Last edited Wed Jul 22, 2015, 11:57 PM - Edit history (2)
Basically "Qualified Immunity" is a legal act to DISMISS a case against a government official if the illegal act was within the discretion of the official AND there existed no CLEAR evidence that the act was illegal at the time the act took place.
Qualified immunity came out of Military cases, to free commanders of troops from being sued based on how he ordered those troops to perform in combat. After the passage of the post Civil War Amendments (the 13th, 14th and 15th amendments) and the massive expansion of federal power and rights during that time period, the US Supreme Court decided to adopt Qualified Immunity to Civilians who acted in violation of the 1865 Civil Rights Act and the above amendments, but within what the Court says was within their discretion. This was the law till the 1960s, when the Supreme Court expanded the right even more.
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv0460-52
http://www.tourolaw.edu/lawreview/uploads/pdfs/_2_QualImm_WWW.pdf
http://www.vanderbiltlawreview.org/content/articles/2012/05/Williams_65_Vand_L_Rev_1295.pdf
http://leb.fbi.gov/2012/september/qualified-immunity-how-it-protects-law-enforcement-officers
Now, the Federal Courts have put restrictions on liability for damages done by one person on another.
The Federal Court have adopted restrictions on Punitive Damages but have rejected restrictions on actual damages. Punitive Damages are intended to punish someone for doing something wrong. Actual Damages, Compensatory damages, are the money one is entitled to get to pay for the HARM someone incurred by the act of another. The rationale used for the difference in treatment is that any restriction on recovering Actual Damages means someone is NOT paying for the harm they did and that is a taking of victim's right to be made whole and thus a taking without compensation.
Punitive Damages are NOT designed to compensate someone for the harm they incurred do to the acts of another, but to punish the punish who did the harm. Since Punitive Damages are NOT to compensate for actual damages, the courts have said any restrictions on such damages are NOT a taking of property without compensation and thus NOT a violation of the Amendment that forbids taking of private property by the Government without compensation.
Now, the Courts have permitted the Government (both State and Federal) to ban even compensatory damages (Actual Damages) if an alternative is given to replace the right to sue. Under the Common Law, it was permitted for soldiers serving under an officer to sue that officer for any harm they incurred due to the negligence of the officer. This right was abolished and replaced by the right to a disability pension from the Federal Government.
Another example of this was the right of an Employee to sue his Employer. Prior to 1806 such suits were permitted, but then the courts decided to rewrite the Common law and adopted what are called the Three Wicked Sisters of the Common Law, Contributory Negligence, Assumption of the Risk, and the Fellow Servant rule. Note none of these rules existed prior to the 1800s. By the late 1800s Juries had found out about these rules and started to make founding of facts that clearly worked around these rules and workers were started to win lawsuits again. To avoid this trend, Businesses had the States adopt Workmen's Compensation. Unions agreed to Workmen's Comp for the Three Sisters, where still the law, even as juries worked around them. Thus workers gave up they right to sue their employers in exchange for the right to collect Workmen's Compensation set up by the states.
Now, the States COULD adopt something similar, but none of the States wanted to pay to set up alternatives (i.e. Single Payer health Insurance) thus medical insurance kept going through the roof. The blame was on lawsuits, so a decision was made to Cap them. The Huge Punitive Damages Awarded were brought out as example of what they wanted to end, but in reality such large pay outs were extremely rare, the larger money was in the compensatory damages, i.e. actual damages. Juries had to provide money for the loss of a leg, an Arm, or even a life and under the right set of facts such injuries could amount to millions of dollars.
For example if someone starts to work at age 17 and retires at age 67 (The retirement age for someone entering the work force today), i.e. worked 50 years, he would have earned, 50 years Times the Minimum wage of 7.15 per hour times 2080 hours a year in a 40 hour a week, 52 weeks a year job or $743,600 dollars. Anyone earning more then minimum wage will earn more then a million dollars in their life time. Just pointing out a Million Dollars is NOT that much money now a days.
On top of the lost wages, you also have actual cost of medical care, which can run into the millions of dollars. I like pointing out the first person to win a $1 million dollar medical malpractice suit. He won it in 1959 and the money was gone by 1972, all to medical care he needed. Yes, the jury did not give him enough money to pay for his medical care, so the State and Federal Government has been paying for his care since 1972 (I first heard of this story in the 1990s so the Victim may be dead now, but we taxpayers paid more and for a longer time period then the people who did the malpractice).
This is the problem with health care. Medical Care costs money. To a good degree the best way to handle it was the ACA (Obamacare) for it spread out the cost of such health care, but this discussion is on "Immunity" and the desire to reduce even compensatory damages.
Lets concentrate on the real issue, first Qualified Immunity has to go. If you did an act and it ended up causing harm, either have the person who did the harm pay for the harm OR admit that the Taxpayers have to do so. Second, lets see how ACA reduces actual compensatory damages. A Single Payer program would be better, but the ACA is at least a start at addressing the issue of who will pay for errors that are inherent in any system. Paying people for the harm done to them is better then saying, you have to endure the cost yourself for we do not want to raise taxes to pay for such harms.
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