Qualified Immunity and why D. Trump wants to have the chance Nixon had in 1968


The recent killing of George Floyd, in the State of Minneapolis in the U.S., fired massive protests against police practices and against racism, that is responsible for a huge number of incidents, revealing unsolicited violence, especially in the United States of America. Chauvin, the name of the police officer who deprived George Floyd of his right to be alive, was arrested on May 29th and charged with third degree murder and second degree manslaughter...but what is going to happen in court is doubtful, unless this time, the explosive scenery which takes place in the streets of Minneapolis and other U.S. States, succeeds to make a change to an institutional legacy in the U.S.A., called "qualified immunity".

Qualified Immunity, is a legal doctrine, found inside the United States Federal Law, that protects government officials from being sued from discretionary actions, performed within their official capacity, unless their actions violated 'clearly established' federal law, or constitutional rights. An important feature of this notion, is that qualified immunity, applies to acts that are "discretional" and not "ministerial". A discretional act requires that an official determines whether an act should be done or a course pursued, and to determine the best means of achieving the chosen objective. By contrast, a ministerial act is of "clerical nature", the official is typically required to perform the action regardless of his or her own opinion.

This practice, engaging a "discretional" option of a government official, and also the notion of "clearly established" which can apparently be extremely ambiguous, depending on how it can be translated each time, is really outrageous, if one thinks we currently live in the year 2020! This practice, is also highly demonstrative of the obsolete ideology and political correctness, of a country based in puritanic doctrines for centuries. Doctrines, that unfortunately, left their "trace" in the United States of America, of the year 2020...

Qualified immunity, dates back to 1968, when an American engineer named "Ernest Fitzgerald", who was a member of the Senior Executive Service, in the United States Air Force, once reported a 2.3$ billion cost overrun in an aircraft program. He then, became a whistleblower of the U.S. government. Fitzgerald, claimed he lost his position as a contractor with the United States Air Force, due to his whistleblower testimony, back in 1969. Inside this case, President Nixon, gained absolute immunity in his role as President. With this background, it was in 1982 that the United States Supreme Court, decided upon the case Harlow v. Fitzgerald, by involving the doctrines of qualified and absolute immunity.

With this doctrine, and a President like Trump currently leading the way for the U.S., the situation is much more critical and decisive, than it was in the past, even when the racial unrest of 1967 took place in  a majority of american cities. Back then, President Lyndon Johnson, gave a televised national speech, in which he said " We seek more than the uneasy calm of martial law"..."we seek peace that is based on one man's respect for another one"..."we seek a public order that is built on steady progress in meeting the needs of all of our people".

Trump made no address at all!

This is not the first time, that violence with racial traits is being recorded in the U.S. George Floyd, was the final source of irritation, in a scenery already explosive, with many violent incidents against black people, having preceded. Only in 2019, police killings in the U.S. reached number 1,099. Black people are 3 times more likely to be killed by policemen, compared to white people. 

It is true that within this situation of rioting against police and qualified immunity, and during a period of trial due to the pandemic of Covid-19, and a huge unemployment rate, it is easy to come down to the conclusion, that Trump is over for the next elections...But there is one piece of the puzzle not fitting well, able to turn things upside down, and Trump is looking forward to this opportunity...Exactly as it happened with Nixon, in 1968, when he exploited the circumstances of social unrest of his times, and made his way into the White House.

                                              written by Themis Panagiotopoulou, PhD in Political Science

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