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Soccerdad1995 wrote: ↑Sat Jan 14, 2023 1:04 pm

srothstein wrote: ↑Fri Jan 13, 2023 10:05 pm

Soccerdad1995 wrote: ↑Fri Jan 13, 2023 1:05 pmSo to further my hypothetical, let's say that a new resident moves into town and mentions to someone that they did, in fact, vote for Biden in the last Presidential election. They are immediately arrested, and imprisoned until their case is heard. Since they obviously violated the law, as written, presumably a defense would be that the law is unconstitutional. Eventually the person is freed, possibly after weeks or months of incarceration, and the law effectively becomes moot (although it may still be on the books).

My understanding from your post is that the LEO's involved have immunity since the law was presumed to be constitutional before it was ruled on by the court. Would the person who was charged here have any recourse against the local government or are they just out of luck?

In the military, I was taught that I would be held accountable if I followed an order that I should have known to be illegal (the prinicipal which came into play during prosecution of the My Lai massacre, and also during the Nuremberg trials). It sounds like that same principal does not hold in the case of unconstitutional laws within the U.S.

I was taught this principle also, and was taught that it is also true for civilian police. Unfortunately, SCOTUS has changed this while at the same time establishing it firmly. The trick to the immunity is not the moral definition of right or wrong, but the legal definition of "should have known it was illegal". SCOTUS established qualified immunity in 1967 as a way to protect police from the quandary of making an illegal arrest or being fired for dereliction of duty. It was intended as a good thing to help cops do their job in the then expanding legal world of what a person's civil rights were. But in 1982, they created the current legal definition as "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known". That sounds good as a rule, but they have since defined "clearly established" as something that has been ruled on by the courts in a very similar case.

So the current status is that a person can only sue if the cop is breaking a rule already established by the courts as violating a person's rights. So if no cops had ever been sued for this type of case anywhere in the US, then the court presumes that it is not generally known and the cop has immunity. The cops could not claim they were unaware if the other law had been against Republicans and this one against Democrats, but it has to be about that similar a case.

And this is why so many people are upset at qualified immunity. They have valid points against it. Qualified immunity is a necessary thing for cops to be able to work, but it has gotten out of hand and needs to be reformed. And since courts created it, not law, I don't know if the legislative branch can change it.

Thank you for the great explanation on this.

And count me in as one who agrees that this needs to be reformed.