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Police Qualified Immunity


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Prison Guard Who Hid While Inmate Raped a Nurse Cannot Be Sued, Federal Court Rules
 

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A federal court has ruled that a prison guard who flouted protocol and unshackled an inmate, who then terrorized a local hospital, cannot be sued in connection with the incident.

Writing for a unanimous three-judge panel, Judge Frank H. Easterbrook of the U.S. Court of Appeals for the 7th Circuit Court ruled that while the officer, Shawn Loomis, is a "feckless coward," current case law has not "clearly established that permitting a prisoner to escape violates the Constitution." Loomis is thus protected by qualified immunity, a legal doctrine which effectively holds that public servants can only face civil suits if the conduct in question has explicitly been ruled unconstitutional in an earlier case.

On May 8, 2017, Tywon Salters, an inmate at the Kane County Jail, drank hydrogen peroxide and ate a jail-issued sandal in an apparent suicide attempt. He was then transferred to the Delnor Community Hospital and put under Loomis's supervision. Loomis unshackled Salters on multiple occasions, leaving him unsupervised and allowing him to walk around the hospital without restriction. On May 13, during one such instance, Loomis removed Salters's restraints for at least 30 minutes; the inmate then stole Loomis's handgun, which was not holstered. Loomis failed to subdue Salters, and did not alert hospital security personnel of the situation. Instead, Loomis ran and hid in a closet.

...

 

Cops do some things in the course of their work that would be crimes if they were not doing their job. Some protection while doing their job is reasonable.

But that should apply while doing their job. Loomis clearly was not doing his job.

I searched the forum for relevant discussion prior to starting this thread.

QualifiedImmunity.jpg

Milliken was quoting something I posted, Regatta Dog was posting an excerpt from an article.

Since this is clearly not a topic of much interest, let me just add something that is interesting: dogballs.

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If cops aren't held accountable mistrust spreads in the population, which in the end endangers both cops and ordinary citizens.

I guess there's a reason it isn't called unqualified immunity. 

The 5th Circuit Got One Right    

Posted Images

3 hours ago, Fat Point Jack said:

Would the "Qualified Immunity" apply to the husband and wife that in their "civilian" life supplied the bullets to the Fat Point librarian shooter?

I don't know.

We have "a legal doctrine which effectively holds that public servants can only face civil suits if the conduct in question has explicitly been ruled unconstitutional in an earlier case."

I don't think supplying bullets has been ruled unconstitutional.

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Does Letting Police Enter Your House Give Them Permission To Wreck It?
 

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When Shaniz West agreed to let police enter her house so they could arrest her former boyfriend, she had no idea she was consenting to a barrage of tear gas grenades that would smash her windows, tear holes in her walls and ceiling, and leave a sticky, noxious residue on her food, furniture, electronics, and clothing. But after she sued for damages, the U.S. Court of Appeals for the 9th Circuit said the officers responsible for making her home uninhabitable were shielded from liability because it was not "clearly established" at the time that such a wanton destruction of property violated the Fourth Amendment.

In a petition filed today, the Institute for Justice urges the U.S. Supreme Court to review that decision and in the process clarify the doctrine of "qualified immunity," which in many cases lets police off the hook for outrageous conduct when their victims are unable to identify prior rulings involving similar facts. That understanding of the doctrine effectively immunizes officers who find novel ways to violate people's constitutional rights.

...

 

The issue in Shaniz West's case is similar to the one in Lech v Greenwood.

 

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The Shaniz West case is part of a larger Project On Immunity And Accountability undertaken by the nutjobs at IJ.
 

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...Qualified immunity was originally pitched as a way to make sure government officials received fair warning of what they were not allowed to do. The notion of “clearly established” law has now turned into a kind of perverse game: Unless a plaintiff can point to a court decision saying that doing a specific thing in a specific way violates the law, courts generally apply qualified immunity and the official is immune from accountability. Even if every reasonable person would agree that what the official did was illegal, the official’s victims find themselves out of luck.

...

The upshot of all this is a rule that says government officials can violate your rights with impunity—so long as they do so in a way no one has ever done before. And, perversely, that means that the most outrageous rights violations are the ones that are least likely to be punished: One court, for example, held that officers accused of stealing over $225,000 were entitled to “qualified immunity” and couldn’t be sued. According to the court, “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Therefore, immunity applies, because even though, as the court conceded, “virtually every human society teaches that theft generally is morally wrong,” it was not “obvious” the officers were in the wrong legally.

In another court, a panel of judges ruled that police officers who sicced a dog on a suspect who was sitting down with his hands up were entitled to qualified immunity because—while an earlier case had held that officers were not allowed to sic a dog on someone lying down—no case had ever discussed whether they could do so to a suspect who was sitting down with his hands up.

...

 

 

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Prosecutor Qualified Immunity?
 

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Orleans Parish District Attorney Leon Cannizzaro issued fake subpoenas to pressure victims and witnesses to testify. Now facing a lawsuit, the Louisiana prosecutor is arguing that the practice falls under the umbrella of absolute immunity—the doctrine that says prosecutors cannot face civil action for carrying out their official duties.

The good news is that there's a strong chance the courts won't buy it.

The Lens uncovered Cannizzaro's tactic in April 2017. He would send people notifications telling them to appear in court or face fines or jail time. The documents were neither authorized by a judge nor issued by a county clerk, the proper channels for subpoenas. Cannizzaro's office was producing them itself. Worse yet: Even though the subpoenas were unlawful, he really did jail people who didn't obey them.

In October 2017, the American Civil Liberties Union sued Cannizzaro and some of his staffers on behalf of the people who received the subpoenas.

...

 

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.

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3 hours ago, Plenipotentiary 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.

Are you talking about this suit?    Where is the ACLU on the plaintiff list?

 

 

 

Screen Shot 2020-02-08 at 10.36.40 AM.png

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3 hours ago, Plenipotentiary Tom said:

ACLU Inc exercising its corporate first amendment right to express itself politically by filing civil rights lawsuits.

 

Also, you seem to be operating under the impression that the first amendment provides their standing.  Why do you incorrectly think this?

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On 1/17/2020 at 5:22 AM, Plenipotentiary Tom said:

Does Letting Police Enter Your House Give Them Permission To Wreck It?
 

The issue in Shaniz West's case is similar to the one in Lech v Greenwood.

 

Live and learn.

  Letting someone in to forcibly remove someone carries the risk of extensive damage. As much as I disapprove of modern force protection doctrine dominating the training of officers today it's problematic to demand such tasks be carried out without any collateral damage...and that any and all collateral damage is always the fault of the police if it occurs.

  Don't get me wrong here, I sympathize the wrong in this, I comment about the difficulties involved with striking precisely the right note in legal suits designed to address this condition. I merely see it as an attempt to solve the wrong problem perfectly. The symptom, not the disease. 

 

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8 hours ago, MR.CLEAN said:

Are you talking about this suit?    Where is the ACLU on the plaintiff list?

 

 

 

Screen Shot 2020-02-08 at 10.36.40 AM.png

Yes, I am.

Did the Institute for Justice bring the Kelo case? I didn't see their name on the plaintiff list.

Similarly, the document you linked says this:
 

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Respectfully submitted this 17th day of October, 2017,

/s/Anna Arceneaux

/s/Katherine Chamblee

-

Ryan

Anna Arceneaux*

Katherine Chamblee

-

Ryan*

*

American Civil Liberties Union Foundation

Alec

Karakatsanis*

201 West Main Street, Suite 402

Civil Rights Corps

Durham, NC 27701

910 17th Street NW

Tel. (919) 682

-

5

6

59

Washington, D.C. 20006

aarceneaux@aclu.org

 

Sorry the formatting is fucked and I don't feel like fixing it, but it sure looks to me like this was respectfully submitted by someone whose email ends in @aclu.org, so I suspect the article is right that the ACLU sued in this case.

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3 hours ago, Mark K said:

Live and learn.

