Responsibility v. Immunity

Few, if any, will deny that each individual owes some duty of care to neighbors and the community at large. That responsibility may be expressed in a myriad of ways including, among others, paying taxes, voting, respecting street and road signs, adhering to ordinances against noise, or exercising care for the safety of others and their property. For the most part, such responsibility is reflected in laws, rules, ordinances, and the like.

In some instances, norms of behavior find their first expression in the courts by way of a lawsuit. On other occasions, legislatures or government agencies seek to anticipate a need for protection of the community against an emerging threat, e.g., discovery of e.coli in food products, dangerous side effects from a medication, unsafe children’s toys, and COVID-19.

For hundreds of years prior to 1916, a person injured by a manufactured device could not sue for personal damages unless that person was deemed to be in “privity of contract” with the individual or company that sold or manufactured the device. By the early 1900s, the Industrial Revolution, uninhibited by government laws or regulations, had created unsafe work places and introduced consumer products that contributed to serious injuries to purchasers.

At the turn of the century, industrial accidents were claiming about 35,000 lives a year, and inflicting close to 2,000,000 injuries. (Lawrence M. Friedman, History of American Law, 2005).

The response to this carnage led to the creation of workers’ compensation laws at the state and federal levels. Up to that point, workers were deemed not to be in privity of contract with their employers. In 1916, a New York Court, led by Benjamin Cardozo, ruled in favor of a consumer, Donald MacPherson, who was injured driving his 1909 Buick (MacPherson v. Buick). The defendant Buick argued that MacPherson purchased the vehicle from a dealer, not the company.

In 1967, the Supreme Court first introduced the doctrine of qualified immunity (Pierson v. Ray), arising from the height of the civil rights movement. The rationale was to protect law enforcement officials from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations. Starting about 2005, courts increasingly applied the doctrine to cases involving the use of excessive or deadly force by police, leading to widespread criticism that it has become a nearly failsafe tool to encourage reckless police behavior, often in instances involving Black people.

Neither of these protective initiatives was welcomed by business and industry. Notwithstanding, however, over many decades, legislation and government agency regulations have continued to evolve as the nation’s population expanded, along with an ever increasing appetite for goods and services. But the courts and Congress have been convinced to set some limits on responsibility.

In 1967, the Supreme Court first introduced the doctrine of qualified immunity (Pierson v. Ray), arising from the height of the civil rights movement. The rationale was to protect law enforcement officials from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations. Starting about 2005, courts increasingly applied the doctrine to cases involving the use of excessive or deadly force by police, leading to widespread criticism that it has become a nearly failsafe tool to encourage reckless police behavior, often in instances involving Black people.

Following a series of mass shootings and deaths, in 2005, President George W. Bush signed into law the Protection of Lawful Commerce in Arms Act that protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products. However, both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible in much the same manner that any U.S.-based manufacturer of consumer products is held responsible.

These two examples of immunity are but the tip of the iceberg, as media reports abound concerning the roll back of “burdensome” government regulations intended to protect the citizenry. While balancing responsibility and encouraging commercial intercourse may be a difficult public policy task, establishing immunity that insulates careless or deadly behavior from liability is myopic–and wrong.

Now, the federal and state governments are confronted with the coronavirus and its threat to the health and safety of individuals as well as commerce. When immunity is broad (i.e., blanket), it also creates less incentive to go beyond accepted levels of responsibility. This conundrum is especially true in this coronavirus epidemic. Businesses, particularly health care facilities and retailers such as restaurants, are faced with costs and necessary protective procedures that strain their economic existence. In Virginia, one local editorial noted:

Giving blanket immunity (except for “gross negligence or willful misconduct,” a tough barrier to clear) to such places takes away a large incentive to do better. There is less encouragement for large corporations that run such facilities to spend whatever it takes to put patients’ health ahead of the bottom line.

Short and sweet and pointed. It would have been one thing for all concerned were P45 correct in  his estimation that the pandemic would magically disappear in a short time. That is not the case, nor the case that scientists predict. The sole upside is that legal immunity for the coronavirus terminates when the pandemic ends. For victims of police or gun violence, the immunity survives, often preventing them from receiving just compensation.



Categories: CIVIL RIGHTS, CIVILIAN MILITIAS, gun control, Issues, Local, National, pandemic, POLICING, prosecutors, RULE OF LAW, State

Tags: , , , , ,

%d bloggers like this: