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Police Qualified Immunity


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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    

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17 hours ago, Mark K said:

  Not at all. Qualified immunity for police officers is not the same as qualified immunity for everybody.  

The City of Euclid isn't an officer. It's a city.

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Euclid might be a city, not a cop, but it still got qualified immunity. SCOTUS is letting it slide.

A City Got Protections From Qualified Immunity After a Cop Killed a Man. SCOTUS Won't Hear the Case.
 

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Since May of 2020, discussions of police reform have been a mainstay among different corners of American society: the chattering classes, the politicians, the protesters, the public at large. Central to that conversation has been qualified immunity, the legal doctrine that prohibits victims of government abuse from suing state actors unless the exact way their rights were infringed on has been addressed in a prior court ruling. Over the last year, Congress has moved from refusing to rectify the issue to considering reining it in significantly.

Yet those efforts took a blow Monday when the Supreme Court declined to intervene in a major case that promises to further obstruct people from holding the government accountable when their rights are violated.

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A jury in civil court could deduce that Rhodes infringed on Stewart's constitutional rights, said the U.S. Court of Appeals for the 6th Circuit last August. One would assume so. But the court then turned around and awarded the officer qualified immunity, barring Stewart's estate from suing.

This story isn't really about Rhodes, however. It's about Euclid, and the 6th Circuit's decision to extend qualified immunity protections to the city—a ruling that directly contradicts Supreme Court precedent.

"The Supreme Court is simply buying itself some time," says Anya Bidwell, a nutjob at the Institute for Justice. "There is little doubt that the 6th Circuit is misreading the high court's precedent by extending qualified immunity protections to municipalities. And we are already seeing this unfortunate trend percolating through other circuit courts. It is just a matter of time before the Supreme Court will have to confront the issue."

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Can Republicans Be Persuaded To Restrict Qualified Immunity?

Probably not, it seems, but the article also goes into why that might be a bad idea.
 

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Sen. Tim Scott (R–S.C.), who last year introduced a police reform bill that did not address qualified immunity at all, lately has been floating the idea of allowing lawsuits against police departments rather than individual officers. That approach would not change the allocation of financial responsibility, since local governments already routinely cover the cost of settlements and damage awards. From 2006 to 2011, Schwartz found in a survey of 44 large police departments, "governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement." But Scott's suggestion would allow federal courts to declare police misconduct unlawful and award compensation in cases that otherwise would be dismissed based on qualified immunity.

What are the odds that such a compromise could win approval from both houses of Congress? In a May 18 letter to Senate Majority Leader Charles Schumer (D–N.Y.) and Senate Minority Leader Mitch McConnell (R–Ky.), the American Civil Liberties Union and 87 other organizations said even the George Floyd Justice in Policing Act does not go far enough, because it ends qualified immunity only for cops and not for other government officials. That omission, they argue, effectively codifies a court-invented doctrine that is inconsistent with the text and history of 42 USC 1983—a doctrine that the Supreme Court recently has taken tentative steps to restrict and might one day decide to abandon altogether.

Any federal legislation that addresses qualified immunity without completely eliminating it, including whatever bill Scott might eventually produce, would have the same problem. Since Senate Republicans view the outright abolition of qualified immunity as a non-starter, insisting on that result effectively means that the doctrine's future will depend on whether five justices eventually decide it was a mistake.

 

 

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Another stupid drug war no-knock raid. Another wrong house. And again, Qualified Impunity.
 

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That "carefully planned" raid went awry when officers went to the correct address—which housed a suspected drug dealer, courtesy of a confidential informant—and it looked a bit different than expected. "When they arrived at the residence, it did not match the description from the Task Force briefing because the house had been abandoned and looked like a 'storage out-building' rather than a habitable residence, as the briefing explained," the panel noted. "This mismatch led members of the Response Team to conclude that the house next door, Norris's house, must be the actual target residence."

Norris's house, which was yellow, also did not match the target residence, which was described in briefing materials as "off-white." That didn't deter the officers. Agent Jermaine Hicks of the Flint Circuit Drug Task Force testified that while he told officers the search warrant had detailed information on the house, "he did not recall anyone reviewing [it] at the briefing nor any Response Team agent reviewing the warrant before the briefing." For his part, Cody said he checked for a signature, verified it permitted no-knock entry, and confirmed the address, but declined to read it "all the way through."

Thanks to Cody's apparently unique style of carelessness, Norris will be unable to bring his case before a jury to ask for damages. Surmounting qualified immunity wouldn't have given him a settlement; it would merely give him the right to argue his case in civil court.

Perhaps most outrageously, Norris provided the court with another precedent—Treat v. Lowe—that ruled similar conduct unconstitutional. But the 11th Circuit denied that the 2016 case had any bearing because the Court opted to leave it "unpublished." In other words, Cody could not have known his behavior was wrong because the decision was not contained in a physical book of case law—even though it is publicly available online. Somewhat maddeningly, the 11th Circuit also declined to publish their opinion in Norris.

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On 5/25/2021 at 4:44 AM, Excoded Tom said:

Then they went back to doing their usual thing.

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After losing in the 5th Circuit, José asked the U.S. Supreme Court to take up his case. Today, the Court refused.

 

In Hail Mary attempt news,

Jose Oliva asking SCOTUS for rehearing
 

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José filed a lawsuit against the federal officers to enforce his Fourth Amendment rights. He prevailed at the district court level, where the judge ruled that the officers were not entitled to qualified immunity since their behavior was clearly unconstitutional. But the 5th U.S. Circuit Court of Appeals reversed the district court, holding that—even if the officers were not entitled to qualified immunity—they were absolutely immune because the officers happened to work for the federal, rather than state, government. They could not be sued.

“This holding is clearly erroneous,” explained Anya Bidwell, a nutjob with the Institute for Justice. “The constitution applies with the same rigor to federal police as it does to state police. But last month, the U.S. Supreme Court declined to grant José’s petition for certiorari and reverse the 5th Circuit’s ruling. As a result, more than 18,000 federal police in Texas, Louisiana and Mississippi are left without any judicial oversight for constitutional violations.”

What’s worse, this decision is already having a cancerous impact. It has spread to other circuit courts around the nation, giving judges an excuse to ignore gross violations of individual rights by federal government officials.

That’s why, in light of all the other decisions that are now providing absolute immunity to federal police, José is asking the Supreme Court to give his petition another look and consider granting it.

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Nicholas Gilbert Died After Cops Shackled Him and Held Him Facedown. A Court Said That Was Constitutional. SCOTUS Isn't So Sure.
 

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In December of 2015, Nicholas Gilbert died in a cell at the St. Louis Metropolitan Police Department (SLMPD). A lawsuit filed by his parents was dismissed by two federal courts, thrown out before mother Jody Lombardo and father Brian Gilbert could make their case before a jury.

The Supreme Court revived it yesterday, writing that the U.S. Court of Appeals for the 8th Circuit failed to properly assess the constitutionality of the officers' use of the prone restraint, kneeling on Gilbert's back as he lay shackled on the ground.

The move is part of a recent willingness by the Court to push back against myopic decisions in qualified immunity and excessive force suits.

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To be sure, the Supreme Court did not make a decision about whether or not the force was excessive. It merely asked the lower court to reconsider with its counsel in tow.

In dissent, Justice Samuel Alito took issue with that approach. "We have two respectable options: deny review of the fact-bound question that the case presents or grant the petition, have the case briefed and argued, roll up our sleeves, and decide the real issue," he wrote. "I favor the latter course, but what we should not do is take the easy out that the Court has chosen."

Some are a bit more optimistic. "This is significant in that the Court vacated a bad decision employing a very restrictive framework for evaluating excessive force cases. It is important to emphasize, though, that ultimately the defendants in Lombardo may still receive qualified immunity," says Anya Bidwell, a nutjob at the Institute for Justice, a nutty law firm. "But we'll take it one step at a time."

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Trump Judicial Appointees Clash Over Qualified Immunity and 'the Woke Constitution'
 

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The two jurists clashed openly in Cole v. Hunter (2019), a case involving a family's lawsuit over the police shooting of their mentally disturbed teenage son. Willett conceded that controlling SCOTUS precedent left the lower court with no choice but to give the officers qualified immunity. So Willett blasted away at the precedent. "The real-world functioning of modern immunity practice—essentially 'heads government wins, tails plaintiffs lose'—leaves many victims violated but not vindicated," he wrote.

Ho did not like the sound of that. "Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders' Constitution," Ho wrote, joined by another Trump appointee, Judge Andrew Oldham, citing Willett and other critics of the doctrine. According to Ho and Oldham, Willett's "one-sided approach" is too anti-cop. "Originalism for plaintiffs, but not for police officers," they wrote, "is not principled judging."

Willett and Ho butted heads over qualified immunity again last week. Ramirez v. Guadarrama arose from a horrific incident in which police officers tased a suicidal man who was drenched in gasoline, setting him on fire, killing him, and burning down his house. As Reason's Jacob Sullum observed, "Gabriel Eduardo Olivas doused himself with gasoline, but it was the cops who set him on fire. They were there to help him."

The 5th Circuit ruled in February that the officers who tased Olivas were entitled to qualified immunity. Willett argued in a June dissent that the full 5th Circuit should have reheard the case, which was originally decided by a three-judge panel.

"The panel held that tasing a combustible Olivas did not violate his constitutional protection against excessive force," Willett wrote. "More to the point, [the panel held that] such a claim was not even facially plausible. I have a different view: 'As the facts are alleged…the [Fourth] Amendment violation is obvious.'"

Once again, Ho did not like the sound of that. "Reasonable people can disagree with the doctrine of qualified immunity" and "with what the police officers did here," Ho lectured Willett. But "as judges, we apply our written Constitution, not a woke Constitution." Needless to say, "woke Constitution" was not intended as a compliment.

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Being anti rogue cop is kinda the opposite of being anti cop.

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A Qualified Immunity Compromise Is Crumbling. You Can Thank the Law Enforcement Lobby.
 

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...Any movement on qualified immunity was seen as a nonstarter when Donald Trump was president, but a group of Republicans led by Sen. Tim Scott (R–S.C.) showed an increased willingness to work out a reform during this congressional session. While the GOP would not acquiesce to letting victims sue individual police officers, Scott announced that he would be open to having departments foot the bill for misconduct.

That compromise now appears to be crumbling. Though the Fraternal Order of Police had told Sen. Cory Booker (D–N.J.) it was open to the proposal, two other cop lobbies, the National Sheriffs' Association and the National Association of Police Organizations (NAPO), have now weighed in on the other side.

In a meeting led by Scott and Sen. Lindsey Graham (R–S.C.), the sheriffs rejected the idea that their departments would have to take the heat for rogue officers' actions. Meanwhile, NAPO sent its members a message headlined "Urgent, Action Needed! Senator Booker Proposes Horrible Police Reform Bill."

Some Republicans now want to move in the opposite direction: They want qualified immunity—a creation of the U.S. Supreme Court—to be codified into federal statute. Alternatively, Graham has proposed letting departments be sued but only for cases involving death and serious bodily injury, which he calls a "sweet spot."

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Writing it into law might not be such a bad idea, despite the source. It would depend how one qualifies for immunity. The current method of looking to see if someone has misbehaved in that exact way in a prior court case just winds up granting immunity to those who are creative in their misbehavior.

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