  Letting someone in to forcibly remove someone carries the risk of extensive damage. As much as I disapprove of modern force protection doctrine dominating the training of officers today it's problematic to demand such tasks be carried out without any collateral damage...and that any and all collateral damage is always the fault of the police if it occurs.

  Don't get me wrong here, I sympathize the wrong in this, I comment about the difficulties involved with striking precisely the right note in legal suits designed to address this condition. I merely see it as an attempt to solve the wrong problem perfectly. The symptom, not the disease. 

 

Seems to me the forcible removal is a public action so the public should be assuming the associated risk, not shunting it off to a private party who happened to be in the way.

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On 2/8/2020 at 4:22 PM, Plenipotentiary Tom said:

Seems to me the forcible removal is a public action so the public should be assuming the associated risk, not shunting it off to a private party who happened to be in the way.

They were asked to enter private property by a resident.  

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On 10/26/2019 at 4:05 AM, Plenipotentiary Tom said:

 

Since this is clearly not a topic of much interest, let me just add something that is interesting: dogballs.

(^^^ he hate the dogballs)

The joke is on you pal, cuz you earned the name. You became a nuisance for 23 months...and the rest is dogballs. (With full-on race-baiting, I might add.)

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6 hours ago, Mark K said:

They were asked to enter private property by a resident.  

Is that your understanding of this?
 

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The case began on a Wednesday afternoon in August 2014, when West returned to her home in Caldwell, Idaho, and encountered four local police officers. They were looking for her ex-boyfriend, Fabian Salinas, a gang member wanted for several violent crimes. West said Salinas had been in the house earlier that day, collecting his belongings, and she was not sure whether he was still there. It turned out he wasn't, but the cops did not realize that until after they had wreaked havoc on West's home.

After intimating that West might be arrested for harboring a fugitive, Officer Matthew Richardon asked, "Do we have permission to get inside your house and apprehend him?" West nodded, handed over the key to her front door, and left with a friend who came to pick her up.

 

Seems to me she did not ask them to enter her property. They threatened her with arrest to gain consent.

If cops threaten you with arrest to gain consent to enter your house, have you asked them to enter?

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6th Circuit: This Man Can Sue the Cop Who Arrested Him for Defending His Daughter Against a Feral Cat
 

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After a neighbor called 911 and falsely reported that Dwain Barton had killed a cat, a local police officer charged through a screen door into Barton's house without a warrant and injuriously manhandled him while arresting him for animal cruelty, a charge that was eventually dismissed. When Barton sued the officer, Dean Vann, for violating his Fourth Amendment rights, a federal judge concluded that Vann was protected by "qualified immunity," which shields police from liability when their actions do not run afoul of "clearly established" law. Last Friday, the U.S. Court of Appeals for the 6th Circuit overturned that ruling, concluding that Barton should have an opportunity to prove his claims against Vann.

...

Barton sued Vann under 42 USC 1983, which allows people to recover damages when a government official violates their constitutional rights under color of law. Barton argued that Vann illegally entered his home without a warrant, arrested him without probable cause, and used excessive force during the arrest. Vann claimed he was protected by qualified immunity, and U.S. District Judge George Caram Steeh III granted his motion for summary judgment.

Steeh concluded that Vann was justified in entering the home based on "exigent circumstances," since "it was reasonable for Officer Vann to believe that Barton was armed, and that he was willing to use his weapon to harm the officers or others." Steeh also concluded that "Officer Vann had probable cause to believe that Barton had violated a local animal cruelty ordinance" and that "Barton fails to create a genuine issue of material fact on his excessive force claim" because he did not present sufficient evidence that Vann injured him during the arrest.

A unanimous 6th Circuit panel of three judges saw things differently. "Based on the facts alleged and the evidence produced, viewed in the light most favorable to Barton, a reasonable juror could find that Vann violated Barton's Fourth Amendment rights to freedom from warrantless entry into his home, use of excessive force, and arrest without probable cause," Judge Julia Smith Gibbons wrote. "These violations were of clearly established law." The court therefore rejected Vann's claim of qualified immunity.

 

We'll see what a jury has to say about it.

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19 hours ago, Plenipotentiary Tom said:

Is that your understanding of this?
 

Seems to me she did not ask them to enter her property. They threatened her with arrest to gain consent.

If cops threaten you with arrest to gain consent to enter your house, have you asked them to enter?

No. I'd tell them that if they arrest me they will have to go get themselves a warrant.  

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5 hours ago, Mark K said:

 No. If he or she had no issues with getting a warrant that conversation wouldn't have happened.

You mean the conversation where she was threatened with arrest if she didn't allow entry?

 

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IJ Asks U.S. Supreme Court to Hold State/Federal Task Forces Accountable For Constitutional Violations
 

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In 2014, James King was a law-abiding college student who was brutally beaten and choked unconscious by members of a joint state/federal police task force after they misidentified him as a suspect sought in connection with a non-violent petty crime. Ever since that day, the government has used every tool at its disposal to ensure those officers are not held accountable to the Constitution.

The Institute for Justice (IJ) now represents James in the appeal of his case to the U.S. Supreme Court, where the government has asked for yet another special protection for the officers while James seeks justice not only for himself, but all victims of abuse committed by joint state/federal task forces.

As IJ Attorney Patrick Jaicomo explained, “The Fourth Amendment prevents the government from undertaking unreasonable searches and seizures. Here, at every step of the way, the officers were unreasonable in searching and seizing James, including when they beat him. We filed this lawsuit in 2016. It’s now 2020 and the government still hasn’t even filed an answer addressing all the claims that we’ve raised. Instead, they’ve spent the past four years filing different motions with courts, arguing under technicalities why they shouldn’t be held accountable rather than explaining why what they did actually wasn’t wrong.”

One of those technicalities is called “qualified immunity,” a special legal protection the Supreme Court created in the 1980s to protect government officials.  Under qualified immunity, officers can violate the Constitution unless previous court rulings have explicitly prohibited that exact action by the police—a standard that has become nearly impossible to meet.

...

After the trial, James filed a lawsuit against the officers for violating his rights, but the system employed yet another means—what amounts to a shell game—to shield the officers from accountability. The government argued James’ case had to be dismissed because, although the officers were executing a Michigan warrant against a Michigan resident for a Michigan crime committed in Michigan (there was no federal crime), the officers had not abused state power because, as task force members, they were acting under federal power. And because Michigan provided the federal government with immunity for actions like those committed by the officers, the officers could not be held liable for abusing federal power either. The government also argued that the officers, even if liable for abusing state and federal power, were entitled to qualified immunity—a court-created doctrine that allows government officers to violate the Constitution as long as a court has not already held that the officers’ specific acts are unconstitutional.

The trial court agreed and dismissed James’ entire case.  The 6th U.S. Court of Appeals, however, reversed the trial court in every way but one: It said James could only argue that the officers violated federal—not state—power.

“If an officer has both state and federal powers, he should be more—not less—accountable to the Constitution,” said IJ President & General Counsel Scott Bullock.

...

 

It's too bad that James King can't find some credible legal representation, but IJ has won 5 of 6 cases argued before the Supreme Court so I guess they'll have to do.

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From Short Circuit

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Attala County, Miss. police find incoherent, mentally infirm man eating chicken in middle of highway. Per "local unwritten custom of ousting those perceived as vagrants from the jurisdiction," officer takes the man to the county line and drops him off along the highway at dusk. A motorist strikes and kills the man. Fifth Circuit (July 2019): Everybody knows police can't do that. The man's family can sue the officer. Fifth Circuit (same panel, Feb. 2020): Original opinion withdrawn. The officer gets qualified immunity.

Wow. I haven't read the new opinion but thought qualified immunity was supposed to protect officers doing their jobs.

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Without that qualified immunity only fools would become cops, Tom.  The cops have to do the wet and dirty work of physically controlling people. 

