|Qualified immunity's magical power||July 28, 2020|
|Harold J. Wolfe||Metrowest Daily News|
It is a form of sovereign immunity less strict than absolute immunity
The MWDN article on the passing of the police reform bill on July 14 mentions the concept of qualified immunity 10 times.
The doctrine of qualified immunity grants government officials performing discretionary functions immunity from civil suits unless the plaintiff shows that the official violated "clearly established statutory or constitutional rights of which a reasonable person would have known." It is a form of sovereign immunity less strict than absolute immunity.
Immunities aren't all that difficult to grasp. If the law is a vast set of rules defining what we can and cannot accomplish in a court of law, immunity is simply a device by which a judge declares a person off limits.
We are told the judges created it; but under Article I of the U.S. Constitution, only Congress can make law; under Article IV, only the Constitution and law made pursuant to it, not in derogation of it, are the Supreme Law of the Land; and under Article VI, all judges are sworn to support "This Constitution". The U.S. Constitution does not make any references to the concept of immunity.
It would seem that they who have immunity, have simply given themselves immunity by going into the pre-Constitutional past and extracted it from Common Law. They felt entitled to this right of immunity. The concept of common law is only brought up twice in the U.S. Constitution, both occurrences are in the Seventh Amendment.
Common law is a large historical cesspool of legal decisions from which one may draw definitively contentious legal opinions. Since Common Law precedes the U.S. Constitution, it references the concept of Sovereign Immunity.
Extracting the concept of immunity from common law is merely extracting magical powers from the pre-Constitutional days. The judiciary is saying "We had these magical powers then, and we sure as hell intend to keep these magical powers."
We are told repeatedly by the judiciary that no one is above the law but this is pure fiction. If immunity exists, then some people are indeed above the law, plain and simple. The concept of any immunity has as much legal standing as the infallibility of the Pope.
If I could go a little while without being totally ashamed of my Framingham state senator Karen Spilka, I would be so happy.
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