Does the "John Doe" provision really accomplish anything?

The more I think about it, the more I think it doesn’t. What it does do is prevent the law from getting worse. Per the New York Sun’s account of the haggling over the provision, Bennie Thompson and the Democrats wanted to limit the immunity to people who report suspicions of terrorism, not ordinary crime, and to federal claims only, not state and local. The GOP won on those points. But let’s look at the language again as reported by the Wash Times yesterday:

“Any person who, in good faith and based on objectively reasonable suspicion, makes or causes to be made, a voluntary report of covered activity to an authorized official shall be immune from civil liability under federal, state and local law for such report.”

I read that as tantamount to: “Whoever reports an incident of suspicious activity for some reason other than prejudice towards Muslims is immune from suit.” But that was already the question posed by the imams’ complaint: did the passengers discriminate against Muslims by reporting on the imams? If their suspicions were reasonable, then they didn’t and the discrimination claim fails. If their suspicions weren’t reasonable, then they did and they’re liable. The equation hasn’t changed at all. It hasn’t even changed procedurally, in fact. From Pillage Idiot, commenting on Ace’s blog, comes this salient point:

One thing I find troubling is that in REAL qualified immunity for federal and state officials, it’s an immunity from SUIT, not a defense to liability. The language here says “immune from liability” — which sounds like a defense to liability. The significance of this is that in qualified immunity, the courts decide as early as possible whether the immunity applies, so they can spare the defendant the cost and burden of litigation. Here, at least the way it appears, the defendant may have to go well into the litigation, possibly to trial, before the “immunity from liability” can be determined.

I could be wrong in my reading of this, but let’s just say, this will have to be litigated for years before the meaning is clear enough for it to be helpful to John Does.

Yeah, that’s my sense too. Major John Tammes commented here yesterday that he thinks the provision will allow judges to decide upfront whether immunity applies. That’s not PI’s reading and it’s not mine either. Whether the passengers acted “objectively reasonably” in their suspicions is a question of fact for the jury; as such, the case will have to be litigated to its conclusion before that question is answered. Or am I reading it wrong? Lawyers are welcome to weigh in but if I’m right than we’re left with the same so-called “chilling effect” on tipsters that we had before. They may win their lawsuit if they’re sued but that’ll be cold comfort after they’ve been buried under legal bills for months and months.

Ibrahim Hooper understands this very well, as the following clip makes abundantly and painfully clear. Click the image to watch. A real solution, it seems to me, would have been to grant absolute immunity to tipsters inside an airport terminal or on a plane. That solves his KKK hypothetical, unless he thinks the KKK has nothing better to do than hang around the luggage carousel pointing out “brown people” to passing police.


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