 The check on that is our existing civil courts, which have been highly successful in getting at the deep-pockets, the municipalities who employ cops. Check out the millions and millions that large municipalities have to fork over when their cops misbehave or screw up. Poorly trained cops are very, very expensive. 

  These cases attempt to attack the cop personally which lets their bosses off the hook. 

 You guys sure this is the right tack?? 

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5 minutes ago, Mark K said:

Without that qualified immunity only fools would become cops, Tom.  The cops have to do the wet and dirty work of physically controlling people. 

I get that and wouldn't do away with it entirely, but...

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Under qualified immunity, officers can violate the Constitution unless previous court rulings have explicitly prohibited that exact action by the police—a standard that has become nearly impossible to meet.

In the topic case, for example, can't we just decide that hiding in a closet while an inmate raped someone is wrong, even if no court has explicitly prohibited that exact behavior before?

It's the impossible standard, not the doctrine itself, that is troubling.

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15 minutes ago, Plenipotentiary Tom said:

I get that and wouldn't do away with it entirely, but...

In the topic case, for example, can't we just decide that hiding in a closet while an inmate raped someone is wrong, even if no court has explicitly prohibited that exact behavior before?

It's the impossible standard, not the doctrine itself, that is troubling.

 I don't see anyone asserting hiding in a closet while an inmate is raped is right. Wrong and right is not determined only by the throwing of a cop in jail. It is troubling but I see no way to define "qualified immunity" except in a case-by-case basis. 

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5 hours ago, Mark K said:

 I don't see anyone asserting hiding in a closet while an inmate is raped is right. Wrong and right is not determined only by the throwing of a cop in jail. It is troubling but I see no way to define "qualified immunity" except in a case-by-case basis. 

I could go along with that.

So what if a case comes up and we haven't seen an explicit ruling on exactly the same circumstances?

"QI automatically applies" is the current answer. I think it's immunizing cops who are not doing their jobs and who are doing things that are not even legal. That's why the original 5th circuit ruling above was summarized "Everybody knows police can't do that."

Application of QI is fine with me and necessary if we're to have cops, as long as we're talking about cops who are doing their jobs.

An added benefit of this approach would be that it gives good cops another good reason to like cameras.

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2 hours ago, Plenipotentiary Tom said:

I could go along with that.

So what if a case comes up and we haven't seen an explicit ruling on exactly the same circumstances?

"QI automatically applies" is the current answer. I think it's immunizing cops who are not doing their jobs and who are doing things that are not even legal. That's why the original 5th circuit ruling above was summarized "Everybody knows police can't do that."

Application of QI is fine with me and necessary if we're to have cops, as long as we're talking about cops who are doing their jobs.

An added benefit of this approach would be that it gives good cops another good reason to like cameras.

True. I suppose cops have to be dragged into court from time to time just get the cases needed to sort what qualifies and what doesn't out.  No other way, practically speaking.    

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Several qualified immunity items in this week's Short Circuit

 

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Nashville, Tenn. officer, responding to an alarm at a night club, arrests man outside, declines to investigate man's story that he spent the night working in the club and his belongings are locked inside. (Criminal charges are dropped.) A Fourth Amendment violation? Although the officer was "either mentally deficient or dishonest" during deposition, the district court grants the officer qualified immunity. But the Sixth Circuit reverses, explaining that the officer's refusal to consider the circumstances was the "antithesis of probable cause." But the dissent argues that the officer should be forgiven because it was late at night and cold outside; it's the club manager who's to blame.

and:

Battle Creek, Mich. officer, responding to reports of an armed man at a drive-thru liquor store, finds a teenage boy armed with a black BB gun. In a two-second flurry, the boy discards the gun and the officer shoots the boy. The precise sequence of events is disputed. Sixth Circuit: Because everything happened so quickly, the officer gets qualified immunity. Dissent: "It should go without saying that reasonable police officers do not shoot disarmed young boys with upraised hands."

and:

After pulling a woman over for a busted taillight, LAPD officers arrest her for an outstanding warrant. She informs them that, due to a shoulder injury, she cannot place her hands behind her back. They ignore this and her cries of pain, handcuff her behind her back. Excessive force? District court: Qualified immunity—no case says cops can't do that. Ninth Circuit: Uh, no. We've said for more than 20 years that cops can't handcuff a suspect in a way to cause pain if there's no immediate threat. Might've violated the Americans with Disabilities Act, too.

and:

Wichita, Kan. police shoot and kill an unarmed man as he walks to a parking garage after last call. Police say the man had a gun, and they saw him shoot it. Everyone else says he didn't and, therefore, couldn't. Medical experts say the police shot that man at least three times while he was lying face down on the ground. Tenth Circuit: The officers are entitled to qualified immunity for (1) shooting an unarmed man and (2) failing to warn him before they opened fired. But no qualified immunity for (3) shooting while the man posed no threat, lying on the ground. Dissent: "The Constitution clearly prohibited both officers from shooting an unarmed individual posing no threat to anyone."

 

As mentioned above, I have no problem with qualified immunity for an officer doing his job. Can an officer who is "either mentally deficient or dishonest" be doing his job?

As for the second item, it illustrates the problem here. Nothing can go without saying. If it hasn't been said, it doesn't go.

As for the third one, I'm glad the 9th Circuit can at least recognize what has been said.

I can at least agree with the 10th Circuit on item 3 above.

 

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11 hours ago, Plenipotentiary Tom said:

Qualified Privilege is kinda similar

but apparently doesn't work if the "documents are so stale that their production will not in any way undermine legitimate law enforcement objectives."

The photos of what he did aren't stale. Sat outside a neighborhood looking like this: 

 8028_main.jpg

 

I suppose some feel having something like this wandering around your house is perfectly normal, and would never think of leaning on the cops to find some way to get this nut-job packing serious heat to find somewhere else to stroke his gun. 

Some, mind you, only some.  

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6 hours ago, Mark K said:

The photos of what he did aren't stale. Sat outside a neighborhood looking like this: 

 8028_main.jpg

 

I suppose some feel having something like this wandering around your house is perfectly normal, and would never think of leaning on the cops to find some way to get this nut-job packing serious heat to find somewhere else to stroke his gun. 

Some, mind you, only some.  

A nutjob packing seriously unloaded heat probably belongs in Red Flag Anarchy.

Do you think the judge was wrong about this?
 

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Bertini's declaration is so lackluster, the Court could overrule the City's privilege claim on this ground alone. Indeed, Kelly holds that the Court should do exactly that and not even bother with an in camera review if the defendant's affidavit is insufficient.

But in an abundance of caution, the Court has conducted an in camera review of the documents at issue. They contain some information that was sensitive eight years ago, such as planned visits to the area by a presidential candidate and the Secretary of Defense. There are also law enforcement updates on then-recent events, suspicious activities, and assessments of security threats to the 2012 election. None of the documents are classified. These documents are so stale that their production will not in any way undermine legitimate law enforcement objectives. Because the documents have the names of specific people in them, including law enforcement officers and others, they should not be posted on the internet for the whole world to see, but there isn't anything in them that justifies not giving them to Zeleny … subject to an appropriate protective order.

 

 

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10 hours ago, Mark K said:

How does one judge that without reading the docs in question? 

That should be possible if you're interested. Decided 2/28, but I'm not sure if the court meant seven days or seven week days.
 

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The Court OVERRULES the City's privilege objection and ORDERS it to produce these documents, subject to an appropriate protective order. Within seven days the parties shall file a jointly proposed protective order, or they shall file competing proposed orders and a joint discovery letter brief, not to exceed five pages, arguing for their respective positions.

IT IS SO ORDERED.

 

 

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3 hours ago, Plenipotentiary Tom said:

That should be possible if you're interested. Decided 2/28, but I'm not sure if the court meant seven days or seven week days.
 

 

Does interest remove the need for facts and information? 

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On 3/7/2020 at 12:34 PM, Mark K said:

Does interest remove the need for facts and information? 

