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July 25, 2007

John Doe Language Offers Qualified, But Not Absolute, Immunity

Allah thinks this is a case of the best deal the Republicans could get.

The language provides for immunity, assuming the tip is made "in good faith and based on objectively reasonable suspicion." Allah's troubled, a bit, by the "objectively reasonable suspicion" part. After all, couldn't a jury disagree that the suspicion was reasonable?

It's often dangerous to craft a law conferring complete, absolute immunity. Look at Mike Nifong -- we'd all like to see him sued, but his well-nigh absolute (in fact, probably just plain absolute) sovereign immunity shields him from civil suit. Maybe there's an escape clause somewhere, but most lawyers seem to think there isn't.

I think the "good faith" standard would have been enough -- that alone would have granted immunity to most, but not to people who file knowingly false reports just to harass people. Still, without the "objective reasonable" standard, simple paranoids could file reports all day. Their good faith alone would shield them, despite the fact that their reports were bonkers.

But still, that's a rather rare case to be worried about. And most cops are pretty good at playing Spot the Loony. They're not going to put much effort into investigating tips coming from paranoid or even barking-mad tipsters, and hence people are unlikely to be actually harassed due to such reports.

The thing is, of course, that "suspicious behavior" is a hell of a lot more suspicious when it's a Muslim. That's simply a fact. Terrorism is almost entirely a Muslim phenomenon, but for some reason no one in the world of official law enforcement or politics or law is permitted to admit this. Judges will not admit it. Ergo, a group of Muslim imams moving around a lot and seeming to signal each other won't be viewed as "suspicious" by the "objective reasonable" standard, because, supposedly, it's not reasonable according to the objective person to have any additional suspicions about Muslims. That wouldn't be reasonable; in fact, that's racist. Or Islamophobic. Whatever.

I really don't see this conferring much protection on people. The good faith test alone was enough. Now one must have both good faith and be able to persuade a judge or jury that it's "objectively reasonable" to be more suspicious of Muslims than the general population? You can't so persuade them, because no one is officially allowed to acknowledge simple reality.

Scrap the deal. Try again.

Adds Nothing? I have to imagine that what a plaintiff has to show in winning a case based on a theory of harassment by a tip given to authorities is that the tip was objectively unreasonable and/or offered in bad faith.

In other words, a defendant in this sort of suit already has to establish his good faith and the objective reasonability of his tip.

So how, really, is it "immunity" to say he's shielded from suit if he acted in good faith and in an objectively reasonable way? He's already shielded from suit -- at least, shielded from losing a suit -- if he can show that, isn't he?

It's like passing a law saying a doctor is "immune from malpractice lawsuits" unless a plaintiff can show he was guilty of malpractice. Well, um, the plaintiff had to show that to prevail anyway, right?

Worse Still: To even provide any protection at all, a John Doe bill would have to allow a judge, from very early in the proceedings (when all is still reasonably inexpensive, and you haven't mortgaged your house to defend yourself yet) to decide immunity applies, and thus dismiss the suit.

Does this bill do that?

No. It allows the suit to drag on for months and months before any decision about immunity is made.

One thing I find troubling is that in REAL qualified immunity for federal and state officials, it's an immunity from SUIT, not a defense to liability. The language here says "immune from liability" -- which sounds like a defense to liability. The significance of this is that in qualified immunity, the courts decide as early as possible whether the immunity applies, so they can spare the defendant the cost and burden of litigation. Here, at least the way it appears, the defendant may have to go well into the litigation, possibly to trial, before the "immunity from liability" can be determined.

I could be wrong in my reading of this, but let's just say, this will have to be litigated for years before the meaning is clear enough for it to be helpful to John Does.

Thanks to the law offices of Atilla the Pillage Idiot.


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posted by Ace at 04:13 PM

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