This last week we got one of the most ridiculous legal opinions using qualified immunity in a legal case, as reported by USA Today
editor Brad Heath:
Yes, you read that right - because the Fourth Amendment doesn't explicitly say that cops stealing private property during a search is wrong, the cops doing so are protected under qualified immunity from being sued to recover the stolen property. This is yet another insane expansion of the principle of qualified immunity - a legal concept meant to protect government workers that has been so expanded that it shelters all sorts of malfeasance.
Qualified immunity has always been problematic, and it's origins questionable, as this explainer cartoon shows
. A large part of problem lies in the wording of the Federal law used to sue in the first place - because it says that the right has to be "clearly established", if an argument can be made that it isn't, then the court can rule that the requirements have not been met - thus the birth of "qualified immunity". The problem is that courts have taken to define "clearly established" with a lot of flexibility, with what makes "clearly defined" getting defined very liberally at times. A solid argument can be made that the whole argument for qualified immunity falls apart on examination
, and that the courts should get rid of it - and opinions like the one at the start serve to illustrate how badly defined qualified immunity is.