Apparently it does for those "subject to an appropriate protective order." I guess the question boils down to whether a judge can be trusted to rule fairly.

It turns out that it is possible to overcome qualified immunity

A Wrongfully Convicted Kansas Man Can Now Sue the Corrupt Cop Who Framed Him
 

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Kansas man Lamonte McIntyre served 23 years in prison for murders that he did not commit. Last week, a federal judge ruled that McIntyre can proceed with most of the claims in his lawsuit against Wyandotte County, Kansas City, and Roger Golubski, the corrupt police officer who framed him.

McIntyre's wrongful conviction has been extensively covered by The Kansas City Star, Injustice Watch, and The New York Times. McIntyre was also represented by the Midwest Innocence Project, a group that works to exonerate the wrongfully convicted through DNA testing.

...

The state's faulty case was based on two eyewitnesses, both of whom failed to place McIntyre at the scene prior to the trial. One woman later alleged that she not only told the prosecutor McIntyre wasn't the shooter, but that the prosecutor threatened to take her children away if she did not testify in court. Other witnesses similarly denied that McIntyre was the shooter, but this information was never shared with his trial lawyer. The one witness who identified McIntyre later recanted, saying Golubski coerced her.

...

 

McIntyre was 17 at the time, so he's now 40. He has been awarded $1.5 million so far. I would not take that little to miss out on those years. He's seeking further compensation and I don't blame him a bit.

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On 3/12/2020 at 4:16 AM, Plenipotentiary Tom said:

Apparently it does for those "subject to an appropriate protective order." I guess the question boils down to whether a judge can be trusted to rule fairly.

It turns out that it is possible to overcome qualified immunity

A Wrongfully Convicted Kansas Man Can Now Sue the Corrupt Cop Who Framed Him
 

McIntyre was 17 at the time, so he's now 40. He has been awarded $1.5 million so far. I would not take that little to miss out on those years. He's seeking further compensation and I don't blame him a bit.

I guess there's a reason it isn't called unqualified immunity. 

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13 hours ago, Mark K said:

I guess there's a reason it isn't called unqualified immunity. 

Yes, and "nearly impossible" doesn't mean "completely impossible." Almost, though.

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Under qualified immunity, officers can violate the Constitution unless previous court rulings have explicitly prohibited that exact action by the police—a standard that has become nearly impossible to meet.

 

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The 5th Circuit Got One Right
 

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...The U.S. District Court for the Western District of Texas rejected the deputies' position. In its decision this week, the U.S. Court of Appeals for the 5th Circuit did the same. "A reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment," the ruling declared. The family's excessive force suit against the deputies "should proceed to trial."

...

 

 

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  • 2 weeks later...
On 2/15/2020 at 5:08 AM, Plenipotentiary Tom said:

IJ Asks U.S. Supreme Court to Hold State/Federal Task Forces Accountable For Constitutional Violations
 

It's too bad that James King can't find some credible legal representation, but IJ has won 5 of 6 cases argued before the Supreme Court so I guess they'll have to do.

The Supreme Court denied King's cert petition.
 

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...

Both the federal government and King asked the Supreme Court to take up the case. King and the Institute for Justice wanted the court to weigh in on the issue of whether an officer in a multi-jurisdictional task force was operating subject to state or federal law. The court denied King's petition Monday.

But the Court did agree to tackle the feds' request to determine whether that FTCA claim means that King can't use a previous court precedent (Bivens v. Six Unknown Federal Narcotics Agents) to sue the government for violating his constitutional rights.

It's a messy, complicated case that touches on the many ways police and the federal government manipulate laws and court precedents to try to shield themselves from liability. King was a completely innocent man who was attacked and then prosecuted by officials who did not want to acknowledge their mistake. And now they're doing everything they can to avoid having to make amends for what they did to King.

...

 

 

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  • 2 weeks later...
Quote

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

But apparently that's not fair warning to cops that stealing evidence would be an unreasonable seizure. Or, if it is, the Supreme Court does not wish to hear about it.

Quote

Last year, the U.S. Court of Appeals for the 9th Circuit Court decided that two police officers in Fresno, California, who allegedly stole more than $225,000 in assets while executing a search warrant, could not be sued over the incident. Though "the City Officers ought to have recognized that the alleged theft was morally wrong," the unanimous 9th Circuit panel said, the officers "did not have clear notice that it violated the Fourth Amendment."

...

 

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The SCOTUSblog case page on Jessop is weirdly amusing

"Sure, you can all talk to us about this case. And no, we don't wish to hear from you."

Quote

 

May 18 2020  Motion for leave to file amicus brief filed by Libertarian Nutjobs GRANTED.
May 18 2020  Motion for leave to file amici brief filed by Cato Institute, et al. GRANTED.
May 18 2020 Motion for leave to file amicus brief filed by New Civil Liberties Alliance GRANTED.
May 18 2020 Motion for leave to file amicus brief filed by National Association of Criminal Defense Lawyers GRANTED.
May 18 2020 Motion for leave to file amicus brief filed by Constitutional Accountability Center GRANTED.
May 18 2020 Motion for leave to file amici brief filed by DKT Liberty Project, et al. GRANTED.
May 18 2020 Petition DENIED.
 

 

 

 

 

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I wonder if any court has explicitly said that kneeling on a man's neck until he dies from suffocation is wrong?

Because if not, well... Qualified Immunity for the cop who did it.
 

Quote

 

...

Qualified immunity, created by the Supreme Court in the 1970s, shields police and other government officials from liability in civil rights lawsuits when the illegality of their actions was not "clearly established" at the time of the offense.

Attorneys representing the families of Floyd, Ahmaud Arbery, and Breonna Taylor called for policing reforms—including rolling back qualified immunity—at a press conference today.

"The standard is far too high…for civil rights accountability for law enforcement officers," attorney Lee Merritt said. He continued:

"We need legislation that specifically goes after qualified immunity and the additional protections offered to law enforcement officers…We want to make sure that the laws from a federal level, number one, that these cases are no longer handled solely locally, but that the federal government will be asked to come in in each of these cases or these states will be denied federal funds."

The petitions before the Supreme Court have attracted amicus briefs from a notable range of groups, including the Reason Foundation (the nonprofit that publishes this website), the Cato Institute, and the American Civil Liberties Union (ACLU).

...

 

 

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that's a great letter and a month ago I'd have said it never had a chance.  Assuming no economic, racial or epidemiological miracle, that bill, or one like it, could get passed next year.  And upheld by an 11-justice SCOTUS...

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On 5/30/2020 at 8:15 PM, Cacoethesic Tom said:

I wonder if any court has explicitly said that kneeling on a man's neck until he dies from suffocation is wrong?

Because if not, well... Qualified Immunity for the cop who did it.

I just need to clarify Tom ... are you arguing that the cop who killed that guy, should get off?

Is that what you are doing here?

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Tom is not a fan of qualified immunity. Neither am I in its present form.  Immunity is important to make sure cops actually try to stop crimes with at least a minimal level of competence.  It is not appropriate for cops who kill unarmed people or blow up innocent people's houses, yet it is shocking how frequently it is used for that kind of malfeasance.

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1 hour ago, astro said:

I just need to clarify Tom ... are you arguing that the cop who killed that guy, should get off?

Is that what you are doing here?

Of course. Much like hiding in a closet while a person is raped as discussed above, kneeling on a person's neck until he dies is just part of a cop's job. Or something.

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1 hour ago, MR.CLEAN said:

Tom is not a fan of qualified immunity. Neither am I in its present form.  Immunity is important to make sure cops actually try to stop crimes with at least a minimal level of competence.  It is not appropriate for cops who kill unarmed people or blow up innocent people's houses, yet it is shocking how frequently it is used for that kind of malfeasance.

How much of this is discretionary with DAs and judges?

