sue who? For what?
John Oliver has some examples of this in his latest episode of Last Week Tonight.
“Slightest fact difference” barely covers how ridiculously close two cases have to be (see link I just provided). It is to the point of absurdity. So much so that it is nearly impossible to say two cases are “exactly” alike enough for these legal purposes if the court doesn’t want them to be.