That’s a good point. Although I still think that evidence of awareness of illegality would help the plaintiff’s case-in-chief in a civil action.

I know this because of what I saw a few years ago when I was a Deputy United States Marshal. In an eastern state near Washington, DC, a male and a female deputy were handling a prisoner in the marshals’ office. The prisoner, handcuffed, got his arms around the male deputy’s neck from the rear, with the handcuff chain cutting into the deputy’s throat, which would have killed the deputy in moments. The female, to save her parner’s life, shot the felon, a vicious thug who had killed other police officers and was a high escape risk.

I’m a big guy, 6’3″ and about 250 lbs, trained in hand-to-hand combat in the Marine Corps, as well as Federal Protective Service Police Academy, and CFLETC, the Marshals’ academy, and if I were there, I would have had to do the same, as there is no way to quickly pull someone off when he has his handcuffed arms around someone’s neck from the rear.

Based on my forty-odd years of military and police experience, I am sure that the shooting was completely justified. That deputy was moments from death. Yet neither the Marshals Service nor the US Department of Justice of which it is a part would do a thing to help or defend the deputy who saved her partner’s life. She was suspended without pay, had to hire her own attorney- and pay attorney’s fees out of her own pocket. Even though she was cleared by an internal investigation, it was only after she was completely cleared at the coroner’s inquest and her lawyer pressed the issue was she offered her job back.

Will Department of Justice lawyers defend employees? Yes, if you are a high level and politically connected bureaucrat. But the regular field troops? Not until hell freezes over!