Seems to me like it swings back and forth, nationally and within districts. For example, a while back (by which I mean several decades, back in 19mumble) I lived in Jax Fla which had a terrible problem with police brutality, breaking down the door at the wrong address, etc etc.The friends I have who live there now say the police and the DA's dept are curteous, public-spirited, and extremely professional. 

The police where I live now have a high degree of professionalism but it's rural and they have to cover a lot of ground. They're spread too thin to go stomping around like an occupying military, even if they wanted to (which IMHO they don't, also high level of professionalism here).

- DSK

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10 hours ago, Steam Flyer said:

How much of this is discretionary with DAs and judges?

What I know about this comes from reading Tom's thread, but it appears to me that the decisions have come down on the side of 'what is not specifically forbidden to the nth degree of specificity is permitted'. I think this is an utter perversion of the law and should have been stamped on a long time ago.

So on that basis I think the police officer who killed someone by kneeling on their neck has a really good chance of getting off using this defence. I also think this is utterly wrong but it seems the way previous decisions have gone.

We'll see what happens.

FKT

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31 minutes ago, Fah Kiew Tu said:
11 hours ago, Steam Flyer said:

How much of this is discretionary with DAs and judges?

What I know about this comes from reading Tom's thread, but it appears to me that the decisions have come down on the side of 'what is not specifically forbidden to the nth degree of specificity is permitted'

That's basically the bottom line, though there is a tiny bit of wiggle room that the fifth circuit managed to find, as noted above.

George Floyd and Beyond: How “Qualified Immunity” Enables Bad Policing
 

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Arlington, Va. —This week, the U.S. Supreme Court will consider whether to accept eight different cases that spotlight how the system of “qualified immunity”—which the Supreme Court created in 1982—has led to the regular and widespread violation of constitutional rights by police and other government officials.

While the nation is focused on the tragic death of George Floyd, qualified immunity cases have allowed government officials to steal, maim, willfully destroy property, and even kill, all without facing any consequence for their actions. If any ordinary citizen of the United States had engaged in such actions, they would face the full weight of the law against them; but because of qualified immunity, government officials are often held to a shockingly lower standard, leaving their victims to suffer insult after injury.

Qualified immunity means that government officials cannot be held accountable for violating the Constitution unless they violate a “clearly established” constitutional rule. In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.

How precisely must the violation match? Officers were recently granted qualified immunity when they let their police dog attack a suspect who was seated with his hands raised because the court found that an earlier case in which police let loose their dog on a suspect who was lying down wasn’t a close enough match.

...

 

OK, so it was written by Koch-$pon$ored nutjobs, but that's still right.

For more cases, see their Project on Immunity and Accountability

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Not specifically QI related, but on the subject of enabling bad cops...

Even Police Unions Trash the Actions of the Cop Who Killed George Floyd

The first word in that title is there for a reason. Specifically,

Police Unions and the Problem of Police Misconduct

and

It's Time To Bust Police Unions

Unions are in a position similar to criminal defense attorneys: they have to do their best to defend people against whom allegations of wrongdoing are often true. Someone has to do it because "often" does not mean "always."

 

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Bipartisan Bill To End Qualified Immunity Introduced

(Bipartisan, in this case, meaning Libertarian and Democrat.)
 

Quote

 

Rep. Justin Amash (L–Mich.) wants to end qualified immunity.

The insidious legal doctrine allows police officers to violate your civil rights with absolute impunity if those rights have not been spelled out with near-identical precision in preexisting case law. Theoretically, it protects public officials from bogus civil suits, but practically it often allows egregious misconduct.

George Floyd's death at the hands of former Minneapolis cop Derek Chauvin forced new life into the debate, shining light on a doctrine that many people say has contributed to an environment of police abuse. Amash announced late Sunday that he would introduce the End Qualified Immunity Act, with Rep. Ayanna Pressley (D–Mass.) signing on as a cosponsor Thursday.

...

As of Friday, 16 additional legislators had signed on to Amash's proposal. Not a single one of them is a Republican.

...

 

For once I'm please by blessed bipartisan unity.

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The Attorney General's Overblown Fears About Scrapping Qualified Immunity
 

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Yesterday Attorney General William Barr expressed his opposition to scaling back or eliminating qualified immunity for police officers. Reformers think scrapping the doctrine would discourage abuses like the life-endangering restraint technique that killed George Floyd. But Barr argues that increased liability for cops—whether accomplished by the Supreme Court's reconsideration of the qualified immunity doctrine or by legislation like the bill that Rep. Justin Amash (L–Mich.) recently introduced—would have a chilling effect on good policing.

Defenders of qualified immunity often express that concern. But it seems to be overblown, for reasons that also put a damper on the hopes of the doctrine's opponents.

...

In a 2020 Columbia Law Review article, UCLA law professor Joanna Schwartz, a prominent critic of qualified immunity, carefully considers such claims, drawing on her analysis of nearly 1,200 federal civil rights cases, her survey of about 100 lawyers practicing in this area, and her in-depth interviews with 35 of them. Her conclusions suggest that Barr is unduly worried that increased liability would paralyze the police. But they also suggest that opponents of qualified immunity should temper their expectations of the good that can be accomplished by eliminating it.

Schwartz found that the vast majority of unsuccessful civil rights lawsuits fail for reasons other than qualified immunity, which suggests that the impact of abolishing it would be less dramatic than many people on both sides of the debate imagine. She nevertheless predicts that without qualified immunity, more cases would be filed against police officers. But a surge in "insubstantial claims" is unlikely, she argues, mainly because attorneys working for contingency fees have a strong financial reason to eschew such cases. And even if a larger share of civil rights lawsuits survive motions for dismissal, Schwartz thinks their success rate probably would stay about the same, since "jurors' sympathies for government defendants mean that plaintiffs would continue to regularly lose at trial."

One important benefit of eliminating qualified immunity, Schwartz argues, would be to clarify the contours of constitutional rights.

...

 

I think that last sentence is right and is the best reason to reform QI.

Courts currently avoid constitutional questions just because the case before them isn't similar enough to some previous one, so they just stamp it QI and toss it out.

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Tripartisan Unity Achieved At Last

Quote

Rep. Tom McClintock (R–Calif.) signed on to cosponsor, joining Rep. Ayanna Pressley (D–Mass.) and a lengthy list of other Democratic legislators who support Amash's legislation.

Well, OK, maybe not unity, but one TeamR player (or two for the ignorant folks who still count Amash) is better than none.

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12 hours ago, mikewof said:

Neither the taxpayers nor the union have any requirement to hold a criminal immune.


Then why is this thread filled with cops who committed crimes and were held to be immune?

 

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9 hours ago, Cacoethesic Tom said:


Then why is this thread filled with cops who committed crimes and were held to be immune?

 

Because the courts and the taxpayers decided that what they committed were not in fact crimes, but necessary expressions of their jobs.

We looked at homicides committed in daylight, in front of the police, and decided that in fact, these weren't homicides. We lost the will to imprison the people we hired to do a job because we were so fucking grateful that we didn't have to do that same job and find ourselves in a similar position.

And this has happened for the last thirty years or so, since we decided in the 1980 that we had to change. But we didn't change, we didn't fix anything, we just let the problem fester. And now Americans are still murdered in broad daylight in front of the police, and the murderers are released with hand-slaps because we can't integrate ourselves into the morality of this situation.

So now we have to make a change. And if you think that ending qualified immunity will change the opinions of the taxpayers who interpret the law, who decide on guilt and innocence, then you're living in a fantasy.

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On 6/3/2020 at 7:30 AM, Cacoethesic Tom said:

Of course. Much like hiding in a closet while a person is raped as discussed above, kneeling on a person's neck until he dies is just part of a cop's job. Or something.

Those are two different things. Hiding in a closet while someone is raped or murdered may be morally wrong, but it isn't the same as murdering someone, or raping someone.

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8 minutes ago, mikewof said:

 taxpayers decided 

the opinions of the taxpayers who interpret the law, who decide on guilt and innocence, then you're living in a fantasy.

