Police Qualified Immunity

[Pertinacious Tom]

Supreme Court Makes It Effectively Impossible To Sue Federal Cops, Smashing a 51-Year-Old Precedent



Federal impunity will continue to be the most objectionable kind.

Nutjobs are giving it another shot

On June 8, 2022, the U.S. Supreme Court announced a new standard for holding federal police accountable. From now on, the only question that is relevant is whether courts should be the ones resolving constitutional claims against federal police or whether Congress should first provide courts with an explicit authorization to do so.


Under this new test, the Institute for Justice (IJ)’s clients—Hamdi Mohamud and Kevin Byrd—should prevail. That is because both cases involve routine Fourth Amendment violations where no one is better positioned than the judiciary to weigh the costs and benefits of opening the courthouse door. After all, that’s what the courts did for the first 200 years of this country’s history.

...

In Kevin’s case, a rogue Department of Homeland Security officer threatened to kill Kevin to prevent him from looking into a purely personal matter—a drunk-driving incident involving the officer’s son. This is a clear example of a Fourth Amendment violation, with no “systemwide consequences” for the federal government—something that Justice Thomas mentioned as a reason why a court might not be in a position to adjudicate a claim.


In Hamdi’s case, a federal task-force officer’s well-documented lies to the court and to fellow officers caused an innocent teenager to be arrested and imprisoned—another clear Fourth Amendment violation.


“Such constitutional violations can only be redressed through damages after the fact,” Bidwell said. “Basic civics will tell you that it’s within the wheelhouse of the judiciary, not Congress, to decide whether Kevin and Hamdi should have their day in court to make their case and let a judge or jury decide if they’re right. The federal appeals courts and the Supreme Court are so far not allowing them to do even that.”


“Our nation has a long history of ensuring that where there is a constitutional right, there must be a remedy for those whose rights have been violated,” said Patrick Jaicomo, an IJ nutjob. “The Supreme Court is now telling us that in most situations involving federal officials, that is no longer true. Federal officers are absolutely immune from accountability for their constitutional misdeeds. But we are here to ask the Court to do what it—and not Congress—was created to do: adjudicate cases like Byrd and Mohamud, which represent routine Fourth Amendment violations.”

...

Federal impunity is still the most objectionable kind.

 

[Pertinacious Tom]

And it's not just sworn law enforcement agents. If a government engineer on a personal vendetta and no authority to make arrests arrests you, he could get qualified impunity simply because no government engineers who lack arrest authority have arrested anyone before, so no court made it clear that you can't do things you have no authority to do.

Yes, that's really the world of qualified impunity. You can see how big government types from both parties like Trump and Biden would like the complete authority and complete lack of accountability, which is why we still have it.

U.S. Supreme Court Appeal: Government Official with NO Police Authority Pulled Over and Detained Drivers, Yet Granted Qualified Immunity

...

The orchestrated chorus of amici is assembling in CSI v Large

The Institute for Justice (IJ) represents Central Specialties, Inc. and its president Allan Minnerath in their appeal of this decision to the U.S. Supreme Court. Last week, IJ was joined in this fight by Professors Peter Schuck and Brian Pérez-Daple—as well as the Law Enforcement Action Partnership—who filed two amicus briefs in support of IJ’s arguments.

 

[MR.CLEAN]

Koch: funding all sides of the argument for decades

 

[Pertinacious Tom]

Koch: funding all sides of the argument for decades

I didn't know that! I managed to find the Project on Immunity and Accountability

Do you have a similar link to their support for the other side?

 

[Pertinacious Tom]

Koch: funding all sides of the argument for decades

So I'm going to guess that your post is BS and there's not going to be any link to another side.

So just a baseless messenger attack again. OK, what's wrong with the Koch-$pon$ored message in this thread? Do you agree with Trump and Biden about qualified impunity? Why?

 

[Pertinacious Tom]

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



I agree with the ACLU guy.

A Colorado Man Wins $175,000 After His 'Fuck Bad Cops' Sign Prompts a Tasing

...
Dickey's body camera captured the incident dying down after his police commander, Mark Morgan, arrived on the scene. Morgan questioned Dickey's actions in the pursuit. He informed him that Condiotti-Wade had been standing on public property and was protected by the First Amendment right to free speech. Morgan also denied that Condiotti-Wade's actions qualified as disorderly conduct. The more Dickey justified his actions, the more Morgan pushed back.


Dickey eventually cuts the audio to his body camera.
...

Bonus link: It took a jury all of nine minutes to decide that a Michigan man had the legal right to blast NWA's "Fuck tha Police" near an officer. He was on trial after the angry officer ticketed him for a misdemeanor noise violation.

