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On 5/6/2021 at 7:05 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.

 

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Probably a really high correlation between the vaccine refuseniks and the hard-arse racist element in the police force so - win-win. FKT

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. 

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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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Another stupid drug war no-knock raid on the wrong house.

Texas Cops Realized They Raided the Wrong House. They Kept Searching Anyway.
 

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In November of 2018, Lucil Basco of Bexar County, Texas, awoke to a thunderous boom, followed by a parade of eight cops barging through her front door. She was handcuffed, and, with her screaming child, removed from the premises. The officers soon realized they made a mistake: They had the wrong house, based on incorrect information from a confidential informant. Yet they continued the operation anyway.

Three of those Bexar County sheriff's deputies—James Hancock, Jacob Rodriguez, and Bryan Smith—are not entitled to qualified immunity, the legal doctrine that allows state actors to violate your rights if the precise scenario in question has not yet been ruled unconstitutional in a prior court precedent. They can thus be sued for it, a federal court said this week.

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"Here, it is undisputed that law enforcement had the wrong address," notes the court. "The video evidence…shows that law enforcement remained in the home after the sweep was concluded….That the home was damaged during the raid is [also] undisputed." Basco was handcuffed, and, according to the video evidence presented to the court, those cuffs were not removed immediately after the cops realized they had targeted an innocent woman.

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Although Basco overcame qualified immunity at the district level, she is still a long way off from seeing any sort of justice or compensation. The state will almost certainly appeal the decision, which is a yearslong process. Presiding over the case will be the U.S. Court of Appeals for the 5th Circuit, which arguably boasts one of the most sordid track records on the subject.

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So we'll see what the 5th Circuit has to say. Given their record, Basco should not be optimistic.

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They don't want no stinking immunity...pussies.

 

S.F. sheriff's deputies threaten resignations over city's vaccination mandate 

 

The San Francisco Sheriff’s Department will see a wave of resignations if the city enforces its policy requiring vaccinations for its employees, according to the Deputy Sheriff’s Association, the union representing sheriff’s deputies.

Mandated vaccines, “will result in law enforcement officers and fire fighters retiring early and seeking employment elsewhere,” the union wrote on its Facebook page Thursday.

“Public safety of San Francisco has turned into the Wild West and will get worse when officers quit due to the vaccine mandate.”

Union President Ken Lomba said he’s heard threats of resigning or retiring early because of the mandatory vaccine policy “from a large group within our membership.”

Officials with the city’s Department of Human Resources issued a Friday statement sharply denouncing the union’s stance, particularly in light of the highly transmissible delta variant of the coronavirus.

“There is also an undue and unacceptable health and safety risk that is imposed upon the city, our employees and the public we serve, by those who are not vaccinated against COVID-19,” officials said. “Vaccines are safe, effective and readily available to our employees.”

City employees may be granted an exemption from the vaccine for medical or religious reasons.

Out of 3,000 San Franciscans who have been hospitalized with COVID-19, only 16 came from “breakthrough” cases, health officials said last week. There have been no deaths among the fully vaccinated in San Francisco.

https://www.sfchronicle.com/bayarea/article/S-F-sheriff-s-deputies-threaten-resignations-16370801.php

 

 

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7 hours ago, badlatitude said:

They don't want no stinking immunity...pussies.

 

S.F. sheriff's deputies threaten resignations over city's vaccination mandate 

 

The San Francisco Sheriff’s Department will see a wave of resignations if the city enforces its policy requiring vaccinations for its employees, according to the Deputy Sheriff’s Association, the union representing sheriff’s deputies.

Mandated vaccines, “will result in law enforcement officers and fire fighters retiring early and seeking employment elsewhere,” the union wrote on its Facebook page Thursday.

“Public safety of San Francisco has turned into the Wild West and will get worse when officers quit due to the vaccine mandate.”

Union President Ken Lomba said he’s heard threats of resigning or retiring early because of the mandatory vaccine policy “from a large group within our membership.”

Officials with the city’s Department of Human Resources issued a Friday statement sharply denouncing the union’s stance, particularly in light of the highly transmissible delta variant of the coronavirus.

“There is also an undue and unacceptable health and safety risk that is imposed upon the city, our employees and the public we serve, by those who are not vaccinated against COVID-19,” officials said. “Vaccines are safe, effective and readily available to our employees.”

City employees may be granted an exemption from the vaccine for medical or religious reasons.

Out of 3,000 San Franciscans who have been hospitalized with COVID-19, only 16 came from “breakthrough” cases, health officials said last week. There have been no deaths among the fully vaccinated in San Francisco.

https://www.sfchronicle.com/bayarea/article/S-F-sheriff-s-deputies-threaten-resignations-16370801.php

 

 

Probably a really high correlation between the vaccine refuseniks and the hard-arse racist element in the police force so - win-win.

FKT

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6 minutes ago, Fah Kiew Tu said:

Probably a really high correlation between the vaccine refuseniks and the hard-arse racist element in the police force so - win-win.

FKT

With a heavy dusting of stupid on top.

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A clinical counselor I know is hired by the local Vancouver PD to counsel cops.

She says the ones she deals with (obviously not the whole force but a number of them) are people that really like to bully people around and have serious control issues.

If the senior guys retire, hire young recruits. They will have less seniority, will thus cost less, and being younger, might be a bit more enlightened.

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4 hours ago, Zonker said:

A clinical counselor I know is hired by the local Vancouver PD to counsel cops.

She says the ones she deals with (obviously not the whole force but a number of them) are people that really like to bully people around and have serious control issues.

Same with cops everywhere. My GF was working for one of the not for profits providing accommodation to people just out of prison or trying to transition from living on the streets back to some form of regular accommodation and hopefully employment. She had a number of run-ins with the cops bullying her clients and attempting to bully her. Which doesn't work well with a 152cm tall woman with a very low tolerance for crap and a CCTV system set up to record everything.

They learned to avoid her like the plague after a number of complaints backed by video footage went to their superiors. Didn't stop their attitudes but it DID stop them doing it in or outside the accommodation building once they realised that the CCTV coverage was pretty comprehensive.

She freely said that some, indeed a lot, of the clients were arseholes and should be back in jail, but that wasn't the point. She also had the rep of calling the cops at the slightest sign of fights or drug dealing within the premises, never getting into arguments, just calling the cops. Funnily enough she had respect for taking no shit from anyone. Eventually it all got too stressful though and she left.

you'd think the cops wouldn't come because she'd dropped a number in the shit but they did - the decent ones outnumbered the arseholes, they just weren't going to drop their colleagues in the shit. Which is a big part of the problem with cops.

FKT

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Federal Impunity is worse than Qualified Impunity
 

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For years, St. Paul police officer Heather Weyker was swamped. She gathered evidence, cultivated witnesses, filled out the police reports, testified under oath—all in connection with an interstate sex trafficking ring run by Somali refugees. But perhaps most impressive is that she did all that while fabricating the same ring she was investigating, which resulted in 30 indictments, 9 trials, and 0 convictions.

Hamdi Mohamud, then a 16-year-old refugee from Somalia, found herself caught up in that scheme in 2011, when one of Weyker's witnesses, Muna Abdulkadir, tried to attack her and her friends at knifepoint. Mohamud called the police, and Weyker intervened—on behalf of Abdulkadir. She arrested Mohamud and her friends for allegedly tampering with a federal witness, and Mohamud subsequently spent two years in jail before the trumped-up charges were dismissed.

While Mohamud lost those two years of her life, Weyker has not paid any price—not in spite of her position, but because of it. Since the officer conducted her investigation as part of a federal task force, she is entitled to absolute immunity and cannot be sued, the U.S. Court of Appeals for the 8th Circuit ruled last year.

It's not because the "sex trafficking" investigation—which consisted of Weyker conjuring fake information, editing police reports, fabricating evidence, and lying under oath, among other things—was legitimate. On the contrary, the court says it was "plagued with problems from the start" and notes that Weyker employed "lies and manipulation" to put people behind bars. Legally speaking, none of that matters.

What does matter is a line of Supreme Court jurisprudence that has made suing a rights-violating federal officer almost out of the question. Had Weyker acted in her capacity as a state or local cop, Mohamud would have been permitted to bring her claim before a jury of her peers. Yet the most powerful officers are held to the lowest standard of accountability.

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The United States District Court for the District of Minnesota ruled that Weyker's actions so clearly made a mockery of the Constitution that she could not skirt the suit. The 8th Circuit then overturned that decision on appeal, citing Weyker's temporary federal badge, while in the same breath acknowledging the depravity of her actions.

"Qualified immunity makes it very, very difficult to sue government officials," says Patrick Jaicomo, a nutjob at the Institute for Justice, the nutty public interest law firm representing Mohamud. "This makes it impossible."

 

 

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

Prosecutor Qualified Immunity?
 

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

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

The 5th Circuit agreed

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We AFFIRM the district court’s holding that Individual Defendants are not  entitled  to  absolute  immunity  for  their  alleged  creation  and  use  of  fraudulent subpoenas.  We DISMISS the remainder of Defendants’ appeal for lack of jurisdiction.

But there's also more prosecutorial immunity news. Jackie Johnson is in trouble for running a "friends and family" program.

Here's a Rarity: A Former Prosecutor Is Facing Criminal Charges for Violating Her Oath of Office
 

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A grand jury on Thursday indicted a former prosecutor for allegedly using her power to protect the men accused of murdering Ahmaud Arbery, a Georgia man who was chased through a neighborhood before being shot and killed in February of last year.

Jackie Johnson, who for a decade served as the district attorney in the Brunswick Judicial Circuit, is charged with violating her oath of office, which is a felony, and hindering a law enforcement officer, which is a misdemeanor.

While it's too early to predict an outcome, the mere fact that a former prosecutor is facing accountability for potential misconduct is remarkable.

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The erstwhile prosecutor, who lost reelection in November 2020, has maintained her innocence and says she recused herself right away because Greg, the older McMichael, used to be her employee.

But the indictment against her tells a different story, alleging she "show[ed] favor and affection to Greg McMichael during the investigation." Johnson "fail[ed] to treat Ahmaud Arbery and his family fairly and with dignity," it continues, when she recommended the case be taken over by Waycross Judicial Circuit District Attorney George E. Barnhill, neglecting to disclose that she "had previously sought the assistance of DA Barnhill on the case." It also says she obstructed police "by directing that Travis McMichael should not be placed under arrest."