Q.I. is a question of law, not fact.   Do you understand what that means and why you are showing your ass again with the above?

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13 hours ago, mikewof said:

Because the courts and the taxpayers decided that what they committed were not in fact crimes, but necessary expressions of their jobs.

No, that's backward. The courts avoid any decision simply by saying "nothing like this has happened before in exactly this way" and that's the end of the inquiry.

From above:

Quote

The upshot of all this is a rule that says government officials can violate your rights with impunity—so long as they do so in a way no one has ever done before. And, perversely, that means that the most outrageous rights violations are the ones that are least likely to be punished: One court, for example, held that officers accused of stealing over $225,000 were entitled to “qualified immunity” and couldn’t be sued. According to the court, “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.”

Do you really think a court, let alone any taxpayers, would decide that stealing a couple hundred grand of loot from evidence is a necessary expression of a cop's job? I don't.

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13 hours ago, MR.CLEAN said:

Q.I. is a question of law, not fact.   Do you understand what that means and why you are showing your ass again with the above?

Most real anarchists are fine in this regard, thanks to John Jay, real anarchists tend to use this nullify juries.

“The jury has the right to judge both the law as well as the fact in controversy.” John Jay, 1st Chief Justice, U. S. Supreme Court, 1789.

 

You're showing immaturity if you think that tweaking QI is going to somehow magically remove psychopathic, homicidal, overly racist cops from the police force. It's one of your fantasies, like thinking you can patent an invention out of your living room and get rich off of it.

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The Supreme Court doesn't want to hear it.
 

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The U.S. Supreme Court today refused to hear eight separate cases that had presented opportunities to reconsider its doctrine of “qualified immunity.” That doctrine, created by the Supreme Court in 1982, holds that government officials can be held accountable for violating the Constitution only if they violate a “clearly established” constitutional rule. In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.

“Qualified immunity means that government officials can get away with violating your rights as long as they violated them in a way nobody thought of before,” explained Institute for Justice (IJ) Nutjob Anya Bidwell. “And that means that the most egregious abuses are frequently the ones for which no one can be held to account.”

...

 

 

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Congress Must Make It Clear that the Constitution Applies to Federal Officers as Much as It Applies to State Officers
 

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...

With the Supreme Court refusing to reconsider the doctrine—and leaving in place outrageous circuit court opinions protecting police from intentional and reckless conduct—proposed legislative solutions are more important than ever. In recent weeks, lawmakers have reached across the aisle to introduce legislation to end qualified immunity. Currently there are two bills circulating in Congress—one introduced by Reps. Justin Amash and Ayanna Pressley, and one by Rep. Karen Bass, Sens. Cory Booker and Kamala Harris, and Rep. Jerrold Nadler. Although both bills would be a step in the right direction, both have a glaring flaw: they restore constitutional accountability to state police. Federal police are exempted entirely.

“Qualified immunity allows both state and federal officers to sidestep the Constitution. But the bills currently on the table only remove immunity for state officers, meaning that federal officers can continue to violate the Constitution without consequence,” said Institute for Justice nutjob Anya Bidwell. “A world with some accountability is better than one with none. But Congress should apply the Constitution to federal police and state police alike. No one should be above the law,” added Patrick Jaicomo, also a nutjob with IJ.

...

 

That's a pretty glaring flaw and I can't see any reason for it.

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A Senate Republican Has Officially Come Out Against Qualified Immunity

One is better than none but pretty glacial progress IMO.
 

Quote

 

Sen. Mike Braun (R–Ind.) on Tuesday unveiled a bill to curtail qualified immunity, the legal framework that allows public officials to skirt civil liability for violating your rights if those rights have not been carved out explicitly in a pre-existing court precedent.

...

But the tide seems to be turning, with some GOP senators expressing a tepid willingness to consider changes. Though Braun is the first to come forward with an official proposal, Sen. Lindsey Graham (R–S.C.) has expressed a desire to look further. "One thing I can tell you: If you're subject to being sued, you act differently than if you're not," Graham said in a Senate hearing last Tuesday. "Let's take a look at it."

That the GOP has been hesitant to back such reforms isn't surprising from a strategic perspective, but it's ironic when considering the party's ostensible principles. Republicans condemn judicial activism, yet qualified immunity epitomizes legislating from the bench. But more so, conservatives rally around the idea that abusive government institutions must be checked to protect the public's freedom. They would be right, and they can start with reforming qualified immunity.

 

I'm not familiar with Braun but glad he's at least giving this a shot.

As for Lindsey Graham, talking about thinking about giving something a shot qualifies as bold leadership coming from him, so I guess that's good too. Sorta.

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The House passed one of the three qualified immunity proposals that were presented.
 

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In a historic vote, the U.S. House of Representatives voted on Thursday to pass the George Floyd Justice in Policing Act, which would end “qualified immunity” for state and local police officers as well as federal agents.

...

“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 Senior Nutjob Robert McNamara. For too long, qualified immunity has denied victims a remedy for violations of their constitutional rights. It’s encouraging to see Congress is finally taking steps to fix this pernicious mistake by the Supreme Court.”

Long an obscure legal rule, qualified immunity—and calls for its removal or reform—has become increasingly prominent in the wake of the killing of George Floyd by Minneapolis police officers. Last week, the U.S. Supreme Court refused to hear eight separate cases that involved qualified immunity. Justice Clarence Thomas was the only justice who dissented from this refusal, writing that he has “strong doubts” about the doctrine. 

...

On Tuesday, Sen. Mike Braun (R-IN) introduced the Reforming Qualified Immunity Act, which, unlike the Justice in Policing Act, would not completely eliminate qualified immunity. Instead, under the Braun bill, officers could only be shielded if their conduct was “specifically authorized or required” by federal or state law, or if a court had previously ruled that their conduct was constitutional. Critically, the Braun bill would not permit officers to use “clearly established law” as a defense, which has long shielded some of the doctrine’s most egregious abuses.

Sen. Braun’s bill is now the third bill targeting qualified immunity introduced this month, joining the Justice in Policing Act, as well as the End Qualified Immunity Act, sponsored by Rep. Justin Amash (L-MI). The Braun bill, like the Amash bill, would apply to all local and state government employees, including prison guards, county clerks, public school administrators, and municipal and state employees. In contrast, the Justice in Policing Act is limited to law enforcement officers, though only the Justice in Policing Act addresses federal agents.

...

 

Glad to see the House join Justice Thomas in having some doubts about this policy but it probably has no chance of passage in the Senate let along getting Trump's signature.

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

Quote

 

...

On September 6, 2013, Taylor says that he was forced naked into a cell with "massive amounts" of feces across the floor, windows, walls, and ceiling. It gave off a "strong fecal odor." Taylor claims he could not drink water because feces were "packed inside" the faucet, and he did not eat over worries that the food might get contaminated. 

Taylor alleges that Cortez, Davison, and Hunter laughed at him when he expressed concerns and that one guard told him he was "going to have a long weekend." Taylor says that Swaney similarly shrugged off his complaints, telling him "Dude, this is Montford, there is shit in all these cells from years of psych patients." Taylor stayed in the cell until September 10th.

On September 11, Taylor was transferred to an empty seclusion cell with a clogged drain overflowing with raw sewage. Lacking a toilet, he was told to urinate on the floor. But because the drain was stopped up, and because he lacked a bed, he would have then been forced to sleep in his urine. Taylor refused and proceeded to urinate on himself involuntarily after 24 hours passed. He stayed in that cell until September 13, after which time the guards attempted to escort him back to the feces-inundated cell. He begged for a different placement, and the guards obliged. 

Circuit Judge Jerry E. Smith writes in his opinion that Taylor's case meets the threshold for an Eighth Amendment violation. He cites two court precedents—McCord v. Maggio (1991) and Gates v. Cook (1994)—that affirm a prisoner is not to be subjected to egregiously unsanitary living conditions. Gates, the judge writes, further supports Taylor's claims that the guards acted with deliberate indifference, which Smith notes is "no small hurdle."

But in a poignant demonstration of how qualified immunity works in practice, Smith then transitions to explaining why the guards deserve protection from civil liability: "The law wasn't clearly established. Taylor stayed in his extremely dirty cells for only six days," Smith writes. "Though the law was clear that prisoners couldn't be housed in cells teeming with human waste for months on end, we hadn't previously held that a time period so short violated the Constitution. That dooms Taylor's claim."

Put more plainly, the guards cannot be held liable, but not because their alleged conduct didn't infringe on Taylor's right to be free from cruel and unusual punishment. It did—current case law confirms as much. Taylor cannot sue the guards for violating his constitutional rights—which the Court agrees happened—because the length of time Taylor spent in those filthy conditions has not been carved out with razor-like precision in previous case law.

...

 

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

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  • 2 weeks later...

Qualified Impunity
 

Quote

 

...Was it "clearly established" on May 25 that kneeling on a prone, handcuffed arrestee's neck for nearly nine minutes violated his Fourth Amendment rights? The issue is surprisingly unsettled in the 8th Circuit, which includes Minnesota.

The U.S. Court of Appeals for the 8th Circuit blocked civil rights claims in two recent cases with broadly similar facts: handcuffed detainees who died after being restrained face down by several officers. Unlike those detainees, Floyd was not actively resisting at the time of his death, except to repeatedly complain that he could not breathe.

While that distinction could make a difference in the constitutional analysis, we can't be sure. Even if the 8th Circuit concluded that Chauvin's actions were unconstitutional, it could still decide the law on that point was not clear enough at the time of Floyd's arrest, meaning Chauvin would receive qualified immunity.

The 8th Circuit could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut. To defeat qualified immunity in this case, says UCLA law professor Joanna Schwartz, a leading critic of the doctrine, Floyd's family "would have to find cases in which earlier defendants were found to have violated the law in precisely the same way."

This term the Court had 13 opportunities to revisit qualified immunity, but it has not accepted any of those petitions and so far has rejected all but one. Those rejected cases included one that posed this question: "Does binding authority holding that a police officer violates the Fourth Amendment when he uses a police dog to apprehend a suspect who has surrendered by lying down on the ground 'clearly establish' that it is likewise unconstitutional to use a police dog on a suspect who has surrendered by sitting on the ground with his hands up?"

The U.S. Court of Appeals for the 6th Circuit thought not. Dissenting from his colleagues' refusal to review that decision, Justice Clarence Thomas reiterated his doubts about qualified immunity, saying "there likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe."

Given the Supreme Court's lack of interest in reconsidering qualified immunity, Congress has a responsibility to reassert its legislative powers by revoking this license for police abuse. Last week Schwartz and more than 300 other law professors urged Congress to do so, noting that the doctrine gives cops not only "one free pass" but also a "continuing free pass" by allowing courts to block claims without ruling on their merits, "thus insuring that no law becomes clearly established."

The Ending Qualified Immunity Act, which Rep. Justin Amash (L–Mich.) introduced last month, so far has 64 cosponsors, all but one Democrats. The situation is similar in the Senate, where Mike Braun (R–Ind.) recently unveiled the Reforming Qualified Immunity Act, which would narrow the doctrine and make municipalities liable for police misconduct.

This issue is a test for conservatives who defend the rule of law and the separation of powers. Both of those principles are undermined by a judicially invented loophole that allows government officials to escape accountability when they abuse their powers.

 

Glad to see that noted Trumpublican Justin Amash's bill is up to 64 cosponsors but sorry to see that still only one of his fellow Trumpublicans has joined the list. Justice Thomas is still right about this issue.

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Cops who killed Tony Timpa get qualified impunity
 

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On a Monday night in August 2016, Tony Timpa, a 32-year-old Dallas resident, called 911 to report that he was "having a lot of anxiety" about a man he feared would harm him. Timpa mentioned that he had received several psychiatric diagnoses—schizophrenia, depression, bipolar disorder, and anxiety disorder—but had not taken his medication that day. After police arrived in response to that call and other reports of a man behaving erratically near 1728 West Mockingbird Lane, Timpa yelled, "You're gonna kill me!" He was right.

Timpa, who had already been handcuffed by a security guard, died while being pinned to the ground face down by several police officers for about 15 minutes, during which time he pleaded with them to stop and cried for help over and over again. The officers, while intermittently showing signs of compassion, joked about Timpa's predicament and the possibility that they had killed him.

This week, in a decision that vividly illustrates how difficult it is to hold cops accountable for misconduct under a federal statute that authorizes lawsuits against government officials who violate people's constitutional rights, a federal judge granted qualified immunity to those officers. Whether or not they violated Timpa's Fourth Amendment rights, U.S. District Judge David Godbey ruled, the law on that point was not "clearly established" on the night he died.

...

 

And on it goes...

 

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5 hours ago, BoatSlut said:
Quote

...

Body-cam footage documents officer McGillis announcing on his radio he was about to pull someone over who had been driving in a wrong lane.

Valenzuela pulled into the nearest parking lot, got out of her car and asked why he stopped her. The body-camera footage shows McGillis asking Valenzuela for her ID and her calmly explaining that she didn’t have it on her. Seconds later, the footage shows McGillis grabbing and slamming her while yelling to put her hands behind her back.

Valenzuela then started screaming and crying, saying McGillis was “manhandling” her and hurting her. “Someone, please, help! I did nothing wrong, sir,” she’s heard shouting. McGillis told her to “act like a young lady” as she begged him to stop and asked him to explain why he was arresting her. “You said you didn’t have any ID!” he shouted as he held her down.

The footage showed that other officers later arrived at the scene. Out of her earshot, one of the officers said Valenzuela was “looney tunes” and “all over the place”. And after another officer learned of the injuries, he directed the police on scene “just to CYA [cover your ass]” when writing follow-up reports.

...

Valenzuela was taken to jail and ticketed for a range of misdemeanors, including failure to have ID on her, “failure to comply with an officer”, driving “left of center” and a DUI “impaired to slightest degree”. The most serious charge was resisting arrest, classified as a violent felony for risking “physical injury” to the officer.

...

James Palestini, Valenzuela’s attorney, said the arrest and subsequent charges were egregious, especially considering that the entire interaction and aftermath were caught on video. Valenzuela is also only 5ft 2in (1.5 metres) and 98 pounds (44kg), he noted: “This is serious physical violence on the people he is supposed to protect. And then to try to hide it later by saying she is the one who assaulted him is very egregious.”

Prosecutors have moved to dismiss all the misdemeanor charges, but the most serious felony case is still pending, and Valenzuela is also fighting to get her license back after the encounter resulted in a suspension. Her attorneys launched a civil complaint on Monday against McGillis, a phlebotomist in the DUI unit, alleging false arrest and imprisonment.

“Given that he erupted violently after simply being told Ms Valenzuela didn’t have her ID, I have serious questions about Officer McGillis’s ability to function as a police officer,” said Brian Foster, one of her attorneys.

Sergeant Justus declined to comment on the specifics of Valenzuela’s arrest, but said the department’s professional standards bureau reviewed the incident and found no policy violations. “The expectations of all of our officers is to conduct themselves in a professional manner and to treat every person that they contact with dignity and respect,” she added.

...

I doubt that assaulting people  for not producing ID is really their policy but claiming that it is goes along with the CYA sentiment.

Glad there's body cam footage.

It might or might not help her civil case, depending on whether it was "clearly established" that assaulting people for failure to produce ID is bad. It's surprising how often things that seem clearly wrong are not "clearly established" as wrong in any court, resulting in qualified impunity.

Whatever else might be decided, it seems to me he didn't treat her with dignity and respect.

