It is important to note that national security relies on being capable of protecting the citizens, which requires some form of executive power superior to a regular entity. However, it is evident that there is a fine line between such a privilege and power abuse because the latter diminishes one’s rights. Courts dismiss cases involving national security matters because the defendants might have some form of qualified immunity, which makes it impossible to seek justice and responsibility from specific government officials.
Given the current state of the law, it is critical to identify recourses available for individuals who are injured by national security-related government policies. The first recourse available is Article III, Section 2 of the United States Constitution, which states that “the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority” (“Article III,” n.d., para. 2). In other words, the current practices of dismissing the judicial power of the courts under the notion of qualified immunity not only violate citizens’ rights but also is unconstitutional. The given section perfectly outlines all forms of controversies applicable under the law. Therefore, if an individual is damaged or injured due to national security-related policies, he or she is protected by the Constitution.
However, the Eleventh Amendment established sovereign immunity. It states that “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state” (“11th Amendment,” n.d., para. 1). In other words, courts are not obliged to hear certain cases from citizens against the state, which makes diminishes the previously described recourse.
The second possible recourse involves overcoming the qualified immunity of certain government officials, such as law enforcement. Victims of such a privilege need to be able to successfully argue against the prove provided by police officers since they carry a burden of proving that they need to be granted immunity. In order to recover money damages by a victim, the latter needs to demonstrate that “their constitutional rights were violated, and those rights were so clearly established that a reasonable officer/reasonable official would have known he/she committed the constitutional violation” (Shouse Law Group, 2021, para. 9). It should be noted that it is a highly challenging and intricate task to do since the second point because “a constitutional right “clearly established” is up for debate” (Shouse Law Group, 2021, para. 16). In other words, a victim needs to be able to prove that his or her constitutional rights were violated first. After the latter point is proven, the next step is to show that such a right is clearly established, which means that an officer or official is aware of them during the violation making the act intentional.
It is evident that overcoming qualified immunity is an uphill battle because the current legal framework is established in favor of privileges and immunities rather than citizens’ rights. Therefore, there needs to be a massive reform of the current policies in regard to national security and qualified immunity issues since they are highly easy to abuse. The main change needs to address the “clearly established” point of the process of overcoming the immunity. It is stated that “by far the most well-known manifestation is qualified immunity, which shields any and all government employees – not just police – from legal liability unless they violated a “clearly established” right” (Bidwell et al., 2021, para. 2). The given point is a threat to social justice and shields government officials from punishments. For example, “due to widespread indemnification policies, officers didn’t contribute a single cent in 99.59% of civil rights judgments and settlements” (Bidwell et al., 2021, para. 7). Therefore, the “clearly established” part of the current legal framework benefits government officials heavily by making it easy for them to violate citizens’ constitutional rights without any repercussions and financial ramifications.
By eliminating the “clearly established” portion of the law, a victim will be able to sue a government official and overcome his or her qualified immunity by proving that his or her constitutional rights were violated during the interaction. The given change would heavily alter the government officials’ conduct during such violations by respecting citizens’ rights and proceeding with carefulness. The main reason would be manifested in financial burden, which would result from lawsuits and recovering the injuries.
In conclusion, the current state of the law heavily benefits government immunity and privileges. The main reason is the fact that the United States Constitution provides a recourse to overcome such immunity in Article III, Section 2. However, the Eleventh Amendment severely diminishes the applicability of the point. In addition, the current legal framework requires that victims prove their constitutional rights were violated and that such a right is “clearly established.” The latter part is the most problematic one, which requires a reform because it allows government officials to obtain qualified immunity despite one’s constitutional right violation.
References
11th Amendment. (n.d.).
Article III. (n.d.).
Bidwell, A., Jaicomo, P., & Sibilla, N. (2021). Hope for reforming qualified immunity? It may lie in a compromise bill, a leaked draft shows. USA Today.Â
Shouse Law Group. (2021). Overcoming qualified immunity in civil rights claims. Shouse California Law Group.Â