New York State introduced a bill to eliminate qualified immunity - the judicially created (unlawful legislation under Article III of the U.S.. Constitution) doctrine de facto reducing the Civil Rights Act and the U.S. Constitution to unenforceable garbage.
The concept that NYS even undertakes such a feat is per se sad. The federal Civil Rights Act was enacted by the U.S. Congress in order to bypass supposedly biased state court in a supposedly more "real people-friendly" federal court.
Not a chance.
Under this trick and that, federal courts created such a quagmire out of the Civil Rights Act that it has become more complex than any other type of litigation - contrary to its clear legislative intent: because constitutional rights violated by the government are usually rights of vulnerable individuals, including indigent and illiterate, litigating these claims must be beyond simple, geared to pro se litigants.
Instead, pro se litigants, especially the poor ones, are tied by that same Congress to a 3-strikes-and-you-are-out-without-a-right-to-appeal thing-y allowing federal courts to act as a de facto advocate and representative of government defendants without any need for the government defendants to even appear.
Recently, such a principle was used by the recently (sadly, only partially) reversed NDNY Magistrate Miroslav Lovric who created a mile-long "report and recommendation" as to why, before service of the Complaint of a pro se litigant upon the government defendants, the complaint should be - and was - dismissed, WITHOUT a right to appeal.
For most lawyers who never practiced federal civil rights litigation, their brains will curdle by reading this "report". Yet, a professional lawyer and judge Magistrate Lovric
held a poor disabled person, likely of low literacy, to the standard of professional civil rights litigator - while Magistrate Lovric literally appeared on behalf of government defendants by SUA SPONTE (on the court's own motion) recommending dismissal of the case - because the poor person of obviously limited literacy:
see the poor disabled person's application:
was (predictably) unable to navigate the judge-created (illegally created - remember that pesky U.S. Constitution giving the right to legislate, including to change statutes, only to the U.S. Congress?) labyrinth of precedents in the place of a clear and plain statute, the Civil Rights Act.
I wrote about the "3 strikes and you are out" statute, openly discriminating against the poor, the disabled, the illiterate victims of government's constitutional violations, analyzing this statute in detail 12 years ago here. Nothing changed since then, as Magistrate Lovric's "report and recommendation" in Campbell v Broome County shows.
So - is it a lofty cause that New York State is attempting to eliminate at least one federal court invention barring victims of government's constitutional violations to receive any remedy from the court, as was contemplated by the U.S. Congress in the Civil Rights Act? The so-called "qualified immunity"?
It could be a good thing - had it been an honest attempt to eliminate it.
The way the bill has been drafted, it is not.
First of all, the bill expressly addresses only ELECTED public officials.
That means that in the overwhelming majority of situations where the qualified immunity is used - hurting victims of constitutional violations by the government - including actions of social workers (unlawfully removing children in exchange for federal grants) or police officers using excessive, including lethal, force - New York State bill is inapplicable.
The next 9-day-wonder of the bill: that NYS AG - now an ardent DEFENDER of constitutional violators AGAINST their victims in every single civil rights action filed against a state public official - may now bring civil rights actions on behalf of the victims.
Representing parties on both side of the aisle, as far as I checked, was attorney misconduct.
The saddest part about it is that the bill is paraded as a real effort on behalf of the people.
What it is though - is empty promises to the electorate.
It at the same time
(1) recognizes that qualified immunity - and federal courts that created it - is an increasing human rights problem of a constitutional dimension requiring legislators' attention;
and
(2) provides an insulting no-solution addressing exactly the officials who are not usually the problem in qualified immunity cases.
It is - very simply - a deception of the electorate. Given who is usually suffering from qualified immunity - the poor, the illiterate, the disabled - a cruel and cynical deception.
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