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Response to Melinda (Reply #27)

Sun Jan 27, 2013, 10:30 PM

40. Actually that was NOT proved at trial

This was on a Motion by the US Government to dismiss the Complaint under the concept of "qualified immunity". This is a motion filed BEFORE the start of the trial in cases where the Government believes it will win, even if the Plaintiff proves everything he claims happened actually happened. When the motion was denied as to the First Amendment (but upheld by the Trial Judge as to the 4th and 14th Amendments). the Government appealed.

On such a motion ALL FACTS ARE ASSUMED TO FAVOR OF THE NON-MOVING PARTY, in this case the Plaintiff. Thus the Trial Judge ruled that even if the Plaintiff proved EVERYTHING he claimed happened, actually happened the Plaintiff would still lose on the 4th and 14th amendment grounds. On the other hand the Trial Judge ruled that the Plaintiff MAY win on the 1st amendment ground and thus the claim based on the First Amendment survived the motion to dismiss.

This case should now be sent back to the Trial Court to hold the actually trial as to did the Security at that airport violate this person's first amendment rights AND what would be the amount of damages.

For a background on "Qualified Immunity" See:

Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Qualified immunity shields government officials from liability for the violation of an individual's federal constitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate "clearly established law." The defense of qualified immunity was created by the U.S. Supreme Court, replacing a court's inquiry into a defendant's subjective state of mind with an inquiry into the objective reasonableness of the contested action. A government agent's liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with "malice," but on whether a hypothetical reasonable person in the defendant's position would have known that his/her actions violated clearly established law.



http://en.wikipedia.org/wiki/Qualified_immunity


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