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Opinion from a Libertarian ViewPoint

Opinion | The Supreme Court has abdicated its duty to the Bill of Rights – The Washington Post

Posted by M. C. on November 7, 2021

https://www.washingtonpost.com/opinions/2021/11/04/supreme-court-qualified-immunity-frasier-evans/

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By Radley Balko

The Supreme Court, having created the problem of qualified immunity to shield police from being held liable for their misconduct, keeps refusing to fix it.

This week, the court declined to review an especially outrageous ruling by the U.S. Court of Appeals for the 10th Circuit involving a Denver man who was detained for recording a traffic stop, then had his computer confiscated and searched.Opinions to start the day, in your inbox. Sign up.

No one doubts the man, Levi Frasier, had the right to record the stop. To date, six federal appeals courts have ruled there is a constitutional right to record police officers in public, a sentiment shared by the overwhelming majority of constitutional scholars. No federal appeals court has ruled the other way. In fact, the law is so well established that the officers in Denver were trained that citizens have such a right, and to respect it.

Yet the 10th Circuit ruled that because that circuit had yet to rule on the matter, the right was not yet “clearly established.” In a truly remarkable sentence, the court added, “It is therefore ‘irrelevant’ whether each officer defendant actually believed — or even in some sense knew — that his conduct violated . . . the First Amendment.”

In my last column, I looked at the origins of qualified immunity, the court-created doctrine that makes it extremely difficult to sue police officers for abuse and other constitutional violations. As I previously pointed out, legal scholars generally point to 1967′s Pierson v. Ray as the court’s first major decision affording protection to law enforcement (and other government officials) from civil liability for constitutional violations, so long as the violations were in good faith.

But that decision required courts (or juries) to determine the state of mind of the officers accused, always a difficult thing to discern. So in 1982, the court revised the policy and created qualified immunity as we know it today. To successfully sue a police officer, a plaintiff must pass a two-prong test, showing that: (A) the police violated the plaintiff’s constitutional rights, and (B) a reasonable person should have known the officers’ actions were unconstitutional under “clearly established” law.

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