What About the Rest of Us?
The Obama administration recently filed a somewhat encouraging amicus curiae brief in the Supreme Court case involving Savana Redding, the girl who was strip-searched when she was in eighth grade by Arizona public school officials looking for contraband ibuprofen. The brief (PDF) argues that the U.S. Court of Appeals for the 9th Circuit was right to conclude that the search violated Redding's Fourth Amendment rights but wrong to allow a lawsuit that seeks to hold the school officials personally liable. "The school officials are entitled to qualified immunity because the law was unclear at the time they acted," says the brief, which was signed by Acting Solicitor General Edwin Kneedler, joined by lawyers for the Education Department, the Defense Department, and the Office of National Drug Control Policy.
I won't comment on the case per se, except to say that we have to be insane to be placing adults in positions of responsibility who think it makes sense to strip search young girls looking for Advil.
But I will observe that the Obama administration's position in the last sentence is NOT the one it takes with my business any time or any place. Qualified immunity because the law was unclear? Hell, most of the regulations we deal with are wildly unclear -- everything from anti-trust law, which is anything a jury says it is, to how many sinks I need in my store. No one has ever suggested that I have qualified immunity because the law is unclear. In fact, the government makes very clear that I am absolutely liable for whatever they think the law says, even if this opinion changes from day to day.
Sean Wise:
Qualified immunity for an unclear law...it worked for Geitner. Oh wait, I'm sorry, that was clear violation. I misspoke.
March 28, 2009, 7:31 amVercingetorix:
I must disagree with Reason Magazine here. The Obama amicus brief is NOT "somewhat encouraging." In fact, it is discouraging-- though par for the course. For 30 or 40 years now one major procedural device for facilitating government officials' and their cronies' abuse of citizens has been making them immune to process. It is perfectly hollow to say "the plaintiff's rights were violated but the people who did it are immune to suit." Without a remedy there is no right. Besides immunizing themselves, bureaucrats have also immunized banks, insurance companies, telephone companies, and nearly everyone else, provided, of course, that they're assisting bureaucrats to oppress people. "Immunity envy" afflicts all bureaucrats and their pet contractors now-- every time one of them misbehaves and gets hailed into court s/he claims immunity and the courts generally grant it. It's the ancien régime all over again with government and quasi-government actors as the first and second estates. There may be no remedy short of "les aristocrates à la lanterne!"
March 29, 2009, 9:06 am