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Originally Posted by delarosadavid
. . . . Thanks, Frank. That summed it up pretty nicely. I suppose that I am grasping at straws on this one. It just feels... negligent??? I wish I could find the term I want to use here. It seems negligent that the government would want to leave us defenseless.
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Speaking of negligence, you would also have to overcome the hurdles of governmental immunities. I haven't studied these in all states, but from what I do know of the states in the Eighth Circuit, governmental bodies are immune from actions that sound in negligence. I don't mean immune from liability, I mean immune from suit. You can get a declaratory judgment that a particular law is unconstitutional, but if you want money damages from lawmakers for passing an unconstitutional law, you'll have to overcome some combination of:
- sovereign immunity;
- legislative immunity; and
- qualified immunity
And that's just to get past the summary judgment stage and get it to a jury. Even if you win at that summary judgment stage, in the Eighth Circuit, a defendant who is denied qualified immunity gets an immediate (interlocutory) appeal to take it up to the 8th, which will decide the immunity issue. If you win that appeal, then it goes back down for trial.