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Culture War Roundup for the week of March 27, 2023

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If qualified immunity protects government officials who knowingly break the law, but who do so in a way that hasn’t yet been ruled to clearly violate their victims’ constitutional rights (e.g., police who steal $225,000 while on the job), wouldn’t you agree that a sane legal system should likewise protect non-government officials in a similar way?

Leaving aside the fact that, by definition, qualified immunity does not protect against violations of established law ("We need not determine whether the complaint plausibly alleges the violation of a constitutional right, because Mr. Montgomery fails to show that the officers' actions violated clearly established law." Montgomery v. Gerdjikian (no. 22-1126, 10th Circuit 2023)), and that QI only applies to civil suits alleging violations of constitutional rights, which with very few exceptions can't be be violated by non-governmental actors, this is a criminal case. Qualified immunity does not protect officials from criminal prosecution.

As an aside, I am no fan of current QI jurisprudence, but there are perfectly legitimate reasons for providing QI re suits under Section 1983, which allows a successful plaintiff to recover his attorney's fees from the defendant. Make it too easy to sue under Section 1983, and no govt official will ever even think to look cross-eyed at anyone with money. And, btw, "qualified immunity, as a federal doctrine, does not protect government officials from liability under state law." Mack v. Williams, 138 Nev. Adv. Op. 86 (Nev: Supreme Court 2022), citing many cases.