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I have held two publicly elected offices in my life. I served as a counselor with a regional government known as Metro. Later, I won a seat on the Multnomah Board of County Commissioners. Both times, the governments I served defended me against lawsuits while I performed my public service, providing that service involved no malfeasance or criminal actions on my part. In addition, claims filed against the government or its representatives had a financial cap. No astronomical awards were possible.
The first protection was vital. No one could govern if he or she had to bear the cost of a legal defense each time a citizen disagrees with a vote. Capping liability is also necessary, though it might seem unfair. No matter how serious the mistake, in a democracy, when a citizen files suit against the government, technically that citizen is suing himself and other taxpayers. Limited compensation protects the general good.
These two principles are at stake each time an individual accuses the government and its officers of wrong doing. For example, Donald Trump has ordered government agents to arrest and deport illegal immigrants. Already, several courts have struck down his decree. Nonetheless, unless the President and his agents are proved to have acted in bad faith, the government’s liability for damages is limited.
Julia Hare explores a new wrinkle in this doctrine known as “qualified immunity.” (“The Immunity Doctrine, by Julia Hare, Harper’s June 2017, pgs. 59-66) She charts the case of detainees who sued the Federal Government for violating their civil rights during the 9/11 crisis. They accuse then Attorney General John Ashcroft and former US President George W. Bush of subjecting them to unlawful imprisonment.
To win, they must prove their rights were violated and that the government and its agents intended to do so. Only proof of bad intentions could strip a president and agents of the government of their immunity.
Proving bad intention is a high bar and for good reason. As I’ve said, without qualified immunity, few would risk public service. In June, the Supreme Court will rule on the 9/11 case. If the high court sides with the plaintiffs, similar suits against Donald Trump and his deportation orders are likely to follow.
As to outcome, I am of two minds. Weakening qualified immunity protection could paralyze governments all the way down to rural municipalities like Loup County, Nebraska, population 585. On the other hand, as one of the 9/11 deportees argues, laws shouldn’t work only to protect those in power.
