An Idea for Dealing with John Doe Defendants

Pillage Idiot posts a discussion on the issue of the type of immunity being sought for John Doe's who report suspicious behavior. Here is the legislative language that was ultimately agreed to by Congress:

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.

There are more than a couple of issues in that statement, namely, "objectively reasonably suspicion" but Attila writes in response to this discussion:

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.

Attila is probably pretty accurate in his assessment. The plain language reads "immune from civil liability," which sounds more like a defense that would have to be raised by the John Doe defendant rather than a blanket immunity from being sued. But this language does make sense when read in light of the "objectively reasonable suspicion" aspect. If a during a trial, a finding of fact concludes that there was no objectively reasonable suspicion, then the John Doe defendant is liable for civil damages. The only way to get to this finding of fact is to have John Doe as a defendant. You can't have a finding of fact, upon which damages will be assessed without having a defendant present.

Thus, the immunity from liability is much more understandable than a complete immunity from suit.

Now, to handle this matter, Attila makes the following suggestion:

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 am game, but not a seasoned lititgator. Still, assuming I get such experience and Attila and others can get this kind of group off the ground, you can certainly count me in.