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If we the people must follow the law, our government must follow the Constitution.  But a tangled web of legal doctrines effectively places government workers above the law by making it nearly impossible for individuals to hold them accountable for violations of constitutional rights.  Outside of narrow exceptions, these doctrines give all those employed by the government—police, mayors, school officials, IRS agents, you name it—immunity from lawsuits, even if they act in bad faith.Since the only way to enforce the Constitution is through courts, these doctrines make the Constitution an empty promise by firmly shutting the courthouse doors.  But the Constitution is a promise meant to be kept.  Those who take an oath to uphold it should be required to keep it.  If they don’t, they should be held accountable for their actions.  To that end, we need to be dedicated to knocking down barriers to the enforcement of our nation’s most fundamental law.  Never forget that the Constitution’s protections for private property, free speech, economic liberty, and other rights are only meaningful if they are enforceable.

Immunity Doctrines Let Government Workers Avoid Constitutional Accountability

At the Founding, it was uncontroversial that individuals could enforce their constitutional rights by suing government workers and recovering damages against them.  The practice of dismissing constitutional claims on immunity grounds flies in the face of this history and is contrary to one of our most cherished legal principles: where there is a right, there must be a remedy.

But thanks to the modern U.S. Supreme Court, there are now multiple doctrines that shield government workers from accountability.  Chief among them are qualified immunity, de facto federal immunity, municipal immunity, and prosecutorial immunity.  If any of these immunity doctrines apply, victims of government abuse are prevented from holding their abusers accountable in American courts.

De Facto Federal Immunity
Aside from three very narrow circumstances, it’s impossible to sue federal agents who violate the Constitution.

Municipal Immunity

Because of the Supreme Court, cities, counties, and other lower-level government employers generally can’t be held accountable for the actions of their employees.

Prosecutorial Immunity

Under this doctrine, prosecutors cannot be sued for any actions related to their job as a prosecutor, no matter how egregious the behavior.  In fact, since the founding of the USA, Ken Anderson is the only known prosecutor to have been jailed for misconduct that led to a wrongful conviction. 

The Heck Bar

Stemming from the train-wreck case Heck v. Humphrey heard by the U.S. Supreme Court in 1994, police and prosecutors can bar civil rights lawsuits by forcing victims of their abuse to plead guilty to crimes they did not commit.  This means that if victims of abuse at the hands of law enforcement officials are coerced into pleading guilty to concocted charges, they will likely be barred from later suing authorities for misconduct related to the incident.  Effectively, the real criminals in such an instance can use the "justice" system to shield themselves from civil liability.

Judge-Made Immunities Erode Constitutional Rights

Judicial immunities are antithetical to the idea of judicial engagement.  They often prevent or restrict courts from examining the actual circumstances surrounding a government worker’s actions.  Judges frequently justify this judicial abdication by arguing that courtrooms will be clogged with a never-ending line of frivolous cases.  But there are already a number of procedures available to courts and parties that allow for weeding out frivolous or insubstantial lawsuits, and studies have shown that judge-made immunities do not even serve the policy goals articulated to justify their creation.  So, they fail in both theory and practice. 

Moreover, particularly with judicial immunity, the argument that the courts would be overrun with civil cases against judges by litigants unhappy with the outcome of their cases simply isn't true.  Probably 99 percent or more people would accept rulings by the court if it ruled according to law and the Constitution.  Unfortunately, this is a rare occurrence today.  The whole reason judges need immunity is because they deliberately behave badly in so many instances.  It is because of intentional misconduct that judges want immunity, not because of neglect or inadvertence.

However, it should be noted that any other worker—a medical doctor, for example—is held liable for such unintentional actions.  Nobody forced judges onto the bench.  In their pursuit of power and money, they chose the position for themselves, and the legitimate argument could thus be made that their willingness to assume paramount responsibility is all the more reason why they should likewise suffer the consequences of improper acts, intentional or not, instead of being shielded—or sometimes even promoted—as a result.

Finally, judge-made immunities hurt the most vulnerable among us: individuals who have already suffered harm and for whom damages are the only way to vindicate their constitutional rights.  People who have the rare ability to file a lawsuit before the government violates their rights can generally get a hearing in court.  But people whose rights have been violated in the past all too often fall into one of the courts’ accountability-free zones, leaving them with their rights violated and no remedy in sight.

In other words, courts are on rare occasion open to plaintiffs who want to stop the government from violating the Constitution, but once the violation has occurred, judge-made immunities make it nearly impossible to hold government workers accountable.  Allowing government workers to escape accountability for unconstitutional conduct simply because it occurred in the past is an attempt to renege on this nation’s fundamental promises in the Constitution.

The bottom line is that—for any civilized society to prosper—the only form of immunity that should exist is immunity from infectious disease.  No other form of it should exist, period.  The keyword in this paragraph's first sentence is "infectious" because the U.S. legal system has truly become a disease.....and an exceptionally bad one at that.