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The story is that the government is actually seeking to hold Johnson accountable for her alleged misbehavior, an exceedingly rare turning of the tables. "Prosecutors are so rarely indicted for job-related misconduct that this is like asking what happens if you toss a pack of Mentos into a black hole," says Clark Neily, senior vice president for legal studies at the Cato Institute.

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Police Shot a Man Driving Away, Can't Keep Their Stories Straight, Get Qualified Immunity Anyway
 

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Analyzing the case, the U.S. Court of Appeals for the 11th Circuit found that the officers violated Underwood's Fourth Amendment rights. "While Underwood was not obeying orders to stop and was evading talking to the police, Underwood was not driving aggressively or in a threatening way," wrote Circuit Judge Charles R. Wilson. "The car was still eight feet away, [Partridge] did not warn Underwood that he would use deadly force, and there was no critical need to prevent a known dangerous person from escaping and harming others."

The most important bit: "We conclude that under the totality of the circumstances a reasonable jury could find that the Officers' use of deadly force was unreasonable and therefore unconstitutional."

But Underwood won't get that chance. It's not because he doesn't have a plausible case; the court acknowledges the reverse. Rather, he will not have the right to ask a jury of his peers to consider it because neither the 11th Circuit nor the Supreme Court has litigated a case with almost identical facts.

"The Officers are entitled to qualified immunity because Underwood has not demonstrated that his rights were clearly established," wrote Wilson. "As an initial matter, Underwood does not point to a factually similar case, nor does he contend that a broader principle applies here. And probably for good reason, as this case is not directly analogous to other binding qualified immunity cases involving vehicles and the use of deadly force."

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And once again "no one violated constitutional rights in quite that way before" is a good enough answer.

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SCOTUS asked to consider federal impunity in Byrd v Lamb

And the orchestrated chorus of amici has started to assemble.
 

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Because nothing came of the charges, Kevin sought accountability in the only legal forum available to him—a federal district court. He initially succeeded, because the district court held that even qualified immunity—an obstacle that already makes it extremely difficult for victims of constitutional abuse to seek accountability—does not protect an officer who commits such a clear constitutional violation. But when Lamb appealed to the 5th U.S. Circuit Court of Appeals, his victory turned into a defeat because, according to that court, federal officers are entitled to absolute (not qualified) immunity, meaning they cannot be sued at all simply by virtue of being employed by the federal government. This holding prompted one of the judges sitting on the panel to lament that in Texas, Louisiana and Mississippi federal officers now operate in a “Constitution-free zone.”

“Had Agent Lamb worked for a state or local government, a case against him would have proceeded to trial,” said Patrick Jaicomo, a nutjob for the Institute for Justice, which represents Kevin in his appeal to the U.S. Supreme Court. “But because he happens to be a federal cop, he gets away Scot free.

“That’s not only wrong, it is also inconsistent with our history,” added IJ Nutjob Anya Bidwell, co-counsel in the case. “Remember that the Constitution first and foremost limited the power of the federal government and only applied to the states after the Civil War.”

On August 6, Kevin and the Institute for Justice filed a petition for certiorari in the U.S. Supreme Court, asking the Justices to take on the case and reverse the 5th Circuit’s decision.

They are now joined by a diverse group of highly respected law professors and public policy organizations that filed briefs in support of the Court taking up Kevin’s case. These include briefs by:

  • Professor Peter Schuck, the Simeon E. Baldwin Professor of Law Emeritus at Yale University. An academic legend in the field of constitutional accountability, Prof. Schuck wrote a treatise—Suing Government: Citizen Remedies for Official Wrongs (1983)—which became the foundational text on the subject and inspired many great legal minds to get involved in the field. In his brief, Professor Schuck argues that the 5th Circuit’s decision denying Kevin his day in court “departs radically from this Court’s established framework for evaluating damages claims against federal officials for constitutional torts, creating a split among the circuits.” Supreme Court review, therefore, is not only warranted but badly needed.
  • Professor Seth Stoughton, a former police officer who, among other appointments, teaches at the University of South Carolina School of Law. Professor Stoughton is a well-respected authority on the use of force issues that plague our nation today. According to his brief, the 5th Circuit is home to one of the largest federal law enforcement forces in the country. There are more than 18,000 federal law enforcement officers in Texas alone, with the 5th Circuit overall hosting more than 20,500 federal police. This means that if the 5th Circuit’s decision is allowed to stand, a constitutional remedy will “effectively be abolished exactly where it is most crucial.”
  • The ACLU, Cato Institute, DKT Liberty Project, Goldwater Institute, Law Enforcement Action Partnership and New Civil Liberties Alliance filed a cross-philosophical brief arguing that the nation needs a reevaluation of the excessive force jurisprudence and also needs to get back to the original principles of this country’s founding, specifically the ideal that where there is a right, there must be a remedy. The 5th Circuit’s decision cannot be allowed to stand lest this foundational principle be denied to those who most need it.

“We are grateful for the support of esteemed Professors Schuck and Stoughton, and of the amazing cross-philosophical group of amici,” said Scott Bullock, IJ president and general nutjob.

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An Inmate Allegedly 'Leaking Blood All Over' Was Denied Medical Treatment for Hours. The Prison Guard Gets Qualified Immunity
 

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In October 2014, Charles Wade, then an inmate at United States Penitentiary in Atlanta, Georgia, injured his hand and was escorted on a 10-minute walk from the kitchen to a holding cell by Captain Gordon Lewis. Wade says that over the course of that walk, he was "leaking blood all over" and left "a path of blood," but that his requests to go to the infirmary were ignored. He would stay in the holding cell for several hours before receiving any attention from a prison nurse. His injuries eventually worsened: Though he put in a request for help after his hand began to swell, staff did not tend to him until a day later when he flagged an officer and told a nurse his pain was registering as a ten out of ten. He ultimately required hospital treatment outside the prison.

In awarding Lewis qualified immunity, the 11th Circuit made a few distinctions from previous case law. "In [a prior ruling], the plaintiff suffered an injury to his head," wrote Judge Elizabeth L. Branch, "whereas here, Wade suffered an injury to his hand." She also noted that "the quantity of blood is different," because the defendant in a previous case had "blood soaked [on] his clothing [and] pooled on the floor." Also different is the location of the plaintiff: Wade was in a holding cell, sitting three feet from the infirmary, whereas the plaintiff in the preexisting precedent was in a hospital.

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Should justice really turn on whether a judge thinks a hand injury is serious enough, or there's enough blood?

The article goes on to point out that, had a jury been allowed to deliberate on the situation, the prisoner might not have done well. He said he was cutting a can open with a knife. Other inmates said he was in a fight. Without hearing more, who cuts a can open with a knife?

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5 minutes ago, Excoded Tom said:

An Inmate Allegedly 'Leaking Blood All Over' Was Denied Medical Treatment for Hours. The Prison Guard Gets Qualified Immunity
 

Should justice really turn on whether a judge thinks a hand injury is serious enough, or there's enough blood?

The article goes on to point out that, had a jury been allowed to deliberate on the situation, the prisoner might not have done well. He said he was cutting a can open with a knife. Other inmates said he was in a fight. Without hearing more, who cuts a can open with a knife?

reason.com and ij, they have all the good stuff for us. :rolleyes:

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10 minutes ago, jocal505 said:

what continues (and repeats), dogballs, is a flat learning curve. ;) 

That is the pattern I see with non-readers.

Just in case, here's a source you might actually approve. I mean, if you wanted to read and discuss the thread topic instead of gossiping about me.

  

On 12/27/2020 at 7:33 AM, Excoded Tom said:
On 5/10/2020 at 7:20 AM, Polytelum Tom said:

That was part 1 of a four part (so far) series by reuters.

Part 2: Wrong place, wrong time

Part 3: Dueling Rights

Part 4: Color of suspicion

 

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51 minutes ago, Excoded Tom said:

instead of gossiping about me.

Hold the phone, Victimboi. If you can read, then go study the six aspects which increase suicide in Japan. It's very interesting, actually--it would expand your world, if you would ever get your head out of your jaded Libertarian's sources...via reading objective info.

 

Gossip? You wish. You come here, you do what you do, and you leave a certain trail. This is your purpose, here, to leave that trail, eh? And I have observed your trail, and I have made comments about the trail. You present some shabby shit, full of dark money and gunz, while exploiting the racial divide. Sorry, but I find that your input is fundamentally lacking in the humane basics.

You need to defend the trail now, sonny boy...but your once-fine mind is quite locked into reason.com and the IJ, and CATO. Their trajectory is predictable, and their info selective. Dogballs.

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On 8/7/2021 at 5:35 PM, Ishmael said:
On 8/7/2021 at 5:29 PM, Fah Kiew Tu said:

Probably a really high correlation between the vaccine refuseniks and the hard-arse racist element in the police force so - win-win.

FKT

With a heavy dusting of stupid on top.

I keep pondering something: why are so damn many people so in sync with the stupid?

TO PROTECT AND SERVE. Hmmm. I am VERY appalled by this union.

 

Yeah, speaking for myself, I find myself wishing ill health upon these hardheads, just because. Then I expect better of myself.

I'll go with "may the fucking light clue descend upon them, and soon."

 

 

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We all know that I EAT ASS bumper stickers are protected by the first amendment.

But that's not all there is to the issue.

Cops Get Qualified Immunity After Jailing Florida Man for 'I Eat Ass' Bumper Sticker
 

Quote

 

New life was injected into a free speech legal saga over an "I Eat Ass" bumper sticker yesterday when a federal judge ruled that the expression might violate Florida's obscenity law and would thus be unprotected by the First Amendment.

At the center of the odyssey is Florida man Dillon Shane Webb, who was pulled over in May of 2019 after Columbia County Sheriff's Deputy Travis English took exception to the sticker. Webb declined to censor it on the spot, his vehicle was searched, and he was subsequently arrested and booked in jail for "obscene writing on vehicles" and "resisting an officer without violence." (The "resisting" in question refers to his refusal to alter the sticker's appearance at the officer's demand.)

Those charges were dropped shortly thereafter, with the State Attorney's Office citing the First Amendment.

But the U.S. District Court for the Middle District of Florida ruled yesterday that the case is not so cut and dry, awarding qualified immunity to English and thus dooming the suit Webb brought against him for allegedly violating his free speech rights and for falsely arresting him.

...

Yet the law in question—Fla. Stat. § 847.011(2), which prohibits "any sticker, decal, emblem or other device attached to a motor vehicle containing obscene descriptions, photographs, or depictions"—is unconstitutional on its face, according to Eugene Volokh, a professor of law at the University of California at Berkeley. "This entire provision is therefore unconstitutionally overbroad and thus invalid on its face, and thus can't be applied even to possession of obscenity in public," Volokh argued in May 2019.

...

Ironically, there was a ruling that may have helped Webb. Nieves v. Bartlett, a 2019 Supreme Court decision, holds that officers may be held liable if they "have probable cause to make arrests, but typically exercise their discretion not to do so." One would assume that applies here, where the officer surely should have exercised his discretion not to make an arrest over a bumper sticker.

Yet in an apt demonstration of how lopsided qualified immunity doctrine is, Judge Howard noted that the Supreme Court handed that particular decision down three weeks after Webb's arrest. "As such," she wrote, "as of the date of Webb's arrest, the right to be free from a retaliatory arrest that was otherwise supported by probable cause was not clearly established."

 

Uh huh. Because prior to the court ruling, no one could possibly figure out that a retaliatory arrest for protected expression just might be wrong.

 

 

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Wise Latina on Qualified Immunity
 

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...

In the Court's orders released Monday, Sotomayor objected to her colleagues' refusal to hear a plea brought by the family of a man killed by a police officer. The man "never threatened the officer," Sotomayor notes, and in that moment arguably presented a danger only to himself. The cop got qualified immunity anyway.

"I add only that qualified immunity properly shields police officers from liability when they act reasonably to protect themselves and the public," she wrote. "It does not protect an officer who inflicts deadly force on a person who is only a threat to himself."

Though the stereotype is that such decisions are decided along ideological lines, Sotomayor was alone today. She is not alone, however, in her disdain for qualified immunity. Justice Clarence Thomas is the most reliably outspoken detractor.

...

 

Sotomayor and Thomas make a cute couple.

 

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More prosecutorial absolute immunity
 

Quote

 

...

Lefebure found herself in the home of her cousin's husband, Barrett Boeker—then the assistant warden at Louisiana State Penitentiary, also known as Angola—during flooding in Baton Rouge. Lefebure "alleges that Boeker raped and sexually assaulted her on multiple occasions there. First, he raped her in front of a mirror, where he made her watch, while telling her that no one would hear her scream," according to the 5th Circuit's rendering. "Later, he sexually assaulted her with a foreign object, after picking the lock of the room where she was attempting to hide. Afterward, she tried to lock the door again, but he again proceeded to pick the lock and blocked her escape."

A medical exam found bruises, redness, and irritation present on her arms, legs, and cervix, leading to Boeker's eventual arrest for second degree rape.

Yet he was mysteriously never indicted.

Following the arrest, Lefebure claims that District Attorney D'Aquilla "refused to collect and examine the rape kit," "made handwritten notes on the police report highlighting only purported discrepancies in Lefebure's account of the events and presented that report to the grand jury," "declined to meet or speak with her about the alleged assaults before the grand jury proceeding," and "failed to call various witnesses who could have corroborated her version of the events."

...

 

But that's OK.
 

Quote

 

...

Judge Ho—the same judge who said that police officers need to retain qualified immunity "to stop mass shootings"—struck down that idea, instead insisting that D'Aquilla be immune for his investigatory negligence just as he is immune for his prosecutorial negligence. "Lefebure's story is particularly appalling because her alleged perpetrator holds a position of significance in our criminal justice system as an assistant prison warden. We expect law enforcement officials to uphold the law, not to violate it—to protect the innocent, not to victimize them," wrote Ho. "But none of this changes the fact that our court has no jurisdiction to reach her claims against the district attorney, who for whatever reason declined to help her." In a rare move, that elicited a rebuke from three retired federal judges, who asked to file a brief in support of Lefebure. Last week, Ho said they could proceed, although he contends that her suit is doomed.

As for Boeker, he lost his job in May of last year after he was arrested on felony charges—not for the alleged rape, but for assaulting an inmate with a fire extinguisher.

 

Uh huh. Whatever reason. And that's all the reason that is needed if you have absolute immunity in your discretion about whether to do your job.

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48 minutes ago, Mark K said:

Ask Soto Meyer and Thomas if they expect a cop with no limited immunity from personal lawsuits to arrest a guy like Don Trump. For anything. 

Why? No one is proposing no immunity. Just no immunity if you break the law or violate constitutional rights. I'd think cops could manage to do their jobs without breaking the law or violating constitutional rights, but I guess this is a problem for some.

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22 hours ago, Excoded Tom said:

Why? No one is proposing no immunity. Just no immunity if you break the law or violate constitutional rights. I'd think cops could manage to do their jobs without breaking the law or violating constitutional rights, but I guess this is a problem for some.

Because guys like Trump can put a legal team with a couple million to spend on suing you with a bunch of BS and you don't have the funds to defend. 

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On 10/16/2021 at 3:55 PM, Mark K said:

Because guys like Trump can put a legal team with a couple million to spend on suing you with a bunch of BS and you don't have the funds to defend. 

That kind of argument only works on the uninformed.

Without qualified immunity, wouldn’t many government workers be financially ruined by court decisions against them?

Quote

No. Nearly all judgments and settlements against government workers are paid by government employers or their insurers. In fact, academic research has found that when qualified immunity has been overcome, “individual officers contributed to settlements in just 0.41% of these cases, and paid approximately 0.02% of the total awards to plaintiffs.” There is no reason to believe that ending qualified immunity would cause a shift in those numbers.

Oh no! They almost never contribute almost nothing! We'll run out of cops, just like we had no cops before SCOTUS invented qualified impunity in the 80's.

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9 hours ago, Excoded Tom said:

That kind of argument only works on the uninformed.

Without qualified immunity, wouldn’t many government workers be financially ruined by court decisions against them?

Oh no! They almost never contribute almost nothing! We'll run out of cops, just like we had no cops before SCOTUS invented qualified impunity in the 80's.

RIF. It's the defense against a Trump legal team they can't afford and will be highly incentivized to not risk. Furthermore you are dragging examples from the world as it is, in which they have limited immunity. You want to end that, remember?? 

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14 hours ago, Mark K said:

RIF. It's the defense against a Trump legal team they can't afford and will be highly incentivized to not risk. Furthermore you are dragging examples from the world as it is, in which they have limited immunity. You want to end that, remember?? 

When I RIF, it seemed like you said,

On 10/16/2021 at 3:55 PM, Mark K said:

suing you with a bunch of BS and you don't have the funds to defend. 

I pointed out that it's not the individuals who pay, it's the employers.

Furthermore, settlement discussion is completely unrelated to QI because there's never a settlement if there's QI because there's QI. Kinda how that works.

In any case, the Supreme Court has acted and now officers can kneel on unresisting suspects' backs and cause injury without fear. I don't think that has ever caused any problems. At least, nothing similar enough has happened, it seems.
 

Quote

 

The Supreme Court on Monday issued two opinions awarding qualified immunity to police officers accused of brutality, overturning lower court decisions that came to the opposite conclusion. The Court has thus prohibited the alleged victims from seeking accountability in civil court.

...

In the first case, Officer Daniel Rivas-Villegas responded to a 911 call from a 12-year-old, who was afraid that Ramon Cortesluna, her mother's ex-boyfriend, would hurt her and her family. When Rivas-Villegas apprehended Cortesluna on the ground, he allegedly injured him by digging his knee into his back for eight seconds. According to the U.S. Court of Appeals for the 9th Circuit, it was already clearly established law that an officer violates the Fourth Amendment when he acts in such a way with "suspects who were lying face-down on the ground and were not resisting either physically or verbally, on whose back the defendant officer leaned with a knee, causing allegedly significant injury."

The Supreme Court disagreed, writing that there was no preexisting court precedent quite similar enough to exactly what happened between Rivas-Villegas and Cortesluna such that the officer would have been on notice that his conduct was unconstitutional.

...

 

Maybe if he kneeled on him long enough to kill him we could find a similar precedent?

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The Supreme Court Deals a Harsh, Unanimous Blow to Police Reform

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...

On Monday, though, the court dashed any hopes that it would seriously reconsider the doctrine. Rivas-Villegas and Tahlequah are blunt decisions filled with harsh language toward the lower courts for daring to deny qualified immunity. In both cases, the lower courts cited precedents with roughly similar facts in which they found a violation of a “clearly established” right. Yet SCOTUS retorted that they had defined these rights “at too high a level of generality.” It insisted that these precedents were “materially distinguishable” on the basis of minor differences in fact patterns. For example, in Tahlequah, the officers walked at a normal pace toward the victim; in a past case, the officers sprinted toward him. In Rivas-Villegas, the officer merely placed his knee on the victim; in a past case, the officer “dug his knee into” him. These distinctions, the court concluded, are enough to merit qualified immunity.

The court’s hair-splitting exercise illustrates what one judge called an “Escherian Stairwell.” No two cases are exactly alike; there is always a way to distinguish precedents. If a court wants to grant qualified immunity, it can almost always find some way to differentiate a previous case from the one before it. In Monday’s decisions, SCOTUS sent a message that it will flyspeck lower court decisions granting qualified immunity, scolding them for ruling against cops in all but the most egregious cases. Rivas-Villegas and Tahlequah tell judges that they are on much firmer ground when they shield police from civil suits. The rulings incentivize decisions in favor of the police, even in cases with brutal facts. And so, by extension, they normalize reckless and violent behavior by law enforcement officers, who can remain confident that SCOTUS won’t force them to answer for their misconduct.

...

 

and

Supreme Court just doubled down on flawed qualified immunity rule

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...

The Supreme Court has explained that factually similar cases are necessary to put an officer on notice that what he did was wrong. In the court’s own words, factually similar cases are necessary to “clearly establish” the law because "it is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts."

But are officers actually educated about the facts and holdings of these cases? The answer is an unequivocal no.

I examined hundreds of use-of-force policies, trainings and other educational materials received by California law enforcement officers. I found officers are educated about watershed decisions like Graham but are not regularly or reliably educated about court decisions interpreting those watershed decisions – the very types of decisions that are necessary to clearly establish the law for qualified immunity purposes. 

...

If we end qualified immunity, officers will still not violate the Constitution if they act reasonably because courts will continue to assess whether an officer's decision to use force was reasonable under the framework supplied by Graham – which requires that courts consider the totality of the circumstances not “with the 20/20 vision of hindsight” but with the recognition that “police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” 

But if we keep qualified immunity, the definition of “clearly established law” should be changed to reflect how officers are actually educated about the scope of their authority.

If the goal of qualified immunity is to give officers fair notice, and they are on notice of watershed decisions like Graham – but not educated about the facts and holdings of court decisions applying Graham – then "clearly established law" should be defined much more generally.  

 

Funny how a Slate legal analyst and a UCLA law prof sound a bit like Koch-$pon$ored propagandists, isn't it?

 

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Qualified Immunity's Boldest Lie
 

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...

Whether or not the Court follows through on that alarming implication, the very notion of "fair notice" to police officers is based on what UCLA law professor Joanna Schwartz calls "qualified immunity's boldest lie": the assumption that cops keep abreast of relevant case law, such that they would know when their actions closely resemble conduct that was previously deemed unconstitutional. Schwartz's research, which she reported last May in The University of Chicago Law Review, documents a yawning gap between that implausible assumption and the reality of how cops are actually trained.

"Nowhere in the Court's decisions is consideration given to how, exactly, police officers are expected to learn about the facts and holdings of the hundreds—if not thousands—of Supreme Court, circuit court, and district court opinions that could be used to clearly establish the law for qualified immunity purposes," Schwartz notes. "Nor has much consideration been given to the likelihood that police officers recall the facts and holdings of these hundreds or thousands of cases as they are making split-second decisions about whether to stop and frisk someone, search a car, or shoot their gun."

Schwartz examined "hundreds of use-of-force policies, trainings, and other educational materials received by California law enforcement officers." She found that the information in these materials was generally limited to the broad principles laid out in major Supreme Court rulings—principles that the Court has said are not sufficient to show that an officer's alleged conduct violated "clearly established" law.

...

While "police departments regularly inform their officers about watershed decisions like Graham and Garner," Schwartz found, "officers are not regularly or reliably informed about court decisions interpreting those decisions in different factual scenarios—the very types of decisions that are necessary to clearly establish the law about the constitutionality of uses of force." That conclusion is based partly on Schwartz's examination of California police department policy manuals, which "reference or incorporate the constitutional standards from Graham and Garner,
but rarely reference any cases in which Graham and Garner were applied."

Schwartz also read 329 police "training outlines" and found that more than three-quarters "referenced no court decision applying Graham and/or Garner." Even when such decisions were mentioned, "the outlines suggest that trainers do not educate officers about their facts and holdings." And while police training does "incorporate hypotheticals as a way to help officers develop an understanding about whether force is appropriate in various scenarios," the outlines "offer no indication that these scenarios are drawn from court cases." Schwartz found little evidence that prosecutors or newsletters were filling this gap in police knowledge.

"Even if law enforcement relied more heavily on court decisions to educate their officers about the constitutional limits of force, the expectations of notice and reliance baked into qualified immunity doctrine would still be unrealistic," Schwartz writes. "There could never be sufficient time to train officers about the hundreds—
if not thousands—of court cases that could clearly establish the law for qualified immunity purposes. Moreover, even if an officer did somehow come to learn about the facts and holdings of court decisions applying Graham and Garner, there is no reason to believe that an officer would think about those cases during the types of high-speed, high-stress interactions that often lead to uses of force."

Given this reality, Schwartz says, it "makes no sense to require plaintiffs to plumb the depths of Westlaw for factually similar lower court decisions as proof that officers were on notice of the unconstitutionality of their conduct." Because that requirement is based on a plainly erroneous premise, she says, it "does not advance the stated goals of qualified immunity."

...

 

So the required "fair notice" isn't given and for all practical purposes can not be. But it's still required.

 

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Alec Baldwin knows a wrongful shooting when he sees one.

He saw one in 2017, when a cop shot a guy.

Appellate judges rule in favor of Dillan Tabares’ mother in civil suit against city of Huntington Beach
 

Quote

 

...

Huntington Beach City Atty. Michael Gates said Monday that lawyers are petitioning to have the case reviewed again by the Ninth Circuit Court of Appeals with an “en banc” panel.

If the rehearing is granted, the case would be heard before a larger panel of 11 judges, Gates said.

“We’re obviously disappointed by the ruling,” Gates said. “We believe that the three-judge panel got it wrong and didn’t see the issues correctly or apply the law correctly ... I go back to what the officer did in the circumstances that he was faced with. He did everything right under the law. Qualified immunity should shield him from a case like this, and we’re going to take every step necessary to defend our officers, especially those out in the line of duty that are faced with threat of violence or death themselves. We have to protect our officers, and we have to fight these fights. That helps to keep them safe, frankly.”

 

Hmm... Alec is an authority on the subject, but I'm not so sure the cop was wrong in this case.

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On 9/19/2020 at 5:19 AM, Seriatim Tom said:

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

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

 

5th Circuit reversed qualified impunity for blogger in pajamas
 

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...

The court held that “it should be patently obvious to any reasonable police officer that the conduct alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights.” The court explained: “As the Institute for Justice rightly observes, the position urged by the City of Laredo in this case is ‘dangerous to a free society,’ for ‘[i]t assumes that the government can choose proper and improper channels for newsgathering — indeed, that the government can decide what is and is not newsworthy.’”

Again citing IJ’s amicus brief, the court reasoned that, “There is a big difference between ‘split-second decisions’ by police officers and ‘premeditated plans to arrest a person for her journalism, especially by local officials who have a history of targeting her because of her journalism.’”

...

Known by the nickname “Lagordiloca,” which is Spanish for “the big crazy lady,” Villarreal is a popular journalist in her community. She’s been cruising around Laredo since 2015, seeking stories to cover, ranging from car crashes to immigration raids. When she arrives on the scene of whatever she’s covering, she begins livestreaming on her Facebook page.

Her critical reporting of the police made her a target for retaliation. They started using intimidation tactics to get her to stop reporting. When that didn’t work, the police found an odd state law they used to arrest her. The statute prohibits “misuse of official information,” and police argued that because she had obtained information by asking questions to an unauthorized officer, she was in violation of this seldom-used law. But this basic newsgathering method—asking the police questions—is what journalists do every day. Under these circumstances, the 5th Circuit rejected the officers’ pleas for qualified immunity.

...

 

Questioning cops is misusing official information in the wacky world of qualified impunity. I'm glad the 5th circuit put an end to it in this case, but the fact that it's a question at all is disturbing.

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In Bivens news, SCOTUS has agreed to hear

Egbert v. Boule

Quote

Issues: (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

 

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A Cop Was Indicted for Homicide After Shooting a Fleeing Driver. He Still Got Qualified Immunity.
 

Quote

 

Bau Tran, a police officer with the city of Arlington, Texas, is currently facing up to two years in state jail for criminally negligent homicide after killing a motorist who was trying to flee a traffic stop. A jury of his peers will decide if Tran should spend time behind bars for reaching into O'Shae Terry's window and shooting him four times after the man was initially pulled over for an expired registration.

...

"To overcome qualified immunity, the law must be so clearly established that every reasonable officer in this factual context—an officer holding onto the side of a fleeing car where the driver has ignored instructions to stop—would have known he could not use deadly force," wrote Judge Edith H. Jones of the U.S. Court of Appeals for the 5th Circuit. In doing so, her decision affirmed the lower court ruling that there was no prior decision exactly mirroring what happened between Tran and Terry.

...

Cato's brief also asked that the 5th Circuit formally rule Tran's conduct unconstitutional. Though qualified immunity often requires those suing an officer to furnish a preexisting court decision litigating a near-identical scenario, the Supreme Court has ruled that lower courts can analyze the case law while punting on the constitutional question entirely. It's created a vicious cycle, where plaintiffs are told to find a complementary decision that judges often decline to set when given the chance.

The 5th Circuit answered that request here, although in reverse: The appellate court ruled that Tran's conduct was specifically not unconstitutional. "Tran's use of deadly force was not excessive under the circumstances," Jones wrote, "because he could reasonably apprehend serious physical harm to himself as an unwilling passenger on the side of Terry's fleeing vehicle." Ironically, Tran's decision to jump onto the vehicle and kill Terry arguably put him in more danger, as the officer fell from the side while Terry lost control of the car as he was dying behind the wheel. (The body camera footage can be found here, and you can decide for yourself.) 

 

Can't have those expired registrations.

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“The Police Fatally Shot a Young Girl. Two Teenagers Are Charged With Murder.”

It began, prosecutors say, when two teenage boys, carrying a grudge between them and the guns to settle it, exchanged gunfire outside a high school football stadium just as a game was winding down in the suburbs of Philadelphia.

It ended with the death of an 8-year-old girl named Fanta Bility — killed not by the two boys, but by a barrage of bullets unleashed by three police officers on the scene, who began firing toward a car they mistakenly believed was the source of the gunshots.

Now, more than two months after the fatal police shooting that shook the small town of Sharon Hill, criminal charges have been brought in the case — but not against the three officers. The two teenage boys have been charged with first-degree murder for setting in motion the events that led to the death of the girl, a daughter of West African immigrants who was attending the game to watch her sister, a cheerleader, and her cousin, one of the football players.

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The decision by prosecutors to charge the two teenagers, even though they did not fire the shot that killed the girl, while allowing the police officers involved to keep their jobs, has stirred outrage in the community and angered her family who worry that the police will ultimately evade accountability.

The charges rely on a legal theory known as “transferred intent,” which prosecutors believe applies in this case because they say the two teenagers had intended to kill each other, and the result of their actions was Fanta’s death. But experts say prosecutors are stretching the definition of “transferred intent” and could have difficulty making the charges stand up in court.

Prosecutors say that the police role in Fanta’s death is still under investigation and that a grand jury will begin reviewing the case on Thursday “so that it may be determined whether the police officers’ use of deadly force was justified,” District Attorney Jack Stollsteimer of Delaware County said in a statement.

“I ask for the community’s continued patience as the grand jury undertakes its investigation,” he said.

Philip M. Stinson, a professor of criminal justice at Bowling Green State University who studies police violence, said, “It sounds like a lot of smoke and mirrors to deflect from police accountability.” He added, “It makes no sense to shoot into a moving vehicle.”

Bruce L. Castor Jr., the lawyer for the Bility family, who has filed a lawsuit on its behalf against the city of Sharon Hill and its police department, said the girl’s parents were angered to see the charges against the teenagers. He said the family believed that the charges were a smoke screen designed to shield the police from legal consequences for killing Fanta. (The family, through Castor, declined to comment.)

Castor, a former acting attorney general of Pennsylvania who was one of former President Donald Trump’s defense lawyers during his second impeachment trial, said he believed that a conviction of the two teenagers would be difficult at trial.

“I’m surprised that the district attorney was that aggressive but I certainly wish him well,” Castor said. “I don’t immediately see how the doctrine of transferred intent applies under these circumstances.”

The shootings began on the evening of Aug. 27 just as the last minutes were ticking off the clock of the season-opening football game at Academy Park High School. Spectators were already streaming for the exits. On the radio, the announcer was giving the final score — a 42-0 win for the home team — when bursts of gunfire could be heard. On the field, players hit the ground seeking safety.

Prosecutors say a dispute had erupted during the game between the two boys — one 16, the other 18 — and their group of friends. They say one of them flashed a gun nestled in his waistband as he left the game and later pulled it out and began shooting toward the other group of teenagers. The other boy, having run to his car to retrieve a 9-mm Taurus pistol, returned fire and wounded a bystander, a witness told investigators.

A group of police officers, about 140 feet away, fired 25 shots in return, killing Fanta and wounding three other people, including an older sister.

The gunfight between the two teenagers, Stollsteimer said in the statement, “precipitated the responsive discharge of weapons by police officers stationed near the entrance to the football stadium.”

The case, experts say, reflects one of the less-discussed ways that the law can shield the police from accountability — when officers kill someone but murder charges are brought against others who were on the scene and may have participated in separate criminal acts that instigated the police response.

“The main issue here is that the police were negligent and breached their duty by showing up and shooting into a crowd,” said Dan Kozieja, of Delco Resists, a local social justice organization formed last year in the wake of the police murder of George Floyd. “Now they are trying to take the easy route out by pinning this murder on two young boys rather than taking accountability for their actions.”

BuzzFeed News, in an investigation published in August, reported on several similar cases around the country. Often in these cases, prosecutors invoked the so-called felony murder rule, which in some states allows for murder charges against someone who committed a felony that resulted in death, even if the person had no intent of killing someone.

In one case, in 2019 in Phoenix, police officers pulled over a car because they suspected the four occupants of committing a robbery. When one of them fled, the police shot him dead. The three others were charged with murder, while the police were not held accountable.

As the legal process plays out, state Sen. Anthony H. Williams, whose district includes Sharon Hill, has asked for calm.

Williams said he felt “blindsided” and “betrayed” when the charges were announced, since he said he had been in discussions about the case with the district attorney’s office.

“They were not the individuals who shot the little girl,” he said. “How in God’s name you can go from not charging individuals who were involved to charging individuals who were not involved is an exclamation point for the system to be changed. Not reformed, but to be dramatically changed. It’s mind-boggling.”

© 2021 The New York Times Company

 

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  • 3 weeks later...

  Funny exchange from General Anarchy:

13 hours ago, Mark K said:
14 hours ago, quod umbra said:

So you do believe Alec Baldwin deserves qualified immunity. Interesting.

Only in your imagination.  

Quod does seem to have a fundamental misunderstanding of the Supreme Court's policy.

Alec Baldwin, OTOH, knows all about it. Or maybe not.

On 10/28/2021 at 8:03 PM, Lochnerian Tom said:

Alec Baldwin knows a wrongful shooting when he sees one.

He saw one in 2017, when a cop shot a guy.

Appellate judges rule in favor of Dillan Tabares’ mother in civil suit against city of Huntington Beach
 

Hmm... Alec is an authority on the subject, but I'm not so sure the cop was wrong in this case.

 

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  • 4 weeks later...

Nebraska Town Sues Resident to Stop Sending Officials Letters, Ends Up Paying Him $16,000

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From Lori Pilger (Lincoln Journal-Star) Saturday:

An Ord man has agreed to a $16,000 settlement with the central Nebraska town that filed a lawsuit against him last year in an attempt to get him to stop writing letters and emails to city officials and the police department that they called "burdensome."

And from Judge John Gerrard in Brock v. City of Ord (D. Neb. Sept. 17, 2021), in the opinion denying the city's motion to dismiss the First Amendment retaliation claim (and denying qualified immunity):

[J]ust because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a state court to impose a prior restraint on the plaintiff's speech. The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victory—but instead, he's filed another lawsuit in response, despite facing no current peril.

 

This Court's docket is full of cases genuinely implicating lives, livelihoods, and liberty—but instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble. It is tempting to turn this car around and go straight home. But of course, as long as the parties intend to keep it up, the Court is duty-bound to preside, so instead, the Court proceeds to the merits….

 

His search for the merits sounds as exasperated as that last paragraph.

This one could really go a lot of places. It's a rare case in which qualified immunity was denied, it's a first amendment case, it's a case of trying to use lawsuits to suppress a protected right, as is happening at the moment in the abortion and gungrabbing areas.

But the judge had this to say about the QI claim:

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Putting it all together, every reasonable official would have understood
that baseless, retaliatory legal proceedings against a citizen for petitioning the
government violate the First Amendment. In fact, the defendants implied that
they knew a lawsuit lacking probable cause—such as the one Brock alleges was
filed—would likely be considered prohibited retaliation. See filing 14 at 10.
Therefore, Petska and Sikyta are not entitled to qualified immunity on the face
of the complaint, and the defendants' motion to dismiss Brock's § 1983 claim
will be denied as to all defendants.

He methodically laid out why it's "clearly established" that "baseless, retaliatory legal proceedings" are a no-no. Making it obvious that "clearly established" is a standard well beyond "obvious to everyone." It means "so blatantly obvious to everyone that even the most clever lawyer can't find a workaround."

 

 

 

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On 7/11/2020 at 6:48 AM, Lochnerian Tom said:

Or not. It turns out that it's not only obvious that using force on Mr. Timba when he was already restrained and subdued was wrong, it's clearly established under 5th Circuit law. Because being obviously wrong isn't enough.
 

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...

On the body camera footage, the officers can be heard making light of his apparent loss of consciousness. Asked if Timpa was still breathing, Dillard responded "I think he's asleep!" and said that he heard him "snoring." Dominguez and Vasquez then joined in, joking that Timpa was a schoolboy who didn't want to go to class but could be lured out of bed with some "tutti-frutti waffles."

The 5th Circuit was not convinced by the lower court's decision to shield the men from a jury. "DPD training instructed that a subject in a state of excited delirium must, 'as soon as possible[,] [be] mov[ed]…to a recovery position (on [their] side or seated upright),'" writes Judge Edith Brown Clement, "because the prolonged use of a prone restraint may result in a 'combination of increased oxygen demand with a failure to maintain an open airway and/or inhibition of the chest wall and diaphragm [that] has been cited in positional asphyxia deaths.'" She also notes that the training explicitly says that a subject suddenly becoming unresponsive is a sign that he may be dying.

But an officer's own training is not enough to overcome qualified immunity. A victim must find a closely aligned court precedent, as if cops are more likely to read case law texts than their own training materials. (This is why a group of Denver officers were given qualified immunity for searching a man's tablet without a warrant and attempting to delete a video of them beating a suspect, despite their training that this violates the First Amendment.)

Fortunately for Timpa's family, there is a precedent that applies here. "Within the Fifth Circuit, the law has long been clearly established that an officer's continued use of force on a restrained and subdued subject is objectively unreasonable," says Clement. In case you were wondering just how granular qualified immunity can be: The officers had convinced the lower court that none of those precedents applied because they didn't pertain specifically to putting a knee on someone's back.

"This opinion gives cause for optimism and pessimism," says Easha Anand, Supreme Court and appellate counsel at the MacArthur Justice Center and an attorney for Timpa's estate. "The cause for optimism is the 5th Circuit has reiterated now, as a doctrinal matter, [that] if the only difference you can find between case one and case two is the kind of force being used, that's not good enough." On the pessimistic side, the district court's decision "was not pulled out of left field," she says. Whether or not an alleged victim gets the privilege to go before a jury very much depends on which judges hear his case and how they choose to define the level of specificity required to "clearly establish" a constitutional right.

...

 

 

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4 different qualified immunity developments in a recent nutjob newsletter.

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  • Man is sent back to jail for attending his plea hearing drunk. Were Crawford County, Mich. jail officials who saw his delirium tremens symptoms—hallucinations, agitation, and disorientation brought on by alcohol withdrawal—deliberately indifferent for not seeking medical treatment until it was too late? Sixth Circuit: A jury might think so. No to qualified immunity; yes to trial.

...

  • Allegation: Motorist arrested for suspected DUI turns out to have a prescription for the only drug found in his system. He dies after going without medication, experiencing mental health crisis, and scuffling with Willcox, Ariz. jail officers. Ninth Circuit: Qualified immunity for punching, tasing, and pinning him down until he was restrained. No qualified immunity for tasing and choking him after he was restrained. Also Ninth Circuit: Where’s the video?

...

  • Allegation: On learning one of her dancers, a high school senior, had been selected to be on a major university’s dance team, Overland Park, Kans. dance coach texts her disappointment to a colleague (cleaned up): “It actually makes my stomach hurt. Bc she’s f*****g black. I hate that.” The principal fires the coach, but the coach, among other things, encourages the dancer’s teammates to be unkind to her. (They oblige.) Tenth Circuit: There may not be a case right on point, but it’s been obvious since the 1950s that treating African-American students differently because of their race is unconstitutional. No qualified immunity for the coach.

...

  • And in en banc news, the First Circuit will reconsider its (2018, unpublished) decision granting qualified immunity to Massachusetts prison officials who allegedly kept an inmate in solitary confinement for 611 days without adequate justification or meaningful review.

...

 

So three no's to QI and one second look. That's pretty darn unusual.

Also from that newsletter.

  • Quote

    Decades ago, a group of RV owners purchased 50-year memberships to an RV park on the banks of Lake Chelan, Wash. Yikes! The RV park only had a 25-year lease. Can the RV owners stay? Ninth Circuit: Well, it’s complicated—this is American Indian land currently held in (disputed) trust by the Bureau of Indian Affairs, and resolving the question requires our delving into 19th century land ownership, 20th century executive orders and treaties, and 21st century estate statutes. The short answer is the RV owners are going to have to find somewhere else to vacation.

     

That's kind of funny but doesn't seem all that complicated to me. All the other stuff aside, you can't sell a 50 year membership when you don't have 50 year rights.

 

 

 

 

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  • 3 weeks later...
On 11/7/2021 at 4:36 AM, Pertinacious Tom said:

In Bivens news, SCOTUS has agreed to hear

Egbert v. Boule

 

Set for argument March 2nd.

There are a couple of related cases in the works too.

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...

The Court has yet to announce if it will hear two of those cases. The first pertains to a federal officer who devised a fake sex trafficking ring and jailed a teenage girl on bogus charges for two years. The second involves a Department of Homeland Security (DHS) agent who, outside of a bar, tried to shoot a man he had a personal issue with. Federal courts in both cases found that the two government agents violated clearly established law but are protected by absolute immunity and thus cannot be sued solely because of their status with the federal government.

But one similar case has worked its way up to the justices, who are scheduled to hear it on March 2—though it appears they may be poised to make it even more difficult for victims of federal government abuse to achieve any meaningful remedy when their rights are violated.

In 2014, U.S. Border Patrol Agent Erik Egbert followed a man to a bed and breakfast where he was staying in Washington state. That man was from Turkey, and Egbert assumed the guest may have come to the U.S. illegally based on the inn's proximity to the Canadian border.

He was incorrect. But Egbert pursued the man and declined to leave the private property after its owner, Robert Boule, requested that he do so. In response, Egbert pushed Boule into a car and then to the ground, ultimately resulting in injuries to Boule's back that required medical treatment. Boule subsequently filed a complaint with Egbert's supervisor, which the Border Patrol agent countered with threats to sic the IRS on him with a business audit—a promise he made good on.

It's been almost eight years, and Boule has not yet had his day in court, having spent the better part of the last decade asking the government for the privilege to appear before a jury and ask for damages. Thus far, he's been successful: Both the district court and the U.S. Court of Appeals for the 9th Circuit sided with Boule and said he should have the opportunity to bring a civil suit against Egbert for infringing on his First and Fourth Amendment rights.

That shouldn't be surprising. Under a 1971 Supreme Court precedent—Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics—federal agents may be sued when they violate someone's rights. But in recent years, the high court has proceeded to dilute its own decision in significant ways, now requiring that federal agents may not be sued if a federal judge pinpoints "special factors counseling hesitation." You can see where such a subjective standard might go awry.

It was that standard that shielded Officer Heather Weyker, who conjured the sex trafficking ring, and DHS Agent Ray Lamb, whose gun jammed when he attempted to shoot the man he had a feud with. Neither one received qualified immunity, the legal doctrine that protects certain government officials from civil liability if the way in which they misbehaved has not been "clearly established" in a prior court ruling. Weyker and Lamb did violate the law, as the courts acknowledged. Yet although they were denied qualified immunity, they received absolute immunity and can't be sued simply because of their status as a federal employee—something that should signify a responsibility to protect the public, not a green light to violate their rights without fear of accountability.

Perhaps in a testament to the egregiousness of Egbert's misconduct, he did not clear the low bar passed over by Weyker and Lamb. So he is requesting that the Supreme Court lower the bar even further. A decision in Boule's favor would "undercut the ability of Border Patrol agents to fulfill their basic mission of securing the border, enforcing the immigration laws, and protecting national security," the government wrote in its petition for review, as if immigration officers must reserve the right to assault people and weaponize their power in illegal ways in order to do their jobs effectively.

"The stakes are very high," says Anya Bidwell, a nutjob at the Institute for Justice, a nutjob law firm that filed an amicus brief on Boule's behalf this week. If Egbert succeeds, "this would mean no Bivens remedy in the vast majority of cases. This would mean absolute immunity for federal police and other federal officials."

...

 

I don't see the nutjobs' amicus brief among the orchestrated chorus of amici on the scotusblog site yet, but am glad to see they're meddling as usual.

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Lawsuit Appeal Challenges Police Officer’s Ability to Threaten Innocent Bystanders
 

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On a cold winter night four years ago, Casondra “Cassi” Pollreis was an innocent bystander to a terrifying situation. Her two boys, Hayden and Weston—then 12 and 14 years-old—were walking home from their grandparents’ house when a police car stopped in front of them and an officer emerged with his gun drawn. Within moments, the officer started shouting “get on the ground” and proceeded to handcuff the boys and hold them at gunpoint.

Cassi rushed outside, and, as any mother would, attempted to defuse the situation. With her boys lying face down on the ground and the officer’s gun drawn on their backs, Cassi attempted to reason with the officer. “They are my boys … Are you serious? They are 12 and 14 years-old,” she said.

He replied: “And I’m looking for two kids about this age right now.” But he wasn’t; he was looking for three grown men and a woman who’d fled from police earlier in the evening. The boys and Cassi were completely innocent, but that didn’t stop him. “Get back!” he shouted as he drew his Taser on her. “I want you to get back in your house,” he demanded. Cassi complied, not wanting to make the situation worse. As she left her two boys under the officer’s gun, all she could do is say: “You’re ok guys, I promise.”

Eventually the officer’s sergeant arrived, assessed the scene, and quickly realized a mistake had been made. Minutes later he let the boys go. 

Cassi and her boys decided to try to hold the officer accountable. They filed a federal civil rights lawsuit against the officer with Fourth Amendment claims on behalf of the boys for the wrongful arrest, and on behalf of Cassi, who—as an innocent bystander—was threatened with being tased for her attempt to protect her children. The district court, citing qualified immunity, dismissed Cassi’s claim. But today, with the help of the Institute for Justice (IJ), Cassi has appealed her case to the 8th U.S. Circuit Court of Appeals. (While the district court denied qualified immunity on the boys’ claims, the 8th Circuit reversed and the U.S. Supreme Court refused to hear the boys’ appeal last week.) 

“Cassi is a quintessential innocent bystander,” said Anya Bidwell, a nutjob at the Institute for Justice, which represents Cassi. “She was, if anything, dramatically calmer than most mothers would have been, and yet the police officer refused to listen to her, and instead threatened her with a taser. Police do not get to randomly point weapons at Americans for no reason. We’re hopeful the 8th Circuit will see this case for what it is—an out-of-control officer who used his authority to terrify an innocent family.”

...

 

Cops make mistakes. Saying you're looking for two boys when in fact you're looking for two men and a woman isn't a mistake.

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  • 2 weeks later...

Clearly established: "Fuck the Police" is protected expression.
 

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Sheriff's deputies in Ohio didn't have probable cause to arrest a man for hurling vulgarities at them and wearing a t-shirt that said "fuck the police," the U.S. Court of Appeals for the Sixth Circuit ruled Tuesday.

The Sixth Circuit found Michael Wood had a First Amendment right to cuss out a gaggle of deputies who removed him from a county fair in 2016 after someone called 911 to complain about his shirt. The deputies also are not entitled to qualified immunity from Wood's suit, the Sixth Circuit ruled, because Wood's right to be free from arrest was clearly established by a long line of court opinions protecting obscene language directed at authorities.

"The Sixth Circuit got this one right, and we're very pleased with the result," says David Carey, deputy legal director of the American Civil Liberties Union of Ohio, which filed an amicus brief on behalf of Wood. "The ruling removes any doubt that criticism of police and their actions—even coarse and profane criticism—falls under the core protections of the First Amendment, and cannot be a lawful basis for an arrest on its own."

...

 

I agree with the ACLU guy.

 

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After Being Illegally Imprisoned for Almost a Year, Bobby Sneed Is Finally Free
 

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...

But his legal odyssey may not have reached its final denouement, should Sneed decide to file a civil suit against the government for the violation of his constitutional rights. "It's profoundly worrisome," says Frampton. "The sheer number of state actors…working to prolong Bobby's unconstitutional detention is disturbing."

Though many government agents worked to secure Sneed's post-parole imprisonment—from Attorney General Jeff Landry to Angola Warden Tim Hooper—the primary player was arguably Abbott. In a court filing, the government asserted that Sneed "failed to allege or show that Director Abbott possessed any actual statutory authority to take any official action" in Sneed's case. Abbott's emails, now released, tell a different story, with what appears to reveal him ordering the move and then apprising his colleagues of it.

I asked Sneed what he'd say to Abbott and company given the chance. "I would just…pray for them," he responds. "I keep them in my prayers."

 

He's 75 years old and doesn't sound like he wants to pursue it any more, but I hope he holds them accountable. I put it in this thread because I hope their culpability turns out to have been "clearly established" at the time.

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  • 3 weeks later...

Justices weigh the effect of foreign borders and national security in Bivens actions

Um, yeah, that's kinda what happened, if you want to confuse and bore the hell out of potential readers and avoid any potential clicks.

A Federal Agent Allegedly Violated the Constitution. SCOTUS Will Decide If He Can Be Sued for It.

That's a bit closer.

The real question they are considering: do federal agents have absolute immunity when they violate our rights?

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  • 3 weeks later...
On 2/10/2022 at 9:11 AM, Pertinacious Tom said:

Even more clearly established.

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And in en banc news, the Sixth Circuit will not reconsider its decision that police who arrested an Ohio fairgoer wearing a "Fuck the Police" T-shirt, and who made numerous statements along the same lines, are not protected by qualified immunity (despite state caselaw that says such speech constitutes disorderly conduct).

"...made numerous statements along the same lines" is a pretty funny way to put it.

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From the Letters in this week's New Yorker.

The MailMarch 21, 2022 Issue
The Mail
Letters respond to Margaret Talbot’s piece about Amy Coney Barrett, Merve Emre’s piece about “Ulysses,” and Alec MacGillis’s report on Germany’s coal exit.
March 14, 2022
Precedential Debate
I appreciated Margaret Talbot’s article about Amy Coney Barrett, and her discussion of stare decisis, the legal principle that guides judges to defer to precedents set by courts (“Amy Coney Barrett’s Long Game,” February 14th & 21st). In the context of Dobbs v. Jackson Women’s Health Organization, an abortion-rights case that currently sits before the Supreme Court, adherence to stare decisis would lead the Court to reaffirm Roe v. Wade. Talbot notes that Barrett described stare decisis as “not an inexorable command,” while Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor voiced concern about the ramifications of overturning prior rulings.

Though I share their wariness, ignoring precedent is not always a bad thing. Qualified immunity, a doctrine that was established by the Supreme Court in 1967, shields public officials accused of violating constitutional rights from civil lawsuits in all but the rarest cases, and has arguably allowed perpetrators of police brutality to evade accountability. Opponents of qualified immunity deride the principle as having been created by the Court out of whole cloth—an argument that mirrors one often employed by critics of Roe who are dismissive of its legal basis. Passing legislation banning qualified immunity at this time would require a level of bipartisan coöperation that Congress is unlikely to summon. For those of us who wish to see qualified immunity abolished, the prospect that the Court will one day disregard the precedents that created it is our greatest hope.

Jason Schlabach
Cincinnati, Ohio

 

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52 minutes ago, Fat Point Jack said:

From the Letters in this week's New Yorker.

The MailMarch 21, 2022 Issue
The Mail
Letters respond to Margaret Talbot’s piece about Amy Coney Barrett, Merve Emre’s piece about “Ulysses,” and Alec MacGillis’s report on Germany’s coal exit.
March 14, 2022
Precedential Debate
I appreciated Margaret Talbot’s article about Amy Coney Barrett, and her discussion of stare decisis, the legal principle that guides judges to defer to precedents set by courts (“Amy Coney Barrett’s Long Game,” February 14th & 21st). In the context of Dobbs v. Jackson Women’s Health Organization, an abortion-rights case that currently sits before the Supreme Court, adherence to stare decisis would lead the Court to reaffirm Roe v. Wade. Talbot notes that Barrett described stare decisis as “not an inexorable command,” while Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor voiced concern about the ramifications of overturning prior rulings.

Though I share their wariness, ignoring precedent is not always a bad thing. Qualified immunity, a doctrine that was established by the Supreme Court in 1967, shields public officials accused of violating constitutional rights from civil lawsuits in all but the rarest cases, and has arguably allowed perpetrators of police brutality to evade accountability. Opponents of qualified immunity deride the principle as having been created by the Court out of whole cloth—an argument that mirrors one often employed by critics of Roe who are dismissive of its legal basis. Passing legislation banning qualified immunity at this time would require a level of bipartisan coöperation that Congress is unlikely to summon. For those of us who wish to see qualified immunity abolished, the prospect that the Court will one day disregard the precedents that created it is our greatest hope.

Jason Schlabach
Cincinnati, Ohio

 

He's right but Sotomayor has expressed doubts about qualified immunity, as has Justice Thomas. So that is kinda bipolar, if not bipartisan.

We have seen an attempt at bipartisan action a couple of years ago.

  

On 6/6/2020 at 10:14 AM, Pertinacious Tom said:

Bipartisan Bill To End Qualified Immunity Introduced

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

 

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If you don't immediately tell a cop your name, he can inflict pain to get it out of you. So said the 5th circuit.
 

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...

U.S. District Judge John McBryde concluded that the record, which includes Hymond's cellphone video as well as the body camera footage, "is too uncertain to discount the plaintiff's version of what transpired." McBryde rejected Martin's motion for qualified immunity, which shields police officers from liability when their alleged misconduct did not violate "clearly established" law. While "it may well be that a jury would determine that Martin did not use excessive force," he said, "the court is unable to determine as a matter of law that Martin is entitled to qualified immunity."

When Martin appealed, however, the 5th Circuit accepted his version of events, which it was not supposed to do at this stage unless the existing evidence "blatantly contradicted" Craig's claims. McBryde thought it did not. But the appeals court, for reasons that are not entirely clear, disagreed. In a decision written by Chief Judge Priscilla Owen, the 5th Circuit concluded that Martin's manhandling of Craig et al. "was not objectively unreasonable." In any case, the court added, his conduct did not violate "clearly established" law.

In their petition for an en banc rehearing, Craig and Hymond argue that the 5th Circuit panel improperly discounted their claims and improperly substituted its assessment of the evidence for McBryde's. They also argue that the panel erred by determining that Martin's use of force did not violate "clearly established" constitutional rights, since case law makes it clear that the Fourth Amendment prohibits using force against a nonresistant arrestee.

The Institute for Justice (I.J.), in a brief supporting Craig's petition, zeroes in on Martin's decision to use a "pain control maneuver" on Hymond after he handcuffed her because she "did not immediately answer" when he asked for her name and age:

After Martin secured Hymond's mother and little sister in the back of his police vehicle, after the situation was de-escalating, after any conceivable threat to anyone's safety was fully extinguished, Martin unnecessarily re-escalated the encounter by confronting Hymond—who had been recording the incident from a distance and yelling at the officer that she was doing so—grabbing her, shoving her against his patrol car, ripping the phone out of her hand, and placing her under arrest for "interfering." But Martin's display of authority did not end there.

While Martin stood by his patrol vehicle, effortlessly holding Hymond by his side with a single hand, Hymond repeated that she saw Martin "kick her," referring to J.H. In response, Martin started questioning Hymond: "How old are you? What is your name?" Hymond did not immediately answer his questions. So, with Hymond's hands restrained behind her back, Martin jerked her arms up into the air, applying a pain control maneuver taught in police training, and repeated the question, enunciating in a slow, purposeful staccato: "What. Is. Your. Name?"

The 5th Circuit dismissed that use of force as "relatively minimal," adding that Martin jerked Hymond's arms "only after Hymond refused to provide Martin with her name." But deliberately inflicting pain on a nonresistant arrestee to obtain information is "obviously unconstitutional," I.J. says, and the appeals court's alarming acceptance of that practice needs to be corrected.

While the 5th Circuit described Hymond as "resisting," its basis for that characterization is thin. "Hymond was shouting at Martin throughout the entire confrontation," Judge Owen wrote. "She did not comply with any of Martin's commands or instructions….Hymond continued to verbally deride Martin while Martin was lifting her arms and immediately after he put her arms down. Given Hymond's continued resistance, Martin's use of force against Hymond was not objectively unreasonable."

Hymond's "shouting" was understandable given what was happening to her family, and criticizing a police officer, even loudly, is not a crime. Her alleged failure to comply with Martin's commands is likewise understandable given that he seemed to be arresting her because he was irked by her filming and her criticism. But notably missing from the 5th Circuit's summary is any allegation that Hymond assaulted or physically resisted Martin. And by the court's own account, the justification for the pain control maneuver was that Hymond refused to give Martin her name.

"Every reasonable officer would have known that inflicting pain to compel someone
to answer questions offends the Constitution," says the I.J. brief, which was joined by the American Civil Liberties Union. "If this decision stands, the law in this circuit is that an officer can purposefully inflict pain on a restrained, non-resisting person to compel her to speak, as long as, in the court's subjective opinion, the force was 'relatively minimal.'"

...

 

I agree with the ACLU and IJ. I suspect it was the filming, not the failure to give her name, that infuriated Martin. Bad cops don't like cameras.

 

 

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  • 2 weeks later...

Qualified immunity isn't yet an issue in this case, but...

The Supreme Court Says You Can Sue Cops Who Frame You on False Charges
 

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Police officers could frame people, file bogus charges, conjure evidence out of thin air—and, in most of the U.S., they would still be immune from facing any sort of civil accountability for that malicious prosecution. Until yesterday.

In January 2014, Larry Thompson's sister-in-law called 911 after noticing his baby had a rash. That call resulted in several police officers showing up at Thompson's Brooklyn apartment, entering without a warrant, arresting him when he objected to that, jailing him for two days, and charging him with obstructing governmental administration and resisting arrest after they allegedly lied about what happened.

The initial 911 call was bogus: Thompson's sister-in-law struggles with mental illness and assumed the mark was a sign of sexual abuse; an inspection at the hospital revealed it to be diaper rash. The charges resulting from that call were bogus as well; the prosecutor ultimately moved to dismiss them, and a trial judge closed the case.

Yet when Thompson attempted to sue the officers involved, he was barred by the U.S. Court of Appeals for the 2nd Circuit: In order to bring such a suit, victims were required to prove that false charges were dropped because the defendants in question had affirmatively proven their innocence.

Which is no feasible task. "When charges are dismissed, you generally have no opportunity to introduce evidence, let alone indicate your innocence," says Amir Ali, Executive Director of the MacArthur Justice Center and an attorney for Thompson.

Yesterday, the highest court in the country struck that requirement down, ruling that Thompson should indeed have a right to sue the officers at the center of his case. "A plaintiff such as Thompson must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution," wrote Justice Brett Kavanaugh for the U.S. Supreme Court. "We hold that a Fourth Amendment claim…for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence."

The absurdity of that standard was not lost on the court. "Requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a…claim when the government's case was weaker and dismissed without explanation before trial, but allow a claim when the government's evidence was substantial enough to proceed to trial," wrote Kavanaugh. "That would make little sense."

It was an untenable status quo, says Marie Miller, a nutjob with the Institute for Justice, a nutjob law firm that filed an amicus brief in Thompson's case. It "just flipp[ed] the whole principle of innocent until proven guilty on its head," she tells Reason. "In criminal proceedings, they're designed with the presumption of innocence in place. Criminal proceedings aren't designed to allow a person to prove that they're innocent. Indications of innocence are very rare."

...

 

I agree with the quoted nutjob about the issue that was decided. Kavanaugh was right about why the standard they overturned made little sense.

Qualified immunity may still protect the cops if no previous case has found that framing someone in this particular way was wrong.

 

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Got around to reading Alito's dissent in Thompson v Clark, joined by Thomas and Gorsuch.

He says the fourth amendment can't house a "malicious prosecution" claim at all because unreasonable seizure is so different. A seizure can be unreasonable without any malice toward a person but an unreasonable prosecution isn't malicious without malice. Also, a person can be prosecuted without ever being seized (release on own recognizance for example) but seizure is a required element in the majority opinion. Alito's take:

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First, it is not clear why this tort requires both a seizure
and a prosecution. As noted, the two do not always go to
-
gether, and if the aim is to pe rmit the victims of malicious
prosecution to sue under §1983, it is not clear why detention
should be required. While pr etrial detention certainly in
-
creases the harm inflicted by a malicious prosecution, such
a prosecution can be very damaging even if the victim is
never detained. See, e.g., M. Bigelow, The Law of Torts 204
(1875) (a plaintiff may show damage to “his person by im
-
prisonment, his reputation by the scandal, or . . . his prop-
erty by the expense”). The majority’s only answer to the
question why the claim requires a seizure is that it is
“housed in the Fourth Amendment,” ante, at 5, n. 2, but
that response begs the antecedent question whether the
Fourth Amendment houses a malicious-prosecution suit at
all.

He says the whole issue was spawned by a misreading of a terse note attached to an earlier case.

Makes some interesting points.

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SCOTUS asked to look at qualified immunity again in Cope v Cogdill

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After being arrested for a drug offense, pretrial detainee Derrek Monroe informed jail officials that he was suicidal and attempted to hang himself in his cell twice with bedding materials. Though Monroe was on suicide watch and a recent statewide memorandum had recommended phone cords in jail cells not exceed 12 inches because of the risk that longer cords would be used in suicides, jail officials then isolated Monroe in a new cell with a wall-mounted telephone with a 30-inch cord. When Monroe began to strangle himself with the cord, the lone jailer on duty stood outside the cell and watched, without calling 911 or attempting to render aid. The jailer called his supervisor, who arrived 10 minutes later, unwrapped the phone cord from Monroe’s neck, and called 911. But Monroe died at the hospital.

Monroe’s mother, Patsy Cope, filed suit, alleging that three jail officials acted with deliberate indifference by failing to render aid or call 911 as Monroe committed suicide in their presence, and by isolating Monroe in a cell with an obvious ligature even though they knew he was suicidal. The district judge determined that the jail officials were not entitled to qualified immunity. A divided panel of the U.S. Court of Appeals for the 5th Circuit reversed, concluding that the jailer who watched Monroe’s suicide without intervening was entitled to qualified immunity because, even though he “knew he should have” intervened, existing 5th Circuit precedent did not clearly establish the unreasonableness of his conduct. The panel further concluded that the jail officials who isolated Monroe with a long phone cord could not be held liable because, under 5th Circuit precedent, a phone cord is “not as obvious” a ligature as bedding.

Judge James Dennis dissented. He concluded that the jailer’s “glaring” inaction in the face of Monroe’s ongoing suicide was an “obvious” violation of his constitutional rights, and that “any reasonable officer should have realized” as much. Similarly, Dennis concluded that any reasonable officer should have understood that isolating a suicidal inmate in a cell with “an obvious potential ligature for suicide” — whether it be bedsheets or a phone cord — violated the Constitution. Dennis noted that the Supreme Court had only recently in Taylor v. Riojas summarily reversed the 5th Circuit in a qualified immunity case, holding that although there was no factually identical case on point, any reasonable correctional officer should have realized that keeping a prisoner in “deplorably unsanitary” conditions violated his rights against cruel and unusual punishment. By granting qualified immunity on the ground that no factually identical precedent involved phone cords rather than bedding, Dennis believed, the panel “repeat[ed] the very same analytical error [the 5th Circuit] made in Taylor and which the Supreme Court found necessary to correct.”

Cope now seeks Supreme Court review, supported by three amicus briefs. In her cert petition, she seeks fundamental reform of qualified immunity, which has come under attack in recent years. Likely mindful that the Supreme Court has denied past petitions seeking wholescale reform, she also presents narrower questions about the application of qualified immunity in her son’s case. We’ll have a better sense of the court’s plans when we see the order list Monday.

 

Really? You've decided to strangle yourself and you have in front of you a phone cord and a sheet.

Does anyone pick the sheet?

Or, more on point, if you know that a sheet could be used for that purpose, do you also know a wire could be too? I think the answer is yes, of course you do, everyone does.

But that answer doesn't give benefit of the doubt to cops.

Now we have another Justice who looks to cops like she might just need stopping and frisking. I think it's no coincidence that the two Justices who appear to cops to need stopping and frisking are also the main opponents of qualified immunity. So in addition to being glad we have a public defender on the courts, I'm glad we've got another stop and frisk target.

 

 

 

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17 minutes ago, Olsonist said:

Well, we all agree that you're a nut job and that you don't support the Duopoly. Most Republicans don't. That much is clear. About the judicial doctrine (judge made law) of police qualified immunity, do you have any history of asking this 'inconvenient' question during judicial nominations?

Yes. Do you have any such history, or for that matter any history of commenting on this issue at all. Do you agree with Trump and Biden on it?

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Cop Who Arrested High Schooler on 'Terrorizing' Charges for Class Joke Gets Qualified Immunity
 

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A police officer who questionably arrested a high school student on "terrorizing" charges cannot be sued in connection with the incident, a federal court recently ruled. But the decision making that official—along with a fiery dissenting opinion—shows how some facets of criminal justice reform do not have to be partisan.

...

 

That's an understatement. Qualified immunity seems to me to have bipartisan support, so is hardly partisan. Olsonist won't be along shortly, nor will he do anything useful on this issue, because TeamD. Not that anyone on TeamR is likely to help either. Bipartisan as hell.

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  • 2 weeks later...

Cops Who Arrested Man Over Fake Facebook Page Get Qualified Immunity
 

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In March 2016, Anthony Novak found himself in a jail cell for several days, his phone and computer seized by police. His offense: For 12 hours, he operated a parody Facebook page mocking the police department in Parma, Ohio, advertising fake community-outreach events like a "Pedophile Reform" meeting and a gathering with free abortions out of a police van.

After several people contacted the station, police went on to secure several warrants: a search warrant for Facebook, another for Novak's apartment, and an arrest warrant. He was prosecuted under an obscure Ohio law that prohibits using a computer to hinder police duties.

A jury wasn't convinced. Novak was acquitted, his peers unswayed by the claim that the approximately 10 phone calls the page elicited to the department caused a disruption in operations. "The statute he was charged under was clearly aimed at people who intentionally clog 911 lines or hack an agency's website," Ari Cohn, an attorney who focuses on the nexus between free speech and technology, tells Reason. "If creation of a parodical department page really has that level of effect, the Parma Police Department should do some serious soul searching as to what it's actually doing."

...

Yet a federal court was similarly not persuaded by a civil suit filed by Novak, who argued that the officers violated his constitutional rights, setting up a debate around overcriminalization and free speech.

"While protected speech can be evidence that a speaker committed a separate crime, the First Amendment bars its use as the sole basis for probable cause," writes Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit. Point for Novak. But some of Novak's other actions derailed his claim: "He also modeled his page after the Department's, using the same profile picture. He deleted comments that let on his page wasn't the official one. And when the Department tried to clarify that Novak's page was imitating its own, he copied the official page's clarification post word for word."

Put more plainly, Novak's words were protected speech. But scrubbing words and parroting the department might not have been, according to Thapar.

The decision goes on to grant the officers qualified immunity, which prevents state and local government actors from having to face civil suits for allegedly violating people's rights if there is no prior court precedent clearly litigating the facts of a plaintiff's accusation. His suit was therefore doomed. "Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech," notes Thapar.

Had Novak overcome qualified immunity, he was not guaranteed any monetary damages; he would merely have been given the opportunity to state his case before a jury for their review.

"The 6th Circuit's decision is just the latest exemplar of the absurdity that qualified immunity has wrought, with its unwarranted deference to police who violate constitutional rights," adds Cohn. "The parodical Facebook page is very clearly protected by the First Amendment, and the court's weaseling its way into finding a question about that beggars belief. The power of parody and satire draws in large part from its ability to closely mimic its target while adding absurdist exaggeration."

Though Thapar was not satisfied that the officers acted unreasonably under the law, he appeared skeptical that their actions were sensible. "Granting the officers qualified immunity does not mean their actions were justified or should be condoned…. Was Novak's Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak's and the government's time?" he asks. "We have our doubts."

 

I have doubts too, but granting qualified immunity does justify and condone the senseless prosecution and appeals. Not that the judge really had a choice, there being no close precedent. New tech means endless new ways to abuse rights, none of which will have a precedent because they're new.

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  • 2 weeks later...

In prosecutorial immunity news,

He Was Sentenced to Death After Law Enforcement Fabricated Evidence. A Federal Court Says He Can Sue.
 

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Wearry's conviction was overturned in 2016. He will be permitted to sue the government agents who fabricated evidence to put him behind bars, a federal court ruled last week.

"Nothing in the story the defendants invented was based on information the child had provided to the Detective or the District Attorney," writes Judge James L. Dennis of the U.S. Court of Appeals for the 5th Circuit. "Foster and Perrilloux detained and coerced Ashton into falsely testifying to a narrative that had no basis in any evidence gathered in the case, physical or testimonial."

At question was whether the two men would be entitled to absolute prosecutorial immunity, which, true to its name, essentially makes it impossible to hold prosecutors accountable when they violate your rights while advocating for the state.

But the majority declined to award that here. The alleged misbehavior on the part of D.A. Perrilloux was investigatory, not advocatory, they said. As for Foster, the judges pointed out the obvious: He is not a prosecutor and is therefore not entitled to prosecutorial immunity. "Foster argues that since he and Perrilloux are accused of committing the same fabricating acts, any entitlement the prosecutor might have for his actions the detective should have too," adds Dennis. "The Supreme Court has rejected this exact argument."

But what perhaps makes this case most ridiculous—a stratospheric bar to meet—is that it was not at all a guarantee that Wearry's claim would succeed. Indeed, according to some, it may be wrong on the merits.

Such was the argument put forth by Judge James C. Ho in a dubitante opinion—one which disagrees with the majority's legal reasoning but, in some sense, stops short of rebuking its conclusion. In Ho's view, there's some reason to celebrate.

But not because the law was applied accurately. The problem is the law is utterly rotten, constructed of a slew of immunity doctrines that give special protections to the government by the government, all while prohibiting victims—whether of a prosecutor, a police officer, a prison guard, a judge, a legislator, a public educator—from achieving any sort of recourse.

"Worthy civil rights claims are often never brought to trial. That's because an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978)—frequently conspires to turn winnable claims into losing ones," he writes. "This case illustrates that conspiracy in action."

The conspiracy, he says, is that Wearry should not, in fact, be able to bring his suit forward. Yet that's not because it ought to be that way. It's because, according to Ho's interpretation of absolute-immunity precedent, it is that way. Unfortunately so.

"The majority says it is 'strange' to apply prosecutorial immunity here. I agree," says Ho. "But a faithful reading of precedent requires us to grant it here, no matter how troubling I might personally find it."

Ho's rebuke of the immunity doctrines—legislated into existence by the Supreme Court—is somewhat of an about-face for him. In 2019, he wrote that qualified immunity is necessary to "stop mass shootings." The legal doctrine protects state and local actors, notably police, from facing similar federal civil suits if there is no prior court case on the books explicitly ruling the alleged misconduct unconstitutional. In plainer terms, it's how previous officers have been able to avoid their day in court for stealing hundreds of thousands of dollars, blowing up an innocent person's property, shooting children, and assaulting someone before filing bogus charges. No preexisting court precedents had enough factually similar details, so the victims could not proceed.

Contrast that with Ho's most recent characterization of qualified immunity: "It requires civil rights plaintiffs to prove not only a violation of their constitutional rights, but a 'clearly established' one," he notes in his dubitante opinion. "But the 'clearly established' requirement lacks any basis in either the text or original understanding of" civil rights law.

Ho posits a remedy, and it has nothing to do with him. "Congress decides what our laws shall be," he writes. "Congress can abolish qualified immunity, absolute prosecutorial immunity, and Monell. And it can do so anytime it wants to."

He is correct. It recently had multiple chances to do so. And despite record consensus around an issue that used to be beyond obscure, Congress did what Congress does: Nothing.

 

It's nice to see that Judge James Ho has gone from seeing qualified impunity as "necessary to stop mass shootings" to seeing the need to discard the "clearly established" standard that makes immunity almost automatic, even in egregious circumstances.

 

 

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