It's getting more and more clearly established that cops should grow a thicker skin or move to a cuntry that doesn't have a first amendment.

 

[Fat Point Jack]

The week before Independence Day, I almost puked. The local NPR station had a story on fireworks safety and the "expert" on fireworks safety was the info officer for a local fire district, the ********* that supplied the bullets that killed the retired librarian.

Then last week the local Mullett Wrapper had a headline story that the shooter has graduated from law school and was requesting the court to shorten his probation as the state of confusion where he now lives will not let him take The Bar exam while he is on probation.

As far as I can see the hubby that gave the "blanks" to his wife, the supplier to the shooter, is still employed as a managing officer in the local sheriff's department.

See: https://forums.sailinganarchy.com/threads/fat-point-tragedy.211327/



















se

 

[Pertinacious Tom]

USPS manages to tie together the first and fourth amendments, drug war looting, and qualified impunity in one fuckup.

Oakland Activist Sues to Hold Postal Officers Accountable for Illegal Search and Seizure of his Mail



...

Also federal impunity.

Oakland Entrepreneur and Activist Fights Federal Immunity

...
For days, René, his employees, his family, his community, and even his competitors worked around the clock to cut, print, press, and pack nearly 10,000 masks bearing messages like “Stop Killing Black People.” René barely slept. But these weren’t typical orders. They were a labor of love—René’s way of standing up and speaking out.

He shipped the packages express; they were supposed to arrive within a day. But instead of delivery notices, René and his clients received a cryptic alert: “Seized by Law Enforcement.” No one explained why these cloth masks were in the hands of federal police instead of on the faces of political protesters. It took an official inquiry from René’s congresswoman and a monthslong Freedom of Information Act process to get any answers. And those answers confirmed that the plain brown boxes were seized for no reason—there was no basis to suspect René, Movement Ink, or his clients of any wrongdoing.

But the damage was done. The seizures cast a pall of uncertainty around René. In one day, the postal officials’ suspicionless seizures dashed years of his reputation-building—and put the kibosh on plans for ongoing nationwide distribution of protest apparel.

To ensure that no other small-business owner—or anyone else—endures what René has, he’s teamed up with IJ to sue the officials responsible for unconstitutionally seizing his property, tarnishing his reputation, and harming his business. But because the officials work for the federal government, they’re cloaked by the Supreme Court’s ever-expanding grant of near-absolute immunity from accountability. Just this summer, the Court made it even harder to sue federal officials and then proceeded to deny IJ’s efforts to seek accountability on behalf of Hamdi Mohamud (who spent two years of her youth imprisoned because of an officer’s lies) and Kevin Byrd (who was nearly killed by an off-duty officer).

The Court insists this is Congress’ problem to solve. We think a provision of federal law known as the Westfall Act already provides for constitutional remedies against federal officials, and we will be pressing that argument in René’s case. Otherwise, the Court’s grants of immunity embolden federal officials to act with impunity. So, despite setbacks, IJ and René remain committed to reviving the bedrock principles that where there is a constitutional wrong there must be a remedy and that no government official is above the law.

More on the Westfall Act

 

[badlatitude]

Interesting billboard, I hope it generates enough interest to get some results.

 

[Deleted member 149385]

Tom you have a way of stirring shit and walking away with the argument. No wonder you’re not loved.

 

[Pertinacious Tom]

The Onion joined the orchestrated chorus of amici supporting Kochy nutjobs.

 

[Pertinacious Tom]

The Onion's amicus brief in Novak v Parma

Confirms that explaining a joke is comedy death, even if done by very funny people.

This is the fifteenth page of a convoluted legal fil-
ing intended to deconstruct the societal implications of
parody, so the reader’s attention is almost certainly
wandering. That’s understandable. So here is a para-
graph of gripping legal analysis to ensure that every
jurist who reads this brief is appropriately impressed
by the logic of its argument and the lucidity of its prose:
Bona vacantia. De bonis asportatis. Writ of certiorari.
De minimis. Jus accrescendi. Forum non conveniens.
Corpus juris. Ad hominem tu quoque. Post hoc ergo
propter hoc. Quod est demonstrandum. Actus reus.
Scandalum magnatum. Pactum reservati dominii.

See what happened? This brief itself went from a
discussion of parody’s function—and the quite serious
historical and legal arguments in favor of strong pro-
tections for parodic speech—to a curveball mocking the
way legalese can be both impenetrably boring and be-
lie the hollowness of a legal position. That’s the setup
and punchline idea again. It would not have worked
quite as well if this brief had said the following: “Hello
there, reader, we are about to write an amicus brief
about the value of parody. Buckle up, because we’re
going to be doing some fairly outré things, including
commenting on this text’s form itself!”

Taking the latter route would have spoiled the
joke and come off as more than a bit stodgy.

It's the most entertaining amicus brief ever, but that's a pretty low bar.

 

[Pertinacious Tom]

And it's not just sworn law enforcement agents. If a government engineer on a personal vendetta and no authority to make arrests arrests you, he could get qualified impunity simply because no government engineers who lack arrest authority have arrested anyone before, so no court made it clear that you can't do things you have no authority to do.

Yes, that's really the world of qualified impunity. You can see how big government types from both parties like Trump and Biden would like the complete authority and complete lack of accountability, which is why we still have it.

U.S. Supreme Court Appeal: Government Official with NO Police Authority Pulled Over and Detained Drivers, Yet Granted Qualified Immunity


I don't see any evidence that judges in the 8th circuit agree on that one thing. We'll see whether SCOTUS does.

Jonathan Large has responded to SCOTUS and now CSI has responded to his filing.

Central Specialties, Inc. v. Large

Well, their Kochy lawyers did, and put out a press release about it.

This week, Central Specialties, Inc. (CSI), a family-owned road construction company represented by the Institute for Justice (IJ), filed a reply in support of its petition asking the U.S. Supreme Court to take up CSI’s case and make it clear: Government employees who “go rogue” and act outside of their job duties are not shielded from lawsuits brought against them by citizens seeking to vindicate their constitutional rights.


In July 2017, Jonathan Large, a highway engineer for Mahnomen County, Minnesota, violated CSI’s constitutional rights by pulling over two of its trucks and detaining CSI drivers for over three hours—despite having no authority to do so—while he tried to get law enforcement to come ticket them. Minnesota law does not empower highway engineers to act as police officers, so CSI took Large to court. There, Large claimed he could not be sued because, as a government official, he is protected by qualified immunity.


Qualified immunity is a legal doctrine that shields government officials from being sued when they violate people’s constitutional rights. To get around qualified immunity and get their day in court, a plaintiff must show that the right the government official violated was “clearly established.” To be clearly established, that typically comes down to whether there is a previous case on record with similar facts—where the court decided the official’s actions were unconstitutional.


“What makes the CSI appeal so important is that it shows how perverse qualified immunity is; if a government official like Jonathan Large acts completely outside of his duties when he violates the Constitution, it is unlikely that there will be previous case law with similar facts, so they can’t be held to account for their actions,” said Anya Bidwell, a Kochy nutjob. “So government officials who don’t do their jobs get a greater degree of protection than those who do. That cannot be right, and it cannot be what the Supreme Court intended when it developed the doctrine of qualified immunity.”
...

 

[MR.CLEAN]

Based on SCOTUS's denial of cert for Bierenga yesterday, I'm guessing team Koch gonna take another L on this one. It's a shame all those 'friends of Leonard" have derailed what looked like a positive trend for those looking to pare down the QI defense. Oh well.

 

[Pertinacious Tom]

Based on SCOTUS's denial of cert for Bierenga yesterday

Guessing this is a reference to an order denying cert two days ago:

21-1540 GORDON, NITA V. BIERENGA, KEITH

Is that a good guess?

 

[Pertinacious Tom]

those looking to pare down the QI defense.

Who are "those" and what have they accomplished? This would be the thread to talk about them specifically, not just as a vague and general reference.

 

[Pertinacious Tom]

What a surprise that Clean can't or won't answer a simple question. I guess I'll have to continue only supporting "those" who are actually identified as pursuing qualified impunity reform. Oh well.

A tidbit on The Onion's amicus brief

...
In Novak v. City of Parma, Ohio, Novak asks the justices to clarify when qualified immunity is available if the justification for probable cause relies on speech. He argues that his arrest was retaliation for his speech, and that the officers’ conduct was an obvious constitutional violation not entitled to qualified immunity. Novak also points out that the 6th Circuit originally sided with him at an earlier stage in the case: “Imagine if The Onion,” Judge Amul Thapar wrote, “were required to disclaim that parodical headlines … are, in reality, false.”

Answering that call, The Onion filed an amicus brief in support of Novak’s petition from the court of appeals’ subsequent ruling for the officers. In urging the court to take up the case, the magazine tells the justices that the 6th Circuit’s ruling “threatens to disembowel a form of rhetoric that has existed for millennia, that is particularly potent in the realm of political debate, and that, purely incidentally, forms the basis of The Onion’s writers’ paychecks.”

I didn't notice before that a 6th Circuit judge actually asked for this mockery.

 

[Pertinacious Tom]

State and Federal Circuit Court Scores on Access to Justice and Accountability

They have a fancy interactive map.

Constitutional rights only exist if they can be enforced. But a confusing patchwork of immunity doctrines and special rules often means they cannot be. Chief among the doctrines that prevent constitutional accountability is qualified immunity, which prevents victims of government abuse from suing their abusers unless a court has previously related that the precise actions at issue were “clearly established” in their jurisdiction. As a result, what is clearly established—and therefore what rights are actually enforceable—varies from place to place. Added to qualified immunity, each state provides its own flavor of similar protections when government officials are sued under state law. If and to what extent government officials can be held accountable under state law likewise varies from state to state.

Select your state below and answer a few questions to see what law is clearly established where you live and find out whether you live somewhere on the accountability honor roll or somewhere that is failing the constitutional test. This interactive treatise also grades states and federal jurisdictions on the ease or difficulty of enforcing constitutional and civil rights in their courts, providing a state grade, a circuit grade, and a combined GPA.

 

[Pertinacious Tom]

And it's not just sworn law enforcement agents. If a government engineer on a personal vendetta and no authority to make arrests arrests you, he could get qualified impunity simply because no government engineers who lack arrest authority have arrested anyone before, so no court made it clear that you can't do things you have no authority to do.

Yes, that's really the world of qualified impunity. You can see how big government types from both parties like Trump and Biden would like the complete authority and complete lack of accountability, which is why we still have it.

U.S. Supreme Court Appeal: Government Official with NO Police Authority Pulled Over and Detained Drivers, Yet Granted Qualified Immunity


I don't see any evidence that judges in the 8th circuit agree on that one thing. We'll see whether SCOTUS does.

Supreme Court Refuses to Hear Case of Government Engineer Who Acted Like a Police Officer, Got Qualified Immunity Anyway

Today, the U.S. Supreme Court refused to hear a case of a county highway engineer who went rogue and acted like a police officer, then got away with it due to qualified immunity. As a result of the Court’s refusal to hear the case, government officials are more free to act outside their job duties and face no consequences when they violate constitutional rights. What’s worse, the federal appeals court decision left standing by the Supreme Court essentially results in greater protection for those who don’t do their jobs than those who do.


Central Specialties, Inc. (CSI) is a family-owned road construction company that was represented by the Institute for Justice (IJ) in its petition asking the Supreme Court to take up its case against Jonathan Large, a highway engineer for Mahnomen County, Minnesota. In July 2017, Large violated CSI’s constitutional rights by pulling over two of its trucks and detaining CSI drivers for over three hours—despite having no authority to do so—while he tried to get law enforcement to come ticket them. Minnesota law does not empower highway engineers to act as police officers, so CSI took Large to court. There, Large claimed he could not be sued because, as a government official, he is protected by qualified immunity. The 8th U.S. Circuit Court of Appeals agreed.


“The Supreme Court has left in place a dangerous precedent that in no way accomplishes the original goal of qualified immunity, which was supposed to be about police officers who are forced to make split-second decisions,” said Anya Bidwell, a Kochy nutjob. “Now, ironically, a county highway engineer who goes beyond his job duties and acts like he has the power of a police officer is probably better protected than an actual police officer acting within his job duties.”

...

As noted, Biden and Trump support qualified impunity because sometimes a government's gotta do what a government's gotta do, and if that means empowering engineers to be cops on a vendetta, then that's just what it's going to have to mean.

Fortunately, we don't have any stupid Fairness Doctrine in this country, so Kochy nutjobs like the one quoted can go around saying it's wrong and don't have to pay to present the (already well-represented) authoritarian side of the argument.

 

[Pertinacious Tom]

The Onion joined the orchestrated chorus of amici supporting Kochy nutjobs.

Now the Babylon Bee is a friend too, urging SCOTUS to hear Novak v Parma

The Babylon Bee, a right-leaning satirical news site, joined The Onion in calling on the U.S. Supreme Court to take up Novak v. Parma and clearly protect the right of parody under the First Amendment. Anthony Novak was arrested and prosecuted for a felony after he made an obviously fake Facebook page mocking his local Parma Police Department. Anthony’s lawsuit for the violation of his civil rights was thrown out after the officers were granted qualified immunity.


“Parody is fundamental to free speech and the broad support for Anthony demonstrates why the Supreme Court needs to take up his case and affirm his First Amendment rights,” said Kochy Senior Nutjob Patrick Jaicomo. “No one should be arrested for making jokes online and no one feels that more than people who do it for a living. We thank both The Babylon Bee and The Onion for stepping up to defend free speech.”
...

The things that fall under "sometimes a government's gotta do what a government's gotta do" continue to astound me. Why do Trump and Biden (and, by extension, their supporters) think this is OK? I continue to agree with Kochy nutjobs and professional satirists that it's not.