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Polytelum Tom

Police Qualified Immunity

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Abolish Qualified Immunity
 

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The story begins in 1871. In the aftermath of the Civil War, numerous state and local officials throughout the former Confederacy turned a blind eye (or worse) to the racist domestic terrorism perpetrated by the Ku Klux Klan and other groups. Congress responded to this dire state of affairs by enacting a series of so-called enforcement acts, each one rooted in Section 5 of the recently ratified 14th Amendment, which gave federal lawmakers the power "to enforce, by appropriate legislation, the provisions of this article." Among the provisions of the 14th Amendment was the requirement that states respect the constitutional rights of U.S. citizens.

Perhaps the most forceful of the enforcement acts was the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. Among other things, it sought to hold state officials personally liable for the widespread civil rights violations that were occurring on their watch. It did so in part by declaring that "any person who, under color of any law, statute, ordinance, regulation, custom or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States shall…be liable to the party injured in any action at law, suit in equity, or other proper proceedings for redress."

"If the Federal Government cannot pass laws to protect the rights, liberty, and lives of citizens of the United States in the States," declared the bill's principal author, Massachusetts Rep. Benjamin F. Butler, a radical Republican and former Union major general, "why were guarantees of those fundamental rights put in the Constitution at all?"

Butler's handiwork lives on today in modified form in Section 1983 of Title 42 of the U.S. Code, more commonly known as Section 1983. It features language almost identical to the Ku Klux Klan Act.

...

 

The article goes on to describe how Chief Justice Warren invented qualified immunity in 1967 and Justice Powell doubled down on it in 1982.
 

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What can be done? There are two possible fixes. The first is for the Supreme Court to reverse or modify its misguided precedents.

At least two justices may be ready to do just that. The Court's "one-sided approach to qualified immunity," objected Justice Sonia Sotomayor in Kisela v. Hughes (2018), "transforms the doctrine into an absolute shield for law enforcement, gutting the deterrent effect of the Fourth Amendment." To make matters worse, "it tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished."

Justice Clarence Thomas, meanwhile, has suggested that the doctrine itself might be unlawful. In Ziglar v. Abbasi (2016), Thomas wrote a lone concurrence "to note my growing concern with our qualified immunity jurisprudence" and to urge the Court to "reconsider" that jurisprudence "in an appropriate case."

Earlier this year, when the Court declined to hear Baxter v. Bracey, a case involving the grant of qualified immunity to officers who allegedly unleashed a police dog on a surrendering suspect, Thomas blasted his colleagues for refusing to get involved.

Section 1983 "ma[kes] no mention of defenses or immunities," Thomas pointed out in his dissent. "Instead, it applies categorically to the deprivation of constitutional rights under color of state law." In other words, the judicially invented doctrine does not match the text enacted by Congress. "There is likely no [legal] basis for the objective inquiry into clearly established law that our modern cases prescribe," he wrote. "I continue to have strong doubts about our [Section] 1983 qualified immunity doctrine."

The other fix requires action from Congress and the signature of the president. Because this doctrine arose via the judicial interpretation of a federal law, federal lawmakers need only pass a new statute to expressly repudiate what SCOTUS has done.

That approach is slowly gaining adherents. "Qualified immunity protects police and other officials from consequences even for horrific rights abuses," observed Rep. Justin Amash (L–Mich.) when he introduced the Ending Qualified Immunity Act in the House of Representatives in June. Amash's bill had garnered 65 co-sponsors at the time this article went to press, though a majority of Senate Republicans have declared the idea dead on arrival.

...

 

Glad to see that the Wise Latina is on Team Crazy on this issue but I doubt that she and Thomas can convince the rest. That's why I think Justin Amash is on the right path.

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So...  despite their opposite political affiliations, it's the Justices who happen to be visible minorities, that get it?  Funny how that works.

 

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On 9/5/2020 at 8:39 AM, Mismoyled Jiblet. said:

No, dumbfuck, Virginia was trying to end it. 45 Republicans voted against ending it, so the bill went down 47-48

https://www.wavy.com/news/politics/virginia-politics/bill-that-wouldve-eliminated-qualified-immunity-for-police-in-virginia-rejected-in-house-of-delegates/

so one of Tom's 'teams' wants to end it ?  good for them.  Why does Tom vote for the other team?

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13 hours ago, frenchie said:

So...  despite their opposite political affiliations, it's the Justices who happen to be visible minorities, that get it?  Funny how that works.

 

Sotomayor's objections in 2018 hit the mark about how things work in practice but she didn't join Thomas' concurring opinion in 2016 nor his dissent earlier this year when the court refused to hear Baxter v Bracey.

12 hours ago, MR.CLEAN said:

so one of Tom's 'teams' wants to end it ?  good for them.  Why does Tom vote for the other team?

Not sure how many teams you think I have nor how you think you know my votes, but TeamL has wanted to end it for some time. That might explain why 3 of 4 mentions of this topic on this forum prior to this thread were from me, as noted in the topic post.

On 8/3/2020 at 9:36 AM, Cacoethesic Tom said:
On 8/3/2020 at 8:52 AM, MR.CLEAN said:

meanwhile, in a shocker, the senate bill does not do what the GOP says it does

Is this in response to my next post about the Massachusetts Senate? Or what? And what GOP source are you referencing?


Still wondering...

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On 9/4/2020 at 5:36 PM, Cacoethesic Tom said:

Virginia hits on a mulligan
 

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In a stunning revival, on Monday, the House of Delegates reconsidered and approved HB 5013, a bill that would let individuals sue law enforcement officers for violating their rights and eliminate “qualified immunity” as a legal defense. HB 5013, which died twice last week–first in committee and then on the House floor–will now head to the Senate, where a similar bill has already been rejected. 

...

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said Institute for Justice Nutjob Patrick Jaicomo, who submitted testimony in favor of the bill.  “For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. We urge the Senate to seize this historic opportunity to end this injustice. Any police reform bill is only meaningful if it includes reform to qualified immunity.”

 

 

 

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On 9/9/2020 at 5:17 AM, Cacoethesic Tom said:
On 9/4/2020 at 5:36 PM, Cacoethesic Tom said:

Virginia hits on a mulligan

Virginia Missed Again
 

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The Virginia Senate last week passed a comprehensive police reform package that would prohibit the use of no-knock warrants and chokeholds in the majority of cases and make it easier for departments to decertify rogue cops. One thing was noticeably absent, though: a ban on qualified immunity.

Qualified immunity makes it exceedingly difficult to sue public officials when they violate your rights, as it requires that any alleged misconduct be outlined almost identically in a previous court precedent. The doctrine has come under fire from all sides of the political spectrum. In June, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.) and several other Democratic members of Congress, introduced a bill in the U.S. House that would have abolished qualified immunity (though it has not received a vote and will likely die without one).

Virginia's House passed a separate bill to end qualified immunity earlier this month, but the legislation met its demise in the state Senate last Thursday. Interestingly, Virginia's governing bodies are both controlled by Democrats, which in theory should make it easy to abolish qualified immunity when considering that many high-profile Democrats and a hefty majority of the American public support ending the doctrine.

But Virginia Democrats' decision to punt on the issue puts them more in line with moderates in the Republican Party—a testament to the power of the law enforcement lobby.

"It's a big problem," said Sen. Scott Surovell (D–Fairfax). "I want to do something about it." But Surovell opposed the recent measure to end qualified immunity, and one need not look far to figure out why. Virginia lawmakers crafting the reform legislation met with police unions "probably six or eight times" and implemented amendments accordingly, said Wayne Huggins, executive director of the Virginia State Police Association, a union representing people in law enforcement, at a press conference last Thursday. "The greatest threat to our profession is the proposed elimination of qualified immunity," added Maggie DeBoard, the first vice president chief of the Virginia Association of Chiefs of Police, another police union. "There is a myth being perpetuated that qualified immunity protects bad cops. It does not, and it has not protected any of the bad cops that I have been a part of firing or separating in my 34 years in the job."

...

 

The union$ have $poken.

 

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Police Used an Unconstitutional Law to Arrest a Citizen-Journalist, and a Texas Court Let Them Off the Hook
 

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Since 2015, Priscilla Villarreal has operated as a one-woman news outlet. She cruises around her hometown of Laredo, Texas in her blue pick-up truck, seeking out crime scenes, traffic accidents, and immigration raids. Once she arrives, she livestreams the events to her Facebook page as they unfold, along with commentary that is sometimes critical of local law enforcement. She calls herself “Lagordiloca,” an endearing term that means “the big crazy lady” in Spanish, and she is arguably the most high-profile journalist on the streets of Laredo.

But though she is something of a folk hero in Laredo, her criticisms made her unpopular with the police. They began harassing and intimidating her, and ultimately issued a warrant for her arrest based on an obscure state law against “misuse of official information.” Essentially, they twisted the law to criminalize Villarreal’s routine newsgathering techniques. They cited two instances where she had asked a police officer to confirm information that she had already collected on her own. Pulitzer Prize-winning reporters do the same thing every day.

The law is rarely used to prosecute anyone and a judge tossed her criminal case three months later, ruling that the law was unconstitutionally vague.

But when Villarreal filed a civil lawsuit to remedy the retaliatory, premeditated violations of her constitutional rights, the federal trial court ruled against her relying on a doctrine called “qualified immunity.” Even though the law the police used to arrest her was clearly unconstitutional, the court let the officers off the hook.

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In addition to letting the police violate Villarreal’s constitutional rights without consequences, the trial court’s holding also rested on the premise that if a person asks for and receives newsworthy information from a government official who is not the government’s designated spokesperson, she can be arrested and prosecuted—even if the only thing she did was ask for and receive facts.

“That reasoning is dangerous to a free society because it permits the government to make itself the gatekeeper and arbiter of newsworthiness,” said IJ nutjob Anya Bidwell. “It threatens to chill core First Amendment activity and make us all less knowledgeable about government actions. In the brief we filed today, IJ urges the Court of Appeals to repudiate that holding.”

...

 

The article neglects to mention whether she flies a pink flag from her truck.

 

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On 9/17/2020 at 6:28 AM, Cacoethesic Tom said:

Virginia Missed Again
 

The union$ have $poken.

 

It's not just $ or even $$, sometimes they can be a lot more... direct. 

During the protests, here, DeBlasio stopped kissing NYPD ass, for about a minute. 

That same evening, his daughter got arrested at a protest, and the SBA chief tweeted her arrest report  -  which includes her home address. 

Next morning, DeBlasio got back on his knees, resumed tossing NYPD salad. 

 

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14 hours ago, frenchie said:

It's not just $ or even $$, sometimes they can be a lot more... direct. 

During the protests, here, DeBlasio stopped kissing NYPD ass, for about a minute. 

That same evening, his daughter got arrested at a protest, and the SBA chief tweeted her arrest report  -  which includes her home address. 

Next morning, DeBlasio got back on his knees, resumed tossing NYPD salad. 

 

I had the impression that the cops up there have always regarded him with suspicion at best. Was that wrong?

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22 hours ago, frenchie said:

It's not just $ or even $$, sometimes they can be a lot more... direct. 

During the protests, here, DeBlasio stopped kissing NYPD ass, for about a minute. 

That same evening, his daughter got arrested at a protest, and the SBA chief tweeted her arrest report  -  which includes her home address. 

Next morning, DeBlasio got back on his knees, resumed tossing NYPD salad. 

 

That'd do it... 

   There's a frat mentality, but some real issues behind it with cops. Bottom line is they have to detain people. That can get violent and some form of accommodation must be made in the laws or only fools would be cops. It's not all one way though. In the current situation the cops are going to fight back but they also are being forced to realize something is wrong. They know they can't do their job without the public giving them the benefit of the doubt. Public trust is essential for anything like tolerable working conditions. The smart ones, at least, are aware of this. 

 

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21 hours ago, Cacoethesic Tom said:

I had the impression that the cops up there have always regarded him with suspicion at best. Was that wrong?

He campaigned, originally, in part, on reforming the NYPD.  Was openly critical of Eric Garner's killing, sympathetic to protestors when Panteleano didn't get charged, and so on. 

Then, two cops got killed  -  sitting in their cruiser, crazy man walked up and opened fire on them.

The cops blamed DeBlasio's (and others') "anti-cop rhetoric" for the killings.  Turned their back on him at the hospital, and at the funerals.

He's been carefully licking that ass, ever since.

 

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13 hours ago, Mark K said:

That'd do it... 

   There's a frat mentality, but some real issues behind it with cops. Bottom line is they have to detain people. That can get violent and some form of accommodation must be made in the laws or only fools would be cops. It's not all one way though. In the current situation the cops are going to fight back but they also are being forced to realize something is wrong. They know they can't do their job without the public giving them the benefit of the doubt. Public trust is essential for anything like tolerable working conditions. The smart ones, at least, are aware of this. 

 

I'm not even sure the smart ones get it, at this point.  You have to stop being emotionally defensive, for a minute, for intelligence or rational thought to come into play.

 

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55 minutes ago, frenchie said:

He campaigned, originally, in part, on reforming the NYPD.  Was openly critical of Eric Garner's killing, sympathetic to protestors when Panteleano didn't get charged, and so on. 

Then, two cops got killed  -  sitting in their cruiser, crazy man walked up and opened fire on them.

The cops blamed DeBlasio's (and others') "anti-cop rhetoric" for the killings.  Turned their back on him at the hospital, and at the funerals.

He's been carefully licking that ass, ever since.

 

Has the cops' suspicion really subsided as a result of his efforts?

Things like reforming QI and asset forfeiture are often cast as "anti-cop" but that's not my intent. I think both would help with the public trust thing that Mark is talking about.

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17 hours ago, frenchie said:

I'm not even sure the smart ones get it, at this point.  You have to stop being emotionally defensive, for a minute, for intelligence or rational thought to come into play.

 

Takes some time for the shock to fade. Considering how many cops we have now were indoctrinated with Grossman-training it may take a significant amount of time. They have been trained to think and react one way...and now they have to accept all that stuff was wrong. 

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20 hours ago, Cacoethesic Tom said:

Has the cops' suspicion really subsided as a result of his efforts?

Near as I can tell  -  not even a little bit.  But as long as he toes the line, remembers who's really in charge, they leave well enough alone.

20 hours ago, Cacoethesic Tom said:

Things like reforming QI and asset forfeiture are often cast as "anti-cop" but that's not my intent. I think both would help with the public trust thing that Mark is talking about.

I agree, but I don't get the impression many cops do.  Criticism of the system is taken as a personal attack.  You're with them (no matter what), or you're against them.

Of course, it's quite possible a lot of them do agree, but keep quiet.  Nobody wants to end up getting left w/o backup & shot like Frank Serpico, or locked in a psych ward like Adrian Schoolcraft. 

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5 hours ago, frenchie said:

I agree, but I don't get the impression many cops do.  Criticism of the system is taken as a personal attack.  You're with them (no matter what), or you're against them.

Of course, it's quite possible a lot of them do agree, but keep quiet.  Nobody wants to end up getting left w/o backup & shot like Frank Serpico, or locked in a psych ward like Adrian Schoolcraft. 

I don't get nearly the amount of vituperative hatred over my opposition to the stupid drug war that I did in the 90's and early 2k's, so at least some denunciation of the system is more tolerable now, I guess.

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Noted SCOTUS contender Amy Coney Barrett Demolishes the Qualified Immunity Claim of a Detective Accused of Framing a Man for Murder
 

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After William Rainsberger was arrested for murdering his 88-year-old mother, he spent two months in jail before he was released on bail. A year later, prosecutors dropped the case, citing a lack of evidence. That decision was not surprising, because Rainsberger's arrest was based on a probable cause affidavit written by an Indianapolis detective who misrepresented crucial facts and omitted exculpatory information.

...

The detective, Charles Benner, nevertheless argued that Rainsberger could not sue him under 42 USC 1983, a federal statute that allows people to seek damages when government officials violate their constitutional rights. In a 2019 opinion, the U.S. Court of Appeals for the 7th Circuit demolished Benner's argument that he was protected by qualified immunity, a court-invented doctrine that limits such claims to cases in which officials are accused of violating "clearly established" law.

That opinion is of special interest to critics of qualified immunity—which in many cases has protected police officers from liability for shocking behavior—because it was written by 7th Circuit Judge Amy Coney Barrett, who is reportedly the leading contender to replace Ruth Bader Ginsburg on the Supreme Court. In addition to supporting legislation that would limit or abolish qualified immunity, its critics hope the Supreme Court will reconsider the doctrine in an appropriate case. While the 7th Circuit's decision in Rainsberger v. Benner does not reveal how Barrett would vote in such a case, it does suggest she is not the sort of judge who bends over backward to protect police officers accused of outrageous misconduct.

...

Between Benner's first and second affidavits, tests of Ruth's clothing and the blanket that was covering her head and shoulders found the DNA of two males. It did not match Rainsberger or his brother. Benner also left out that information.

"An officer violates the Fourth Amendment if he intentionally or recklessly includes false statements in a warrant application and those false statements were material to a finding of probable cause," Barrett noted. "An officer similarly violates the Fourth Amendment if he intentionally or recklessly withholds material information from a probable cause affidavit."

 

Barrett had little trouble concluding that police did not have probable cause to arrest Rainsberger without Benner's alleged lies. Without those, she said, the remaining evidence "supports nothing more than bare suspicion." She rejected "Benner's argument that he could have obtained a valid warrant if he had proceeded differently," saying that is "beside the point," since the question is not "whether an officer could have satisfied the Warrant Clause" but "whether he actually satisfied it."

Would it have been clear to a "reasonable officer" in this situation that his conduct was unlawful? Barrett thought it would.

Barrett was unimpressed by Benner's claim that "he is entitled to qualified immunity if the facts of the hypothetical affidavit [without the misrepresentations] demonstrate 'arguable probable cause'—in other words, if a competent officer faced with the facts in the hypothetical affidavit could reasonably if mistakenly believe that those facts were sufficient to establish probable cause." That argument "doesn't make sense," she noted, because qualified immunity depends on how a "reasonable officer" would have understood the law in the same situation, not in a counterfactual scenario.

"What Benner is really arguing, then, is that he is entitled to qualified immunity if a well‐trained officer could 'reasonably but mistakenly conclude' that it was
lawful to include an incriminating lie in an affidavit because the lie wasn't material to the probable cause determination," she wrote. "Of course, a competent officer would not even entertain the question whether it was lawful for him to lie in a probable cause affidavit. The hypothetical officer in the qualified immunity analysis is one who acts in good faith. That is what the standard of 'objective reasonableness' is designed to capture."

At this stage of the case, the allegations against Benner had already been enough to persuade a federal judge that the detective did not deserve qualified immunity. And unlike many plaintiffs in federal civil rights cases, Rainsberger did not have much difficulty locating precedents with closely similar facts. As Barrett noted, "The unlawfulness of using deliberately falsified allegations to establish probable cause could not be clearer." Still, Barrett's scathing dissection of Benner's arguments, combined with her opinions in other Fourth Amendment cases, is an encouraging sign for those of us who think judges defer to the police too much and too often.

 

The fact that we have a federal judge even addressing whether lying in a probable cause affidavit is OK illustrates the problem with qualified impunity.

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On 9/21/2020 at 12:47 AM, Cacoethesic Tom said:

I think both would help with the public trust thing that Mark is talking about.

Tom, hold on a minute. Do you consider yourself to be a builder of public trust?

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I guess the thread title should have been Public Official Qualified Immunity. The doctrine shows up in some strange places, as Bus Driver noted in the relevant thread.

15 hours ago, Bus Driver said:
On 11/7/2018 at 4:23 PM, Sean said:

Best result of the election -

https://www.nytimes.com/2018/11/06/us/politics/kim-davis-election-results.html

Excerpt -

Kim Davis, the Kentucky county clerk who defied the Supreme Court and was jailed in 2015 for her refusal to issue marriage licenses to same-sex couples, lost her re-election bid on Tuesday.

She also lost her appeal to have the Supreme Court weigh in.

High court won't take up ex-Kentucky clerk Kim Davis' case

The court was unanimous in rejecting Kim Davis' qualified immunity claim, but Thomas and Alito dissented from the rejection for other reasons.
 

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...Kim Davis v. David Ermold is not, on the surface, about gay marriage recognition itself. It's about qualified immunity, the legal principle that often shields government workers from personal civil liability when their behavior violates citizens' rights. Davis faces civil lawsuits over her refusal to issue marriage licenses. She attempted to argue that she was covered by qualified immunity, even though the Supreme Court had ruled in Obergefell v. Hodges, that states must recognize and permit same-sex marriages. The U.S. Court of Appeals for the Sixth District rejected this argument, meaning she could be personally sued and held liable in civil court for violating the rights of those whose marriages she refused to license.

Davis asked the U.S. Supreme Court to weigh in, and today it declined to hear her case. When the Supreme Court rejects a case, there is often no statement or explanation, but sometimes those who dissent from the majority decision will write separately to explain why they think the court should have heard the case. Today's orders include a response written by Thomas and joined by Alito. But they are not dissenting from the court's refusal to hear the Davis case. They agree with the majority decision to decline.

Thomas and Alito contend that the Court has still not properly dealt with the religious liberties of those who object to the legal recognition of same-sex marriage. "If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs," Thomas writes. He argues that the Obergefell decision cut off the opportunity for Kentucky to craft legislation that might have given both sides what they want—a way for same-sex couples to get their marriage licenses without religious objectors being forced to give their stamps of approval.

...

 

 

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On 9/2/2020 at 7:04 AM, Quotidian Tom said:

The case involving James King will be argued on November 9th.

Will U.S. Supreme Court Create Large Loophole for Officers and Officials Seeking to Escape Accountability?

I think the question is whether they will create another large loophole.
 

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...The case pits the U.S. Solicitor General—the federal government’s top appellate lawyer—against nutjobs from the Institute for Justice, which represents James King, an innocent college student who was brutally beaten and choked unconscious by plainclothes police.

James King's case will be heard a month from today.

The 6th circuit said that qualified immunity did not protect the officers who beat and arrested him.

The 6th also rejected an argument that dismissal of his case for technical reasons, without addressing the merits, is the same thing as addressing the merits.

The nutjobs at IJ will argue that addressing the merits requires actually, you know, addressing the merits.

Somehow, this nutty argument has attracted agreement from the ACLU.

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In amici’s view, the judgment bar does not apply. That bar, adopted against the backdrop of the common law claim preclusion doctrine, for the limited purpose of eliminating any “mutuality” requirements, necessarily incorporates the common-law understanding that only judgments on the merits have claim preclusive effect.

I think maybe a word was omitted or misplaced there at the end of that sentence but it's clear from the rest of their amicus brief that the ACLU thinks a ruling on the merits requires a ruling on the merits.

 

 

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Two congresscritters also chimed in as amici curiae.

Representatives Jamie Raskin and Mary Gay Scanlon are both TeamD but were somehow fooled into supporting the nutjobs from IJ in this case.

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Section 1346(b)(1) is, first and foremost, a jurisdictional instrument. Because dismissals under 1346(b)(1) are jurisdictional in character, they lack the preclusive effect of judgments based on the merits. According to the text and history of section 2676, Congress intended the judgment bar to operate in a similar fashion to the common law doctrine of res judicata, suggesting that Congress did not intend the judgment bar to trigger upon purely jurisdictional dismissals under 1346(b)(1), but only to preclude judgments on the merits of a plaintiff’s FTCA claim.

 

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1 hour ago, Quotidian Tom said:

Oh dear. I recently learned that an orchestrated chorus of amici is a sign of dark money corruption.

More importantly, it may be a fraud on the court.  Now that you've read Whitehouse's research, what is your opinion on the 'amici' mills?

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12 hours ago, MR.CLEAN said:

More importantly, it may be a fraud on the court.  Now that you've read Whitehouse's research, what is your opinion on the 'amici' mills?

The amici in this instance don't seem to corroborate his grandstanding at all.

The ACLU and two TeamD critters are tools of the vast right wing conspiracy?

If you've read their briefs and the respondent's brief from the nutjobs at IJ that they are supporting, do you think they're "amici mills?"

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Uh oh. It looks like the orchestrated chorus of amici in the VRWC is larger than the example case would indicate.

In Timbs v Indiana, the nutjobs at IJ managed to get lots of other notables.

The ACLU again, but also the Southern Poverty Law Center, the National Association of Criminal Defense Lawyers, the NAACP Legal Defense & Educational Fund Inc., the American Bar Association, among others.

Inexplicable. Must be the dark money, I guess.

 

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These 7th Circuit Decisions Suggest Amy Coney Barrett Takes a Constrained View of Qualified Immunity
 

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In the 2019 case Torry v. Chicago, by contrast, Barrett wrote an opinion that upheld qualified immunity for Chicago police officers who stopped "three black men in a grey sedan" while investigating a drive-by shooting half a mile from a high school in 2014. Those men—Marcus Torry, William Roberts, and Latrell Goss—had nothing to do with the shooting. They just happened to be in the neighborhood four hours later because Goss' car had broken down. The other two men picked him up and drove him to an auto parts store, passing the high school twice.

A weird wrinkle in this case is that the officers did not remember the stop. To justify it, they relied on reports about the shooting and a video of the encounter that Torry recorded with his cellphone. Witnesses to the shooting "had described three black men in a grey car," although "the descriptions of the car's model varied, and none was an exact match for the car that the plaintiffs were driving." The video "depicted Sergeant Robert King, the officer who initiated the stop, citing the plaintiffs' suspicious behavior in the area of the shooting as the reason that he had pulled them over."

The video shows that King explicitly described the incident as "a Terry stop," referring to the 1968 Supreme Court decision in Terry v. Ohio, which said the Fourth Amendment allows police to detain and question people based on "reasonable suspicion" of criminal activity. The Court also said police in those circumstances are allowed to pat people down for weapons, as the officers did in this case, if they reasonably suspect they are armed.

...

In two other 7th Circuit cases, Barrett voted to reject qualified immunity for correctional officers accused of constitutional violations.

...

 

So Thomas and Sotomayor may have some company on this issue, but that's still only 3.

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The technical and boring side of the orchestrated chorus of amici in the James King v Brownback case.
 

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“We are grateful for the support of all these outstanding groups and individuals,” said President and General Nutjob of the Institute for Justice Scott Bullock. “Their briefs make it clear that the government is taking an extreme position in this case, and its unorthodox reading of the Federal Tort Claims Act should be rejected. James must be allowed his day in court.”

 

 

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On 6/26/2020 at 6:01 AM, Quotidian Tom said:

Prison Guards Who Locked Naked Inmate in Cell Filled With 'Massive Amounts' of Feces Got Qualified Immunity
 

Hmm... I continue to share Justice Thomas' doubts about whether this is right.

The Supreme Court reversed that decision.
 

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Earlier today, the Supreme Court issued a decision rejecting a law enforcement officer's "qualified immunity" defense. Taylor v. Riojas was the first such Supreme Court ruling since 2004. That alone makes it significant. Whether the Court will take more forceful action to curb qualified immunity in future cases remains to be seen.

...

In Taylor, a 7-1 majority (the just-confirmed new Justice Amy Coney Barrett did not participate), concluded that the lower court had gone too far in granting qualified immunity to prison officials in an egregious case where they subjected a prisoner to horrific treatment:

...

At the same time, it's far from clear that the facts in this case are really that much worse than those in many other situations where courts have upheld qualified immunity defenses, such as recent cases where police officers stole $225,000 from civilians while conducting a search and shot a 10 year old boy in the course of an attempt to shoot the family dog (who posed no threat to the officer). If the Fifth Circuit expected too little of the "reasonable" officer, it may be because the courts—including the Supreme Court—have been defining "reasonability" down for a long time now.

...

It may be more likely that the Court wanted to send a message to lower courts, that the latter should no longer grant qualified immunity in these kinds of highly egregious cases. The backlash against qualified immunity generated by the public reaction to the death of George Floyd at the hands of Minneapolis police may have led the justices to conclude that a step like this was warranted.

...

Thomas' previous forceful criticism of qualified immunity  leads one to wonder why he dissented without opinion in this case. The answer may be that he thinks current precedent protects the officials in question, and therefore the Court cannot rule against them unless that precedent is modified or overruled (which he might well be happy to see happen).

Perhaps Taylor is the beginning of the end of qualified immunity. But it is also possible that the majority of the justices just want lower courts to adopt a modestly less forgiving interpretation of current doctrine. Future cases will tell.

...

 

I think that's a good guess as to why Thomas was the lone dissenter in this case.

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Reading the tea leaves of oral arguments...

Argument analysis: Two paths forward in lawsuit alleging unconstitutional police violence
 

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Justice Sonia Sotomayor framed it helpfully: There is the “jurisdictional argument” — that a dismissal for lack of subject-matter jurisdiction does not have preclusive effect. This was the basis for the 6th Circuit’s holding and constitutes the bulk of the government’s merits briefing on why the 6th Circuit was wrong. And then there is the “same case argument” King is pressing — that the FTCA judgment bar does not apply to claims filed within the same suit, which is an alternative basis to affirm the 6th Circuit’s ruling.

Michael Huston, assistant to the solicitor general, argued for the government. When he asserted that the FTCA judgment bar applies to claims in the same suit, Chief Justice John Roberts expressed doubt: “As you read the statute, the disposition of an FTCA claim bars Bivens claims against the employee. But, of course, the statute speaks of actions, not – not claims.”

Huston responded that Congress would have said “subsequent action” if it intended to bar only future suits, and that by using the phrase “any action,” Congress meant the term “to be essentially synonymous with ‘claim.’”

Sotomayor, along with Justices Elena Kagan and Brett Kavanaugh, seemed skeptical about this reading of the statute, with Kavanaugh again pointing out that “the key problem for you is [that the statute] says ‘any action,’ not ‘any claims.’”

However, it is unclear whether the court will ultimately reach the “same case” issue. Justices Clarence Thomas, Samuel Alito and Kavanaugh seemed hesitant about whether the court should consider the argument at all, given that it was not the basis for the 6th Circuit’s decision, the question presented did not frame it as the dominant issue in the case, and most circuits that have decided the issue have ruled against it, albeit in different ways.

...

 

 

 

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Beating a disturbed person to death does not get you qualified immunity, but watching it happen does because there's nothing obviously wrong about watching officers use excessive force (and helping a bit in ways that don't involve blunt force).
 

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Two officers who beat and ultimately killed a schizophrenic man—who had been subdued and who had not committed a crime—are not entitled to qualified immunity and can thus be sued over the incident, the U.S. Court of Appeals for the 5th Circuit ruled last week. 

The decision affirms the U.S. District Court for the Eastern District of Louisiana's ruling, which held that the pair violated Kendole Joseph's Fourth Amendment rights and used excessive force when they delivered 26 blunt-force blows to his face, back, chest, extremities, scrotum, and testes, resulting in his death two days later. 

But while the 5th Circuit agreed that Joseph's rights were also violated by a group of bystander officers—who watched the beating, with some participating in ways stopping short of blunt-force—they granted them qualified immunity.

...

Martin then put most of his 300-pound body weight on Joseph and tased him for 11 seconds, demanding he put his hands behind his back. How he could have complied while Martin was on top of him remains unclear. Nine other cops—as well as Thompson and Morvant—would go on to join Martin and Leduff in the convenience store, all to apprehend a man who did not pose a threat and who was not suspected of committing a crime.

Over the next several minutes, Martin beat Joseph with a baton, punched him in the face several times, and tased him again. Officer Duston Costa, one of the additional cops on the scene, kicked Joseph 12 or 13 times and punched him in the head repeatedly. The remaining officers, who had been observing and offering varying levels of assistance, helped hand

...

In combing through qualified immunity decisions, it would appear that the obviousness standard is indeed "sky high"—at least, as interpreted by the courts. Though there are several applicable examples, one is particularly instructive: Two cops received qualified immunity after allegedly stealing $225,000 while executing a search warrant. They "did not have clear notice that it violated the Fourth Amendment," wrote judges for the U.S. Court of Appeals for the 9th Circuit, as if stealing is not an obvious constitutional infringement. (Their opinion acknowledged that the officers "ought to have recognized that the alleged theft was morally wrong.")

According to Willett, the rigorousness of that standard is demanded by the Supreme Court, which, he says, "strictly enforces the requirement to identify an analogous case and explain the analogy." But it was the Supreme Court that, just three weeks prior, invoked the standard for obviousness when they reversed a lower court ruling granting qualified immunity. 

The decision they struck down came from the 5th Circuit.

...

 

11 cops beating and tasing Kendole Joseph, or just watching and helping, for several minutes seems pretty excessive to me. Perhaps even obviously excessive.

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ATF agent accuses Columbus police officers of excessive force

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Agent James Burk, a 16-year veteran of the ATF, said in the lawsuit he was working a "routine" assignment on July 7. That afternoon, he went to a home on the 3300 block of Edgebrook Drive near Dublin to retrieve a shotgun from someone who was not permitted to have a firearm. 

The lawsuit said Burk was in his normal work attire, which was described as "casual professional" with his credentials in a pocket and an ID card around his neck. 

When Burk knocked on the door of the home, a person inside called 911 and read the dispatcher Burk's badge number while refusing to open the door.

Agent James Burk, a 16-year veteran of the ATF, said in the lawsuit he was working a "routine" assignment on July 7. That afternoon, he went to a home on the 3300 block of Edgebrook Drive near Dublin to retrieve a shotgun from someone who was not permitted to have a firearm. 

The lawsuit said Burk was in his normal work attire, which was described as "casual professional" with his credentials in a pocket and an ID card around his neck. 

When Burk knocked on the door of the home, a person inside called 911 and read the dispatcher Burk's badge number while refusing to open the door.

"When Fihe arrived at the scene, Agent Burk stood outside the home's front door and waved the officer over to where he was standing," the lawsuit said. "Even though Agent Burk had both hands raised and had represented that he is a federal agent, officer Fihe immediately drew his weapon and pointed it ... while simultaneously screaming at (Burk) to get on the ground."

The lawsuit said Burk told Fihe and Winchell, who arrived a short time later and also drew his gun while ordering Burk to the ground, that his credentials were in his pocket. 

Fihe pointed his firearm at Burk for more than 90 seconds, according to the lawsuit, before both Fihe and Winchell "climbed on his back while violently twisting and pulling his arms to handcuff him."

The lawsuit said the officers also used a Taser on Burk multiple times while he was face down and "not evading arrest" before handcuffing Burk and placing him in the back of a cruiser, a process that involved pulling him into the car because a seatbelt was in the way. 

...

 

Hmm... I have a prediction about how this will end.

 

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I've brought up Tanzin v Tanfir in the "no fly list" thread because that seemed most relevant but now a couple of nutjobs have gotten an article into USA Today saying the case is the beginning of the end of qualified immunity.

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This month, the United States Supreme Court issued a remarkable opinion that could pave the way to repealing qualified immunity. That doctrine — which shields government workers from accountability when they violate the constitution — relies on the policy that government workers should rarely be subject to lawsuits for money damages. But in Tanzin v. Tanvir, a unanimous Supreme Court said that it is not its business to do policy. In addition, it held that damages are not only an appropriate remedy against government workers who violate the Constitution, but that “this exact remedy has coexisted with our constitutional system since the dawn of the Republic.” 

The case involves a group of Muslim men who, following the dictates of their faith, refused to cooperate with the FBI and spy on their communities. In retaliation, FBI agents placed the men on the No Fly List, robbing them of the ability to travel to see family or for work. Muhammad Tanvir, for example, lost his job as a long-haul trucker because it required him to fly cross-country after finishing deliveries.

...

The Supreme Court created qualified immunity in 1982 to shield White House aides in the Nixon administration from a constitutional lawsuit. As its main justification, the Court relied on something it was not supposed to — policy. According to the Court in 1982, the availability of money damages against government workers would lead to negative policy outcomes: people would not take government jobs, and if they did, they would be distracted or afraid to act. To avoid those expected (and since disproven) policy outcomes, the Court created qualified immunity, which effectively overrode the constitution, shielded government workers from liability, and left the victims of constitutional violations to bear the cost.

That’s how things stood until earlier this month.

In a historic decision, the Supreme Court not only embraced damages as an appropriate and traditional remedy for violations of constitutional rights, but also rejected the government’s invitation to consider policy arguments in order to deny plaintiffs their day in court. Justice Thomas wrote for the unanimous Court that while there “may be policy reasons why Congress may wish to shield Government employees from personal liability ... there are no Constitutional reasons why we must do so in its stead ... Our task is simply to interpret the law as an ordinary person would.” 

...

 

 

 

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At work last week, one of the cashiers was saying Thomas has never written a single non-garbage decision. 

I said to look up his positions on Qualified Immunity. 

Passing along the response, from when we worked together this weekend: "thanks for the schooling, dude". 

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2 hours ago, frenchie said:

At work last week, one of the cashiers was saying Thomas has never written a single non-garbage decision. 

I said to look up his positions on Qualified Immunity. 

Passing along the response, from when we worked together this weekend: "thanks for the schooling, dude". 

Interesting choice of example. My favorites from him were in Gonzalez v Raich and Kelo v New London.

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Thomas saves the best for his race decisions. The Flowers dissent is gold. He should be impeached and removed for failing to uphold precedent. 

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11 hours ago, Polytelum Tom said:

Interesting choice of example. My favorites from him were in Gonzalez v Raich and Kelo v New London.

I didn't cite a specific case, just that Thomas has a record of skepticism about the current state of affairs. 

I've seen the guy wearing a BLM shirt, so I know he cares about QI.  I have no idea how he feels about federal vs state balance of powers & the commerce clause, or imminent domain.

 

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16 hours ago, MR.CLEAN said:

Thomas saves the best for his race decisions. The Flowers dissent is gold. He should be impeached and removed for failing to uphold precedent. 

Unless a SCOTUS decision is overturning a precedent, isn't any dissent "failing to uphold" by definition?

 

4 hours ago, frenchie said:

I've seen the guy wearing a BLM shirt, so I know he cares about QI.  I have no idea how he feels about federal vs state balance of powers & the commerce clause, or imminent domain.

