Qualified Immunity

 

I Fought The Law

Robbin' people with a six-gun
I fought the law and the law won
I fought the law and the law won
I lost my girl and I lost my fun
I fought the law and the law won
I fought the law and the law won

But what is the Law?

The Law is the word of the sovereign.  In absolute monarchies, the Law is the word of the monarch acting as the sovereign, (i.e. L’etat, c’est moi).  In democracies the people are the sovereign, and the people speaking through their legislature, are the Law.  It is not possible for the sovereign to act against the law.  For example,  under the current law an action may be illegal. If the sovereign knowingly takes that action , that may be violating the CURRENT law, but since the sovereign’s word is the law, that action is the NEW law. The sovereign is thus considered to be immune from existing laws.  However if the sovereign himself is considered to be subject to the laws of another, for example, the Divine right of kings, then his actions may violate the Divine laws of his Divine sovereign.

A sovereign can not be expected to enforce all of his laws.  Officers of the sovereign, the law, may be required to carry out their commands, laws.  When they do, they are acting as agents of the sovereign, and if their actions are in conflict with the current laws, those actions may have qualified sovereign immunity.  Police officers are considered to be agents of the sovereign.  When they are enforcing the law, their actions may have sovereign immunity, if those actions can be qualified as actions of the sovereign.

Thus a police officer who commits murder in the course of his actions has qualified immunity only if the actions that led to that murder can be considered to be the actions of the sovereign.  If those actions are not considered to be the actions of the sovereign, then qualified sovereign immunity does not exist. 

That is the reasonable doubt that must be considered by a jury.  If the actions of an officer of the sovereign, e.g. force in apprehending a suspect, led to the death of that suspect, the question is whether it was reasonable to consider that force to be the action of the sovereign.  If that force was consistent with the actions of the sovereign, then, even if that force resulted in death, that action has sovereign immunity.  But those actions are qualified.  If those actions can reasonably be considered to exceed the actions of the sovereign, then they are not covered by qualified sovereign immunity.

There is a difference between being an agent of the law and the law.  You can’t fight the law, but you can fight agents of the law, when they are not acting as agents of the law.