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July 26, 2007

Dealing with John Doe immunity -- UPDATED

UPDATED at bottom....

If you'll excuse me for trying to be serious for a change, I want to make a suggestion for dealing with the outcome of the provision recently agreed to for "John Doe" immunity.

If you don't know what I'm talking about, let me explain quickly. Some months back, six Muslim men alarmed passengers and crew on a Northwest Airlines flight with their behavior and were taken off the flight. The so-called "flying imams" promptly held a press conference to rail about anti-Muslim bigotry. Later, supported by CAIR, they brought suit against the airline and the "John Doe" passengers who reported the suspicious behavior. The House and Senate each passed a provision that would confer immunity on these and future "John Does" who reported suspicious activity. At the last minute, the Democrats in the House forced the provision out of the bill during a conference committee on the Homeland Security bill. And after an outcry by some House Republicans and a whole hell of a lot of bloggers, the House Democrats agreed to restore some language conferring immunity.

Via HotAir, here is the language they agreed to:

“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.”
Ace was discussing this immunity as a qualified one, which it is. But like every other federal government lawyer, I have a passing familiarity with a specific doctrine called "qualified immunity," which is sometimes available to government officials sued for damages in their individual capacities. So I began trying to see it in those terms. I posted a comment at Ace's, which he then pulled up into the text at the link above. (Amusingly, he concluded by saying, "Thanks to the law offices of Attila the Pillage Idiot.") What I wrote was my tentative conclusion:

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.

I'm still not sure I'm right in my reading of the new language, but I do think I'm right that it's not clear enough to give comfort to potential John Does, who still have reason to fear lawsuits against them for reporting suspicious activity.

Today, I came up with what I think is the best way to handle this situation, given that the language is clearly not going to become any better than it is now.

It's time to put together an organization that will have a relationship with seasoned litigators willing to work pro bono on behalf of John Does. This organization would be like FIRE, the Center for Individual Rights, and others that I can come up with if I try.

Having an organization like this will mean that John Does can come forward without fear of having to bankrupt themselves in defending a suit brought by the likes of CAIR just to get to the point where they're entitled to immunity under what's likely to become the law. A ready supply of defense counsel will also force CAIR to watch its step in bringing these actions. The United States has a tremendous interest in encouraging citizens to come forward with information about potential terrorist acts, and it's extremely important to offset the disincentives created by the legislative compromise on immunity.

I think this is a pretty good idea, but it's not a job for me. I'm going to email a few people to see if I can stir up some interest in it. I'll let you know.

UPDATE (7/27): HotAir links to the text of the provision, section 1206 of the bill. The new section is somewhat better than I thought yesterday, based solely on the news reports available at the time, but it doesn't solve the problem. Section 1206(c) adds the following language providing for attorney's fees for successful John Doe defendants:
Any person or authorized official found to be immune from civil liability under this section shall be entitled to recover from the plaintiff all reasonable costs and attorney fees.
An attorney's fee provision certainly will act as a disincentive to suits against John Does, but when suits are nevertheless brought against them, the John Doe defendants, in order to obtain attorney's fees, will have to be "found to be immune from civil liability." They won't be "found" to be immune until they reach the same stage of litigation we were discussing yesterday. So, while section 1206(c) is a help, it doesn't avoid the need for a stable of litigators ready to defend John Does pro bono.