If a law nominally exists, but is supplemented with immunity for violating it, does the law effectively exists? "Thou shalt not kill, but if you kill, that's OK, no repercussions whatsoever."
I am puzzled how the qualified immunity for violating civil rights enumerated in the amendments (e.g. the 1st, 4th, 5th) can possibly be constitutional, for it negates the civil rights. Could you elucidate the logic of it?
Qualified immunity relieves people who are accused of violating the civil rights of another under 42 U.S.C. § 1983 (and in Bivens actions which were federal common law claims against federal employees for violating the civil rights of another) of liability, when the constitutional right that is violated isn't "clearly established."
The concept behind qualified immunity is that law enforcement officers aren't lawyers and shouldn't be held accountable for money damages because they fail to predict how the constitution will be interpreted in a novel situation.
It is closely related to the court established case law interpretation of 42 U.S.C. § 1983 which requires a claim for money damages for a civil rights violation to be based upon intentional conduct of the defendant. How can conduct be an intentional deprivation of someone's civil rights if the fact that the conduct violates someone's civil rights isn't clearly established?
The way that "clearly established" has been interpreted by the courts, however, is often crabbed and often protects clearly improper activities that simply haven't been presented to a court in the fact-pattern presented.
Incidentally, § 1983 liability and Bivens liability is primarily liability for individuals. There is no vicarious or respondeat superior liability for this liability (although indemnification agreements with police unions often make this effectively the case). Local governments (but not state governments or the federal government) can have liability under § 1983 for themselves taking acts that lead to civil rights violations as a matter of policy. All governments are subject to injunctive relief when their policies violate the constitution, but that isn't money damages for someone who has been harmed by a past violation.
I will not defend qualified immunity. You are not alone in your criticism of it:
But it does not operate how you describe it.
Qualified immunity relates to personal liability. It does not excuse the constitutional wrong generally. A fourth amendment violation can still result in the evidence being inadmissible. A first amendment violation may still be remedied by striking down the flawed law, or by issuing an injunction against the bad state actor(s). Etc.
Qualified immunity simply restricts the possibility of recovering money damages from the individual state actors in their personal capacity, typically sought via a § 1983 claim or a Bivens claim.
