Us Department: Above The Law?

In a country where citizens are expected to abide by the law, it is only fair that government officials and departments do the same. However, in the United States, there have been instances where government officials have been accused of abusing their power and evading accountability. One such incident involved James King, a college student who was brutally beaten and choked unconscious by a police officer and an FBI agent. Despite the officers' outrageous behaviour, they argued for immunity from accountability, claiming qualified immunity, a doctrine that protects officers from even the most egregious constitutional violations. This case and others like it raise the question: Can a US department be above the law?

Government officials and immunity

While government officials are not above the law, they do enjoy a degree of immunity from prosecution and lawsuits for actions performed within the scope of their jobs. This is known as qualified immunity. Qualified immunity was introduced by the U.S. Supreme Court in Pierson v. Ray (1967) to protect government officials from frivolous lawsuits and financial liability in cases where they acted in good faith in unclear legal situations. For example, in Saucier v. Katz (2001), military officers Saucier and Parker were warned of possible protests during a speech from Vice President Albert Gore, Jr. When Katz began putting up a banner in defense of animal rights, Saucier detained Katz in his military van. Katz sued, arguing that his Fourth Amendment rights had been violated. The court ruled in favor of Saucier due to qualified immunity, holding that "the ruling on qualified immunity requires an analysis not susceptible of fusion with the question [of] whether unreasonable force was used in making the arrest".

The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982). Prior to this case, the U.S. Supreme Court granted immunity to government officials only if: (1) the official believed in good faith that their conduct was lawful, and (2) the conduct was objectively reasonable. However, determining an official's subjective state of mind required a trial, often by jury. The Harlow v. Fitzgerald decision removed this requirement, instead asking whether a reasonable official in the defendant's position could have believed that their conduct was lawful.

Critics argue that qualified immunity makes it excessively difficult to hold government officials accountable for misconduct and gives them the power to trample on citizens' rights with impunity. In response to these criticisms, the Court has modified the mandatory sequencing of Saucier v. Katz in Pearson v. Callahan (2009), holding that "the Saucier protocol should not be regarded as mandatory in all cases". This modification gives courts the discretion to evaluate either the constitutional violation or the rights issue first, expediting some cases and reducing waste in the court system. However, it has also led to cases that focus heavily on one side of the case and weigh in favor of government officials, particularly in the area of police brutality.

While qualified immunity provides some protection for government officials, it is not absolute. For example, in Bivens v. Six Unknown Named Agents, the Supreme Court held that plaintiffs may sue for damages if federal officials violate their constitutional rights. Additionally, qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials' actions. Furthermore, judges, prosecutors, legislators, and some other government officials do not receive qualified immunity, although most are protected by other immunity doctrines.

Ethics rules for department officials

While no one in the US is above the law, including government departments and officials, there are a number of ethics rules and regulations that apply specifically to US department officials.

US department officials are subject to a variety of ethics rules and regulations that govern their conduct and ensure they act with integrity and in the public's best interest. Here are some key ethics rules that apply to department officials:

• Conflicts of Interest: Officials must avoid any conflicts of interest that may influence their decision-making. This includes financial conflicts, such as holding investments or assets that could be affected by their official actions. Officials with conflicts may be required to disqualify themselves from matters affecting their interests or seek a waiver.
• Use of Position and Title: Department officials may not use their position or title to coerce or exert undue influence over others, including subordinates. They must not imply that their personal activities are sanctioned by the government. While they can provide recommendations on request using official letterhead, they may not endorse products or services.
• Handling of Information: Nonpublic information, such as sensitive or classified material, must not be used for personal gain or to benefit others. Officials are responsible for protecting such information and ensuring it is only shared through secure channels.
• Use of Government Property: Government property, including time and resources, should only be used for authorized purposes. Officials must not misuse their position to direct subordinate time towards non-official duties unless permitted by statute or regulation.
• Political Activities: While most employees can participate in partisan campaigns, they may not use their official authority to interfere with elections. Additionally, fundraising in an official capacity is generally prohibited unless authorized by statute or regulation. Personal fundraising is allowed, provided it does not involve soliciting funds from subordinates or those with business connections to the department.
• Financial Compensation: Noncareer (political) employees above a certain level may not receive additional compensation for certain activities, such as serving on boards or engaging in fiduciary relationships. They must also avoid using their official titles to promote their teaching, speaking, or writing outside of scholarly articles or biographical contexts.
• Ethics Counselling: Department officials are encouraged to consult with ethics counsellors or advisors within their departments to ensure they comply with ethics regulations. This is particularly important when an employee's impartiality could be called into question or when seeking to apply a limited exception to ethics rules.

