Your last statement is correct. They are just emboldened by the current political environment. Any law enforcement has a problem where all they see is criminals all day everyday, now we know they aren't always criminals, but that's their view point. There should be sufficient checks and balances to ensure that due process is still upheld. What we're seeing now is the lack of checks because law enforcement feels they will never be held accountable for violating due process. This, while likely not a direct order of the president, it is an environment that his rhetoric has fostered. Even in the cases where the supreme court has said, unanimously, that people have been deported improperly this environment causes those in positions to correct it to ignore the courts.
I support the general idea of expedited deportation of those here illegally, those without valid documents to be here, I don't automatically have a problem if there is greater restrictions on entering or issuing new visas, but I have a major problem with violating due process and these kind of mistakes that's are a result of lack of due diligence.
The courts need to get more heavily involved here. It's easy to blame the president but short of some directive telling people to violate the law the blame is misdirected (until it's election time). The blame needs to be on those individuals doing this thing or seeing it and ignoring it. This is where the courts need to totally strip away default qualified immunity, especially for immigration officers. Because qualified immunity allows them to just say they were following orders without them having to evaluate if what they are doing is legal or not.
I believe if qualified immunity was gone a lot of this nonsense would stop. They would make sure that anyone who was deported was meant to be deported.
I have a friend who is here legally awaiting an asylum hearing, been waiting for 5 years. They were stopped by police for a valid reason and, from what was described the police had probable cause, but the charge itself is very minor. Because she's documented waiting asylum they contacted immigration, for no reason. There was no probable cause to think she was in violation of her immigration status, but they still contacted them and they requested she be held. So now she detained and there's probable cause to do so but it's immigration so they can.
This is where no qualified immunity would make these officers think twice. They know they have no probable cause to continue to hold her beyond the initial charge. Without qualified immunity they would understand that continuing to hold someone after a judge has allowed their release means that they would lose their house their life their future. So I really think we need to end to qualified immunity across the board. Have the people who are supposed to protect us and be responsible for their actions.
Without qualified immunity, no one in their right mind would want to work in law enforcement. LE would become an easy target for malicious litigation where the cost/effort to defend would, itself, be the weapon, regardless of whether or not the lawsuits were won.
LE personnel would have to get insurance, like doctors, which would be crazy expensive and, considering their pay scale, unaffordable.
I don't like some of the implications of qualified immunity, but I understand why it's there and needed.
I think the only real solution to LE abuses is criminal accountability and prosecution. We already have the laws and processes in place to make that happen. It's hindered by the tribal nature of the human condition and I'm not sure you get around that very easily, at least, not at scale.
"Qualified Immunity" comes from the fact Americans have independent judicial branch and can directly bring law enforcement into that judiciary. In most countries, any action against law enforcement for their official duties is limited to government/department so they have large scale defense anyways.
> LE personnel would have to get insurance, like doctors, which would be crazy expensive and, considering their pay scale, unaffordable.
So pay would have to go up?
There'd probably also have to be something where if they were following department policy, then the officer (well, their insurance) can turn around and demand reimbursement from the department.
Qualified immunity, as it is today, is far too broad. Because literally any action that an officer takes that has not been specifically ruled on by the courts is a defaulted as being immune to prosecution. Even when that officer is knowingly violating department policy even when they're reasonably aware they are a violating the law. They still retain qualified immunity.
It's nice to live in that dreamland that we can resort to criminal prosecutions for officers who violate the law that does not happen as often as it should. As part of their job, what they are trained to do, is to be able to evaluate a reasonable suspicion and probable cause. Yet you regularly see officers violate those standards with impunity. The problem is when someone violates your rights by arresting you without sufficient probable cause there is nearly no recourse for the average person.
If immigration took you and held you for 2 weeks, how disruptive would that be to your life? Would you lose your house, your job, more than that? If it was found that they had no probable cause to for an arrest what realistic legal recourse do you have, and how many years would it take for that recourse?
So if you want to maintain qualified immunity because you believe it's a requirement for these people to do their jobs then where is the balance to that? Because right now there is no balance. If you don't want officers to be held directly responsible or to have to pay for expensive insurance policies somebody needs to pay because without a financial incentive things don't change. What about something that puts a strict financial incentive on getting things right at the first time. Obviously this would be a burden that the taxpayers share but when the taxpayers realize they're shelling out money for people who are not diligent in their work that will change very quickly. If someone is arrested and the courts find there was no probable cause for the arrest. How about $10,000 a day for every day that that person was held. That puts a meaningful financial burden on getting it right. Because then it becomes readily apparent which officers are problematic and which ones are not.
The situation we're in right now is not working and there doesn't seem to be any plans to fix it. Because literally my friend where there is no probable cause for them to be arrested and held by immigration is being held by immigration. Like most people they live month to month. So if they're not working nobody pays their bills nobody pays for their apartment. If they're held for 2 weeks or a month or God forbid even longer before they're let go where is the actual financial recourse because they lost everything in their life? Because your suggestion doesn't solve for that problem and provides no incentive for immigration to follow the laws or even follow the courts.
Because the interesting thing is with the original arrest they would have been released the next day on their own recognizance. Police that do not care about the constitutions or due process or the rights of individuals proactively contacted immigration and immigration requested that she be turned over to them. No reason given and there's no reason for the police to have suspected that a person with all the proper documentation and identification is in violation of any federal immigration law. So tell me honestly what is your solution if it's not to strip away qualified immunity and if it's not to place a heavy financial burden on these agencies in some way that directs back to the individuals that are willfully violating people's rights?
I completely disagree. It still blows my mind that Law Enforcement Officers are the only group of people for whom ignorance of the law is an acceptable defense.
I support the general idea of expedited deportation of those here illegally, those without valid documents to be here, I don't automatically have a problem if there is greater restrictions on entering or issuing new visas, but I have a major problem with violating due process and these kind of mistakes that's are a result of lack of due diligence.
The courts need to get more heavily involved here. It's easy to blame the president but short of some directive telling people to violate the law the blame is misdirected (until it's election time). The blame needs to be on those individuals doing this thing or seeing it and ignoring it. This is where the courts need to totally strip away default qualified immunity, especially for immigration officers. Because qualified immunity allows them to just say they were following orders without them having to evaluate if what they are doing is legal or not.
I believe if qualified immunity was gone a lot of this nonsense would stop. They would make sure that anyone who was deported was meant to be deported.
I have a friend who is here legally awaiting an asylum hearing, been waiting for 5 years. They were stopped by police for a valid reason and, from what was described the police had probable cause, but the charge itself is very minor. Because she's documented waiting asylum they contacted immigration, for no reason. There was no probable cause to think she was in violation of her immigration status, but they still contacted them and they requested she be held. So now she detained and there's probable cause to do so but it's immigration so they can.
This is where no qualified immunity would make these officers think twice. They know they have no probable cause to continue to hold her beyond the initial charge. Without qualified immunity they would understand that continuing to hold someone after a judge has allowed their release means that they would lose their house their life their future. So I really think we need to end to qualified immunity across the board. Have the people who are supposed to protect us and be responsible for their actions.