A state of mind offered in answer to a question about an outcome, and then assessed without anybody's mind being examined. The doctrine that carries it removed the state of mind on purpose, and what replaced it is a question about the state of the reports.
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Good faith presents as the most human thing in a legal instrument. It appears to ask what the official believed, whether she meant well, whether she was trying.
That is not what it asks, and the misreading is not an accident of drafting. A finding of good faith excuses the outcome without reaching the outcome, because it is offered in response to a demonstrated injury and answers a different question than the one the injury raised.
[See THE BOOT · PROCESS SAYS]
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THE MIND WAS TAKEN OUT OF IT DELIBERATELY
The doctrine that carries good faith in American law is qualified immunity, and the Court removed the subjective element from it by name.
Harlow v. Fitzgerald, 457 U.S. 800 (1982), states the standard: government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The Court gave its reason for dropping the inquiry into what the official actually thought: the subjective element of the good-faith defense frequently has proved incompatible with our admonition in Butz that insubstantial claims should not proceed to trial.
Read what the test now turns on. Not the official's belief, not her diligence, not her intent. Good faith became a finding about the condition of the published reports, and whether an official held it is decided by what other courts had already written down before she acted.
Note also whose conduct the standard covers: officials performing discretionary functions, which is the class of decision that leaves no artifact in the first place.
[See DISCRETION · LAW OF THE BOOKS]
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AND THE STANDARD CAN ALWAYS BE MET, BECAUSE NOT ESTABLISHED IS THE DEFAULT
A right is clearly established only where a court has already held it violated on facts close enough to the present ones.
So the question is never whether the conduct was lawful. It is whether somebody else already litigated it and won, on a sufficiently similar record, in a court whose word binds this one. The first person to suffer any given violation therefore loses by construction, because at the moment of her injury no court had yet said so, and it is her losing that supplies the holding the next person will need.
And the supply fails at the same point. A court that disposes of her case on immunity need not decide whether the right exists, so the case that would have established it establishes nothing, and the next plaintiff arrives to find the law no clearer than she left it.
[See DISQUALIFIED TESTIMONY · REMEDY]
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THE EXCEPTION THAT ADMITS THE POISONED FRUIT
The folder already holds the rule this doctrine reverses. The illegal search is the tree, what it yields is the fruit, the poison travels through and the fruit cannot be used however damning it is.
United States v. Leon, 468 U.S. 897 (1984), admits it: The Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. The warrant was bad. The search was unlawful. The fruit goes in.
And the reason the Court gives is the part to keep, because it states the ownership of the remedy outright: the rule operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. The exclusion was never hers to invoke, it was the courts' instrument for shaping police behavior, and an instrument held for that purpose is withdrawn whenever its holder judges the purpose unserved.
[See THE APPLE · CAPTURED WORD]
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WHAT IS LEFT FOR HER TO PROVE
She arrived to show that something was done to her. She now has a different burden.
She must show that a prior court, binding on this one, already held such conduct unlawful on facts a judge will accept as materially the same. Her injury is admissible only as a repetition of an injury already recorded, so the question of whether it happened to her gives way to the question of whether it has happened before in the reports.
The distance between those two questions is the whole of what good faith accomplishes, and no one in the proceeding has to have acted in bad faith for it to work.
[See AUDIBILITY · CREDENTIAL]
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This entry does not hold that officials act in bad faith, and it does not need to. The doctrine's operation does not depend on anyone's faith at all, which is why the Court took the inquiry out.
What it holds is that a standard which can be satisfied by the absence of a prior case is not a standard about conduct. It is a rule about the archive, and the archive was assembled by the same institution that is being asked to answer.
[See CAPACITY TO REFUSE · CESSATION]
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