These rules help maintain the integrity and accountability of US department officials, ensuring they uphold the public's trust and act in the best interests of the nation.

Government ethics restrictions

Government officials and employees are not above the law and must follow the Constitution. There are several ethics restrictions in place to ensure accountability and prevent abuses of power. These laws apply to all federal employees and carry criminal penalties for non-compliance.

The Office of Government Ethics (OGE) provides limited regulatory exemptions, with exceptions for certain financial interests arising from Native American birthrights and a very limited waiver authority. Federal employees are prohibited from receiving any salary or compensation from an outside source for services performed as a government employee. They must also avoid any appearance of loss of impartiality in the performance of their official duties and refrain from participating in matters affecting their financial interests or those of their immediate family.

Additionally, government employees are restricted from using their public office or official title to endorse products or services and from engaging in fundraising in their official capacity without authorisation. They are also prohibited from accepting compensation for speaking, writing, or teaching related to their official duties.

To maintain ethical conduct, employees must disclose all relevant facts to ethics officials and adhere to rules regarding political activities, financial conflicts of interest, and the impartial performance of official duties. These restrictions are outlined in sections 202 to 209 of Title 18 of the U.S. Code, Executive Orders, and specific regulations applicable to different departments.

Departmental appointments

No government official or department is above the law. The US Constitution's Appointments Clause outlines the appointment process for government officials, including departmental appointments.

The Appointments Clause distinguishes between two types of officers: principal officers and inferior officers. Principal officers, such as Supreme Court Justices, are selected by the President with the advice and consent of the Senate. This process is outlined in the Constitution and requires a two-thirds majority vote from Senators present.

On the other hand, inferior officers are those whose appointments are at the discretion of the President, judiciary, or department heads. Congress may allow these appointments to be made by the President alone, by the judiciary, or by the heads of departments.

All government officials, regardless of their position, are subject to ethical restrictions outlined in Title 18 of the US Code and Executive Order 12674, as modified by EO 12731. These restrictions include not using their position to coerce subordinates, not endorsing products or services, and not engaging in fundraising in their official capacity.

The case of James King, a college student who was brutally beaten and choked unconscious by a police officer and an FBI agent, highlights the importance of holding government officials accountable. The officers involved attempted to evade accountability by invoking qualified immunity, a doctrine that protects officers from consequences for constitutional violations. However, the Supreme Court rejected this argument, demonstrating that no government official is above the law.

Human rights awareness

In the context of "Can a US department be above the law?", it is crucial to examine the role of various US departments and their adherence to human rights principles. The US Department of Justice, for example, has a Civil Rights Division dedicated to enforcing federal laws that protect individuals from discrimination based on race, colour, national origin, disability status, sex, religion, and other protected characteristics. This division also addresses issues such as hate crimes, human trafficking, and workplace discrimination. However, there have been concerns raised about the department's approach to certain issues, such as its continued defence of federal death sentences and its response to incidents of police brutality.

One notable example of a human rights concern involving a US department is the case of Manuel Esteban (Tortuguita) Páez Terán, an environmental human rights defender. Páez Terán was killed by Georgia State Patrol officers during a multi-agency law enforcement operation to clear encampments of Defend the Forest activists. Despite a moratorium on federal executions, the Department of Justice continued to defend existing federal death sentences and sought new ones. An independent autopsy revealed that Páez Terán had been shot 57 times, raising questions about the use of excessive force.

Additionally, there have been reports of states enacting laws that potentially violate human rights. For instance, Idaho authorised the use of firing squads as a method of execution, and Florida passed a law allowing for a death sentence with only eight out of 12 jurors voting in favour, the lowest threshold in the US. These laws raise concerns about the US's commitment to protecting human rights, particularly the right to life and freedom from cruel and unusual punishment.

To promote human rights awareness and compliance, the US has established mechanisms such as the Civilian Harm Incident Response Guidance system. This system aims to investigate and address incidents where US-made weapons are used to harm civilians, holding US arms recipients accountable for their actions. Additionally, the Leahy Law prohibits assistance to foreign military units and individuals accused of human rights violations, emphasising the importance of upholding human rights standards in international partnerships.

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