Like Valley Fever’s invisible spores in the air, the law is an important but unseen force that can determine your future. Learn how “qualified immunity” decides legal responsibility for Valley Fever infections and about ongoing legal action in Attorney Ben Pavone’s press release below:
QUALIFIED IMMUNITY UNDER FIRE
San Diego, CA – September 26, 2019
This office represents 270 prisoners and former prisoners who contracted the disease coccidioidomycosis, common known as “valley fever”, while in California state custody, after an epidemic of it swept through California’s San Joaquin Valley from 2004-2014. Prison officials did nothing during that decade despite numerous warnings and expert recommendations. As a result of the inaction, thousands of people became infected and subsequently debilitated in the worst mass tort in American penological history.
Their cases were nevertheless dismissed, not for lack of merit, but on a technicality called “qualified immunity,” a defense that is so uniformly invoked by the government to avoid all liability that it has swallowed multiple amendments to the US Constitution’s Bill of Rights.
For my clients, it negated the Eighth Amendment’s prohibition against cruel and unusual punishment. For many others, it nullifies the Fourth Amendment’s protection against unreasonable searches and seizures. Any lawsuit asserting a constitutional violation by the government must overcome the harsh syllogism of qualified immunity.
This defense – which was invented by the courts in 1967 and exists without any Congressional legislation or constitutional authority – represents the single biggest fulcrum that shifts power away from the People of the United States in favor of the Government. Jefferson, Adams, Madison – they are screaming in their graves.
Our Government, and most commonly agents of law enforcement, are unaccountable when they commit torts and crimes against the People of our country because of this doctrine: it not only includes wrongs committed against prisoners and those held in custody (for whatever reason), but to police brutality victims, everyday drivers, and mistaken targets of law enforcement. It applies in many contexts and situations.
The qualified immunity doctrine advanced over the last 30 years is so especially tilted in favor of law enforcement, that if the Rodney King beating happened today instead of in 1992, King would not have recovered a penny. His civil case would have been summarily terminated without a trial because there was no prior published case before 1992 that specifically held that police officers could not beat a wriggling, intoxicated suspect with batons on the side of the road until he was unconscious.
Moreover, since no prior case existed, such beatings could legally continue on the logic that no prior case had been published prohibiting it, even after the King case. What gets published instead are opinions circularly holding that no case has been previously published, on and on and over again.
Or, in my case, the courts simply decline to publish: that happened five times during the valley fever epidemic. Prison officials were thus never formally notified by the publishing court, here the Ninth Circuit, that they had to do anything about valley fever (such as, for example, implement the Supreme Court’s 1993 directions to protect prisoners from diseases). So of course, prison officials didn’t bother.
And this highlights the nonsense of it all. The qualified immunity doctrine insulates officers as long as the manner in which they do it has not been exactly prohibited by a prior published case. But a case that results in publication is exceedingly rare: an event must happen, it must be litigated, it must be appealed, and that appellate decision must be published. There are numerous ways that cases never reach such an outcome, and again, even when one does, the usual ruling is merely to find that no prior published case exactly on point exists – not that comparable cases do exist and that body of literature should have alerted officials that this particular tort or crime was prohibited.
Today, the qualified immunity doctrine is so far removed from the moral expectations of our society that, just three weeks ago, its invocation literally immunized officers who stole $225,000 during a search warrant. Admitting that this theft was “morally reprehensible” (or more simply, a felony), the Ninth Circuit in Jessop v. Fresno nevertheless insulated officers from all responsibility because there had never been a prior published case that exactly told them they were not permitted to steal while executing a warrant.
If it were not part of America’s now published literature, one would think that this sort of logic would be relegated to the law library in a third world dictator’s office, or maybe at best, sit in a dusty binder in the annals of an abandoned CIA black site.
But Jessop is now the law applicable to every citizen west of the Rocky Mountains.
Frenzied criticism of the qualified immunity doctrine has been pointed on both sides of the political spectrum:
Cato Institute: https://www.cato.org/sites/cato.org/files/pubs/pdf/pauly-v-white2c-cato-amicus-brief.pdf
Jessop sits so contrary to normative judicial decision thinking, that to a regular lawyer in the trenches, it almost seems as if the Ninth Circuit is daring the newly-constituted US Supreme Court to defend this outcome. To defend it requires a difficult intellectual exercise of validating a morally indefensible action (the theft), but to reverse it requires a quantum of erosion of a conservative doctrine steadily erected over the last 30 years to its current, impenetrable pinnacle.
As for my clients, half of whom paid their debt to society but live forever with an incurable lung disease contracted from their time inside, their case is pending before the Supreme Court for a certiorari decision. The High Court will soon grapple with a test of its ideological convictions versus its practical loyalties. Qualified immunity only exists as the product of major judicial activism, which ought to cause a conservative court to cringe; yet that activism was mostly authorized, ironically, by prior conservative courts.
Regardless of what the US Supreme Court (or any court) says (or declines to say), and speaking as a civil rights litigator who has spent a minute working through the doctrine’s logical permutations, qualified immunity as a coherent constitutional thesis sits instead at the vertex of absurdity. (See Bates v. Schwarzenegger, No. 1:14-cv-2085, Dkt. Nos. 49, 56 (E.D.Ca. 2019).)
Benjamin Pavone, Esq.
T: 619 224 8885