There are some approaches to legal doctrine that adopt a reasonable person/common sense approach to what’s socially acceptable: “I know it when I see it” and defining hardcore pornography being the prime coupling. But every once in a while, we get a doctrine that is so convoluted that, to truly apply the precedent, requires stretches in common sense so dire that judges should be required to wear Lululemon when doing so. You might think I’m leading up to the Rule Against Perpetuities. Nope — even that feels like common sense in the face of how qualified immunity gets applied in Bivens actions. From PrawfsBlawg:
The Tenth Circuit rejected a Bivens claim against U.S. Marshals who beat a man unconscious outside his home while executing a warrant. The Court noted, but did not rely on, the fact that the plaintiff was assaulted outside his home, whereas officers attacked Bivens inside his home. The Court relied on the differences between deputy marshals and ATF agents and the availability of USMS grievances against the officers.
The case reveals how absurd Bivens has become. And the court uses language that seems to acknowledge that absurdity while blaming SCOTUS for forcing lower courts to reach such absurd results…Might the Court take this case or a similar case–in which the basic logic is “no Bivens claim because this guy is not named Bivens“–to pull back from the worst nonsense? Or is Bivens so doomed that the Court’s next move will be to overrule it? [Emphasis mine]
When it comes to police brutality, it really looks like a rose by any other name is a completely novel event so unforeseeable that it would unduly burden an officer’s capacity to enforce the law by forcing them to be Constitutional Law experts in each interaction. What a fortunate stroke of luck that Bill Shakes wrote Romeo & Juliet before the scrivener’s error that gave rise to the protectors and servers being able to beat on whomever they please and largely getting away with it.
Can we wrap up the “Divine Right Of President” and “Not Being Bribed” Clarence spats so we can focus on the important things like protecting us from the protectors? Please and thanks.
Earlier: Qualified Immunity Was Just A Legal Mistake This Whole Time?
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.