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During the Bush '43 administration, a very important official, the Dep. National Security Advisor Jim Jeffrey attended boring municipal jury duty in Washington DC. He took off work from an important civil servant job.
The Supreme Court is of the view that civil servants should not have to be burdened by such multi-tasking. They literally refer to it as a "burden" to go to court, or face civil rights charges, etc, etc.
So SCOTUS created a new doctrine out of thin air: Qualified Immunity to protect civil servants from all the burdens that we normies face in society. Specifically, we cannot hold civil servants accountable for civil rights violations because...well...they busy.
What this means for Jim Jeffrey. Even appearing at court to face charges if Jeffrey himself had shot a man 7 times on Pennsylvania Avenue would be a "burden" under current jurisprudence. Why? because Jeffrey, as deputy national security advisor had a very busy job.
There's just one problem: the empirics. The Supreme Court does not actually tell us what these "burdens" are. Further, SCOTUS can't even confirm that the sweeping Qualified Immunity actually reduces "burdens." Just ask Professor Joanna Schwartz at UCLA Law here @JCSchwartzProf
Schwartz actually examined the burdens, and examined the high court's decisions for evidence that any judges had interrogated this "burdens" idea. What did she find? Bupkis. https://www.yalelawjournal.org/article/how-qualified-immunity-fails
Be you a cop or a deputy national security advisor, depriving other citizens of civil rights in our civil rights laws should not be okay - even though you busy.
But as it stands, under qualified immunity, murder and torture are, practically, legal for civil servants.
One need only be very innovative in one's torture. So you can get in trouble for curb stomping someone in the 6th Circuit if it's "clearly established" there, but not in say the 5th circuit were such crimes are new things in the region - hypothetical.
The "clearly established" legal standard has meant, in real life, that you only get in trouble for torturing someone if you do it in a boring way that's already covered by precedent (copy cats beware).
(1 of 5 examples) A Texas man’s civil rights were violated by civil servants (judges found) when guards held him in a feces-covered jail cell without bedding (pre-trial)
however, the judges denounced the behavior while also invoking qualified immunity. Reasoning: it is not yet clearly established within 5th circuit case law that the behavior (holding someone in an excrement-covered jail cell surrounded by sewage) is a civil rights violation.
(2 of 5 examples) A Michigan man’s civil rights were violated by civil servants (judges found) when Ferndale police officers shot him three times in the back, killing him; however, the judges denounced the behavior while also invoking qualified immunity.
Reasoning: it was not yet clearly established within the 6th circuit case law that the behavior (shooting someone in the back killing him) is a civil rights violation.
(3 of 5 examples) A Georgia child’s (10 year old) civil rights were violated by civil servants (judges found) when Coffee County sherrifs shot him in the knee, injuring him; however, the judges denounced the behavior while also invoking qualified immunity.
Reasoning: it was not yet clearly established within the 11th circuit case law that the behavior (shooting a child in the knee) is a civil rights violation.
(4 of 5 examples) An Arizona girl’s (13 year old) civil rights were violated by civil servants (judges found) when school district officials strip-searched her (no parents consented, no pills found) while they searched school-wide for forbidden over-the-counter ibuprofen pills.
However, the judges denounced the strip search behavior while also invoking qualified immunity. Reasoning: it is not yet clearly established within the 9th circuit case law that a school district violates one’s rights by strip searching a middle school girl.
SCOTUS ultimately overturned that ruling narrowly, but (unfortunately) overturned it without challenging the doctrine of qualified immunity.
Example 5 of 5: A California man’s civil rights were violated by civil servants (judges found) when police officers stole his money; however, the judges denounced the behavior while also invoking qualified immunity.
Reasoning: it is not yet clearly established within 9th circuit case law that a cop violates one’s rights by stealing one’s money
So the lesson that SCOTUS has for us: if you are a civil servant and violate civil rights in the regular, you MUST do so in a way that's innovative for your judicial circuit! So you must be BOTH cruel and unusual.
Example #2: Michigan: shoot grown-ups: https://www.detroitnews.com/story/news/local/oakland-county/2018/01/02/police-shooting-ferndale/109099014/
Example #3: Georgia: shoot children's knees: https://www.ajc.com/news/local/case-dismissed-deputy-aims-for-dog-but-shoots-kid/6NBUYNgAPMsGfC84LEot3O/
Example #4: Arizona: strip search 10-year-old girls: https://abcnews.go.com/Politics/story?id=7934307&page=1
Example #5: in California: police can rob you: https://www.fresnobee.com/news/local/article235405267.html
The real effort is a tri-partisan approach by Dem, Rep, and Libertarian members of Congress. Check it out here: https://www.endqi.com/petition/
BTW, I am a former U.S. diplomat. I worked on failed states as an intern during Condi Rice and at our 24-hour crisis Operations Center under Hillary Clinton. In emergencies, I've been one of those "essential" workers. I never needed immunity from civil rights law to do my job.
I have handled oil spills in the Caribbean Sea; standoffs over fights over oil and gas drilling in the Mediterranean Sea; H1N1 citizen services to Americans I'm Hong Kong back in a previous flu.
Why I, or any police officer, needs immunity from civil rights law - CIVIL RIGHTS LAW - is beyond me.
For the Lawyers: Legal Citation for Example #1: Texas: 5th Circuit: https://law.justia.com/cases/federal/appellate-courts/ca5/16-10498/16-10498-2017-11-03.html
For the Lawyers: Legal Citation for Example #2: Michigan: 6th Circuit: https://www.opn.ca6.uscourts.gov/opinions.pdf/17a0292p-06.pdf
For the Lawyers: Legal Citation for Example #3: Georgia: 11th Circuit: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-679.html
For the Lawyers: Legal Citation for Example #4: Arizona: 9th Circuit: https://www.law.cornell.edu/supct/pdf/08-479P.ZO
For the Lawyers: Legal Citation for Example #5: California: 9th Circuit: https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/17-16756.pdf
Jim Jeffrey follows the normal rules even when he has important jobs. I'm just saying that the Supreme Court would say he's nice, but that he could also just invent some new style of killing people while on the line of duty in a demanding gubmint job...and he'd be fine by them.
