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Old July 26, 2017, 10:28 PM   #2
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Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,089
<<<NOTE: What follows is a response to a Driveby Post. The response is substantive and informative and so it has been left in place even though the post that prompted it has been deleted.>>>

Do you mean why is there qualified immunity? Like Spats, I'm a lawyer but not your lawyer. Unlike Spats, I don't practice civil rights law and, for more than a few years, have practiced very little civil law. Spats alluded to the reasons, but I'll continue.

At common law, the king or queen as sovereign, could do no wrong. The sovereign employed people to do his or her bidding. An attack or suit against the sovereign's agent was an attack on the sovereign.

Today, the federal or state government*, representing the people, is the sovereign and suits against government agents are an attack on the sovereign/people. The justification for sovereign immunity is two-fold. First, it protects the treasury. Second, it insures a functioning government. If the sovereign's agents were liable for any and all misjudgments, precious few people would want to work for the government. I'll note but not discuss the fact that some suits for injunctive-type relief may be available to compel an agent to complete ministerial functions.

Finally, there is the 11th Amendment to the U.S. Constitution:
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.
I'm getting a bit out of my depth here, but I think this is rather narrowly construed --- generally disallowing suits in federal court against the state itself but not against its agents provided they are not immune as discussed by Spats in his first post.

*This often includes political subdivisions but there is not always a clear line.

Last edited by JohnKSa; July 27, 2017 at 12:53 AM. Reason: Provided note explaining context.
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