It's eminent, and it's about race too. Thomas, dissenting in Kelo:

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Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman, cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id., at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id., at 28—29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U.S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects.

 

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I wonder if Tremaine Hicks can sue and win?

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A woman had been pistol-whipped, dragged into an alleyway behind what was then St. Agnes Hospital in South Philadelphia, and raped — until the rapist was startled and fled the scene. Hicks heard her screams and rushed to help. But, seconds later, police officers arrived, took him for the rapist and shot him three times. Hicks survived, but was charged with the rape and sentenced to 12½ to 25 years in prison.

On Wednesday, after 19 years’ incarceration, Hicks, 45, was, at last, exonerated.

The Philadelphia District Attorney’s Conviction Integrity Unit agreed with Hicks and his lawyers, civil-rights attorney Susan Lin, and the Innocence Project, that the case was built on lies — possibly to cover up the unjustified shooting — that were contradicted by newly analyzed and compelling forensic evidence.

Police Officer Martin Vinson said he shot Hicks in the chest or stomach as Hicks was pulling a gun from his pocket and lunging toward him. Hicks said the officer shot him in the back as he was reaching into his pocket for his phone to call 911. Both a forensic analysis of Hicks’ medical records and a review of his clothing — with bullet holes in the back, but none in the front — supported Hicks’ account, according to the city’s chief medical examiner.

Potkin said further evidence suggests police planted the gun they said they retrieved from his jacket pocket. She noted that the gun was smeared with blood, while the inside of Hicks’ coat pocket was clean.

“He has always maintained that he arrived at the scene when he attempted to help the victim,” she said. “He had his hand in his pocket because he was going to attempt to call the police when they arrived and shot him in the back. Police claimed that Mr. Hicks had a gun on him as part of their effort to cover up the circumstances of the shooting, but the weapon that was attributed to Mr. Hicks was registered to an active Philadelphia police officer.” The officer had not reported the gun missing.

...

 

So the real question is whether cops had any way of knowing about a prior court decision finding that unjustifiably shooting a person and then framing him for a crime was wrong. If no one did that particular thing in exactly that way before, they would have had no clue that it was wrong and would be entitled to qualified impunity.

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On 2/8/2020 at 7:20 AM, Polytelum Tom said:

Prosecutor Qualified Immunity?
 

As usual, I'm happy to see ACLU Inc exercising its corporate first amendment right to express itself politically by filing civil rights lawsuits.

I don't think illegally issuing subpoenas or illegally imprisoning people is part of a prosecutor's official duties.

The Supreme Court of Georgia smacked Nancy Grace, my old colleague, for issuing subpoenas to a nonexistent hearing.  A man tried for killing his wife walked free. She went on to become a celebrity of sorts.

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On 12/27/2020 at 7:47 AM, hasher said:

The Supreme Court of Georgia smacked Nancy Grace, my old colleague, for issuing subpoenas to a nonexistent hearing.  A man tried for killing his wife walked free. She went on to become a celebrity of sorts.

That's nice, I guess. Is there some kind of point to it?

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4 minutes ago, Polytelum Tom said:

That's nice, I guess. Is there some kind of point to it?

Nope.

I was spouting off to the universe.  No intelligent thought came back.

I hope you can feed yourself. 

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Qualified Immunity: A Legal, Practical, and Moral Failure

That's way longer than most have the patience to read but this part was interesting and features a sailboat picture.

 

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In the Founding Era, constitutional claims would typically arise as part of suits to enforce general common‐law rights. For example, an individual might sue a federal officer for trespass; the defendant would claim legal authorization to commit the alleged trespass in his role as a federal officer; and the plaintiff would, in turn, claim that the trespass was unconstitutional, thus defeating the officer’s defense.8 And as many scholars over the years have demonstrated, these Founding Era lawsuits did not generally permit a good‐faith defense to constitutional violations.9 Rather, the background legal assumption at this time was that government agents were, in general, strictly liable for constitutional violations that gave rise to common‐law torts.10

The clearest example of this principle comes from the 1804 Supreme Court case Little v. Barreme.11 That case involved a claim against an American naval captain, George Little, who captured a Danish ship off the French coast in 1799, during the Quasi‐War with France. Federal law authorized seizure only if a ship was going to a French port (which this ship was not), but President Adams had issued broader instructions to also seize ships coming from French ports. The question was whether Captain Little’s reliance on these instructions was a defense against liability for the unlawful seizure.

USS_Boston_(1799).jpg?itok=Jv_G5WMq

Shown is an engraving of USS Boston in the Mediterranean, circa 1802, by Jean‐Jérôme Baugean.

The opinion by Chief Justice John Marshall illustrates how the Little Court seriously considered, but ultimately rejected, the very rationales that would later come to support the doctrine of qualified immunity. Marshall explained that “the first bias of my mind was very strong in favour of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages.”12 He noted that the captain had acted in good‐faith reliance on the president’s order, and that the ship had been “seized with pure intention.”13 Nevertheless, the Court held that “the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.”14 In other words, the officer’s only defense was legality, not good faith.

This “strict rule of personal official liability, even though its harshness to officials was quite clear,” persisted through the 19th century. ...

 

 

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On 8/3/2020 at 4:38 AM, Polytelum Tom said:

New Connecticut Law Limits Police Immunity In Civil Rights Lawsuits, But Loopholes Remain
 

The "good faith belief" standard seems to me a big improvement over the current one.

Colorado's "loser pays" standard for legal fees seems better to me.

One of the linked articles also mentions that the new bill requires dash and body cameras, so that's good. It also mentions that the current Senate leader is named "Looney" which is kinda funny.

Connecticut report on those loopholes is out

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