Brerrabbit;
Looking up qualified immunity in wikipedia would shed some light on this. The issue is whether the officer REASONABLY believed he was acting legally. The law allows for honest screw-ups on the part of LEOs. If another officer of similar training and experience would have likely done something similar, qualified immunity could come into play.
I know many officers who've had their searches declared illegal. The only benefit to the suspect in those cases is the fruits of those searches were excluded from the court case. The other charges, including resisting, etc. stuck.
I'm not saying this will happen in the NC activist case. I'm just raising this possibility. Again, the moral of the story is discretion is the better part of valor.
If an LEO makes a legitimate mistake on a constitutional issue, all you get is an "ollie-ollie oxen-free" on the ORIGINAL charge. Other charges may not stick, if they can't stand on their own. But if they can, sucks to be you.
What you're referring to is blatantly unconstitutional acts, or a pattern or practice of abuse. This, along with assault under color of authority and other federal statutes are what opens the can of whup-a$$ on police officers. But often, the benefit of the doubt goes to the officer, by design, so that there is no direct penalty for inadvertently crossing the line, or crossing it where it is blurry or gray.
So, although the original issue is likely unconstitution, in my opinion, there is still a lot of room for the courts to sort out to what degree the additional charges stick, or not.
I agree with your final paragraph. The funny thing about the law, is that probably doesn't matter, as long as the officer can cobble together a legitimate rationale. In my area, from what I've seen, this officer would lose his job, but would appeal to the civil service commission and get it back with back pay. The county would settle for a couple of $100k, without admitting culpability. NC is likely completely different.
I want to make it clear that I don't condone the deputy's action at all. He really stepped in it, legally and politically. However, when this all shakes out, it likely won't be cut and dried.
My point is to dispel this sort of frontiersman myth that barricading yourself in your house is the appropriate way to protect your rights. History suggests that this will end up worse off for you than doing like Hunter S. Thompson: "Send lawyers, guns, and money".
-John
