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One illustration of the way in which our legal system favors law and order over liberty is in the difference between qualified immunity and the rule of lenity.
Both doctrines are about notice—lenity, the notice a criminal statute most provide; qi, the notice officials must have of their constitutional obligations.
Lenity is about interpreting criminal statutes. The rule directs courts to interpret ambiguous criminal statutes in favor of defendants.
Although it used to be strong, today it is weak. It is a tool of last resort—meaning it applies only if nothing else resolves the ambiguity. And it applies only if there is “grievous” ambiguity. Lenity rarely affects prosecutions.
By contrast, qualified immunity is strong. It bars suits for damages against officials for violating constitutional rights unless their conduct was clearly unconstitutional.
The test is highly specific. An official will be held liable only if no reasonable officer would have thought that the particular conduct was legal.
Say an officer tases a student in a hall without permission who refuses to lie down when ordered to do so. That the fourth amendment clearly prohibits unreasonable seizures would not be a basis to overcome qi.
Instead, qi would turn on whether a prior case established that tasing under these circumstances (in the hall, refusing to lie down etc) was illegal.
This specificity requirement means that, until a court says otherwise, basically any ambiguity confers immunity. Qi often bars suits against officials.
So lenity is weak; qualified immunity is strong. If courts applied the qi standard to lenity, people would rarely be convicted, and if the lenity standard applied to qi, there would be lots of damages.