Which, by the way, is a two way street. A couple of days ago, a cement truck lost a tire and wound up partially in my street in a dangerous location at a curve. I drove by twice without incident. The third time, there was a brave man in a flourescent vest trying valiantly to do the "one lane road" drill by himself. He was doing a good job but was in danger because people come around that blind curve at 60 mph. When I tried to come home, a cop had the road blocked. I asked why and he explained about the cement truck and told me to go around. My street is a rectangular "loop" and that meant driving a mile north, 8 miles east, a mile south, and then 7 miles west to get to my driveway a mile away. I was irritated. The officer was respectful but firm, telling me that was the only way he could allow me to get to the other side of the broken down truck. He was standing there in the increasingly hot late morning sun doing his job. I smiled and told him to have a nice day and drove around.

 

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Joe Biden Isn't Ready To End Qualified Immunity

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Where does Biden fall on the issue? It's not completely clear. "We will also act to ensure that victims of federal, state, or local law enforcement abuses of power can seek justice through civil litigation by reining in the doctrine of qualified immunity to increase police accountability," the task force's recommendations readWe can't be sure what exactly that means, though we know that the Sanders faction wasn't happy about it. The panel "got into heated debates" over qualified immunity specifically, reports Politico. "Progressives pushed to end it, but Biden appointees agreed only to sign onto a commitment to rein in the rule."

"It either exists or it doesn't," noted journalist Radley Balko on Twitter. "You can't tell the courts to only enforce it in the cases where you support it."

Biden's hesitance here isn't surprising in the context of his attempt at a middle-of-the-road modus operandi. But even the Democratic House police reform bill proposed to eradicate the doctrine for cops. (Amash's and Braun's respective bills apply to all public officials, such as corrupt college administrators.) Biden's tepid response here is more in line with moderates in the Republican Party than his own party.

Remember that Biden was a spirited force behind the 1994 crime bill. With its three-strike rule, that landmark legislation saw many people sentenced to life in prison for a violent felony if they had been convicted of two prior offenses, including drug crimes. But his problematic record does not begin and end with that law. Biden conceded last year that one measure he helped push through the Senate—sentencing disparities for crack versus cocaine—was a "big mistake." Last month he said concerns surrounding his criminal justice record are "legitimate."

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Biden's demurral on qualified immunity makes more sense—as politics, not as policy—in light of the candidate's cozy long-term relationship with police unions. He was at the front lines of a yearslong effort to pass a federal Police Officer's Bill of Rights, which would have made it considerably more difficult to investigate police misconduct internally. Though the bill never become law as a standalone piece of legislation, an altered version was included in the Biden-Thurmond Violent Crime Control Act.

Just five years ago, Biden was lauding his 1994 crime bill at a dinner for the National Association of Police Organizations (NAPO), a group of police unions and related associations. "There wouldn't have been a Biden crime bill," he said in May 2015, "there wouldn't have been that crime bill that put 100,000 cops in the street in the first place were it not for the fact that from the very beginning [NAPO] was the staunchest, staunchest advocate for it."

But that group doesn't seem any happier with Biden's compromises than criminal justice reformers are. "For Joe Biden, police are shaking their heads because he used to be a stand-up guy who backed law enforcement," said Bill Johnson, executive director of NAPO. "But it seems in his old age, for whatever reason, he's writing a sad final chapter when it comes to supporting law enforcement."

As of now, though, that final chapter doesn't seem to include a sunset on qualified immunity.

 

 

His career-long drug warrior advocacy and his role in advancing drug war looting by cops made him a darling of police unions but now it sounds like the union guy is lamenting another politician who doesn't quite stay bought.

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  • 2 weeks later...

Hmm... the topic issue is at last noteworthy enough to merit a poll.

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...a Pew poll recently found two-thirds of Americans oppose qualified immunity, the legal doctrine that makes it difficult to sue police officers when they violate your rights. Until recently, discussion of qualified immunity was confined largely to legal circles and to magazines like ReasonNow, it appears the doctrine—and opposition to it—have simultaneously gone mainstream.

 

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

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...Prior to the bill signing, law enforcement claimed that HB 6004 would hurt police recruitment, while several officers even threatened to leave the profession in protest. Yet Connecticut already allows individuals to sue police officers who violated certain constitutional rights—and has done so for more than two decades. Back in 1998, the Connecticut Supreme Court created a “state constitutional tort remedy” that let victims of police misconduct sue the officers responsible. 

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However, this court-created cause of action was limited. Individuals could only sue in cases involving wrongful arrests and unreasonable searches and seizures. Moreover, they could only collect damages if the officers’ actions were “wanton, reckless, or malicious.” Otherwise, police were immune by default. 

HB 6004 expands the state constitutional tort remedy to apply to the rest of the Connecticut Declaration of Rights, which includes the right to free speech, assembly, bear arms, and equal protection. Under the new reform, municipalities and police departments will also be required to indemnify their officers and pay for their legal defense, except for cases involving “a malicious, wanton, or wilful act.” In other words, while HB 6004 will make it easier for people to sue over police misconduct, it doesn’t expand personal liability for the officers.

Unfortunately, the new law contains multiple loopholes that undermine its effectiveness. First and foremost, HB 6004 will grant police officers immunity if they “had an objectively good faith belief that [their] conduct did not violate the law.” Without clearly defining either “objectively” or “good faith belief,” this carve-out threatens to block far too many victims from obtaining justice they deserve.

It’s also completely unnecessary. Even if this exemption were eliminated, since HB 6004 requires indemnification for all officers who don’t act maliciously, the vast majority of police wouldn’t have to pay a dime if they violated someone’s constitutional rights.

Second, HB 6004 will let victims who win be eligible to collect attorney’s fees (which can quickly balloon), but only if the officer’s actions were “deliberate, wilful, or committed with reckless indifference.” That provision is much more limited than Colorado’s police immunity reform, which guarantees attorney’s fees to any “prevailing plaintiff.” Third, Connecticut’s new law only applies to police officers, and not the thousands of other government officials throughout the state.

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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.

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How Qualified Immunity Became The Sticking Point In Mass. Police Reform Debates

 

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Massachusetts lawmakers are working to reconcile their differences over police reform, with a joint House-Senate committee working on a compromise that can pass both chambers and be signed by Gov. Charlie Baker.

One area where the two chambers differ involves changes to qualified immunity, the doctrine that protects police officers and other public officers from lawsuits. Police unions have been fighting to keep it unchanged, while others want it abolished.

...

The doctrine began as a way to ensure that police officers had fair notice that their conduct was unlawful, and it protected officers from being personally liable for conduct they believed was lawful or for situations when the law was unclear. The "clearly established law" doctrine has evolved into a pretty ridiculous requirement that the plaintiff has to find a prior case with an almost identical fact pattern. It is an interpretation that has gone astray.

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I think the Senate bill is a good bill. It essentially does abolish qualified immunity, except when no reasonable officer would have known that the conduct violated the law. So that lowers the bar for the plaintiff. It focuses on conduct, not whether there's a prior case with almost identical facts.

...

 

Just from that description, I'd agree that the Senate has it right but apparently the House isn't having any of it.

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4 hours ago, Cacoethesic Tom said:


 

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.

"good faith belief" is a synonym for "this law does nothing to change QI"

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

 

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41 minutes ago, MR.CLEAN said:

"good faith belief" is a synonym for "this law does nothing to change QI"

I don't think so. From post 5 above:

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The upshot of all this is a rule that says government officials can violate your rights with impunity—so long as they do so in a way no one has ever done before. And, perversely, that means that the most outrageous rights violations are the ones that are least likely to be punished: One court, for example, held that officers accused of stealing over $225,000 were entitled to “qualified immunity” and couldn’t be sued. According to the court, “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Therefore, immunity applies, because even though, as the court conceded, “virtually every human society teaches that theft generally is morally wrong,” it was not “obvious” the officers were in the wrong legally.

I don't think the officers could make a case that they had a good faith belief that stealing was OK but they could, and did, make a case that nothing exactly like that had been "clearly established" by a court before.

43 minutes ago, 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?

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