Police Qualified Immunity

[3to1]

Sorry, forgot to include the fact check.

What is your issue with factual reporting?

Is learning that there is blessed bipartisan unity about qualified impunity upsetting to you?

Sorry that facts have a libertarian bias. It's just the way things are.

'cause I 'disagree', inherently so, with shitcunts who prioritize free-markets and capitalism above apparently everything else.
'libertarians' are simple fks like that (all kinds of other ways, too).

 

[Pertinacious Tom]

'cause I 'disagree', inherently so, with shitcunts who prioritize free-markets and capitalism above apparently everything else.
'libertarians' are simple fks like that (all kinds of other ways, too).

Hmm...

So Trump and Biden are right that cops should be able to violate our rights without consequences because capitalism.

Are they right about the stupid drug war and associated looting for the same reason?

 

[Pertinacious Tom]

Police, it is said, need qualified immunity because they have to make decisions on the spot that are part of their job. At least, that's the public relations spin on how it works.

How school bureaucrat qualified immunity really works.

In March 2022, Inge Berge wanted to buy tickets to attend his daughter’s middle school play, but he missed out on the tickets because the school was limiting capacity due to COVID-19. Upset that he might miss his daughter’s play, he went to the superintendent’s office—which was open to the public—to ask if there was any way to create an exception so he could buy a ticket. Berge openly and obviously recorded his visit to the superintendent’s office and his discussion with the officials. He remained calm as he spoke with the officials, two of whom refused to talk while being recorded, and a third who said he would look into the situation. But later that day, after Berge posted the interaction on Facebook, the superintendent’s office sent him a letter demanding he remove the video or face legal repercussions. This blatant effort to suppress Berge’s speech was based on a statute that only prohibits “secret” recordings—but the letter itself made clear that there was nothing secret about what Berge did.

...

“Some rights violations are so obvious that plaintiffs don’t have to go on scavenger hunts for previous cases with similar facts in order to move forward with a lawsuit,” said IJ Nutjob Jaba Tsitsuashvili. “School officials knew their threat of legal action against Mr. Berge was baseless, which is why they immediately rescinded their threat once he fought back.”


IJ’s brief urges the First Circuit to overturn the lower court’s decision granting school officials qualified immunity and to allow Berge’s First Amendment retaliation claims to move forward.


“Premeditated retaliation against someone for their First Amendment-protected speech is not the type of ‘split-second’ decision that even proponents of qualified immunity ever contemplated the doctrine protecting,” added IJ Nutjob Anna Goodman.

Anna Goldman is right, of course, but if school bureaucrats aren't allowed to retaliate against citizens with impunity, we won't be able to hire cops any more, just like America before the 1980's when qualified impunity was invented. Or so they say...

 

[Pertinacious Tom]

Here's a good one for my list of arguments that should not have to be made to a court, but have been:

Using a statute in an obviously unconstitutional manner is obviously unconstitutional.

They devote a whole section to explaining that, presumably because it's not all that obvious to anyone but Kochy nutjobs.

 

[Pertinacious Tom]

The end of that section of the Kochy Nutbrief:

Here, the defendant officials threatened legal action under
a facially inapplicable statute, in a letter that itself made obvious the
statute’s inapplicability, for the sole purpose of chilling Mr. Berge’s
speech. ...It is hard to imagine a clearer example of an
“egregious manner” of enforcement or “exceed[ing] the bounds of the”
statute, so immunity cannot attach.

But if we don't let school bureaucrats threaten people that way, we won't be able to hire any police at all! Or so the counter argument goes.

I still think Kochy nutjobs are right and we don't really have to let school bureaucrats behave this way at all.

 

[Pertinacious Tom]

The long term results of a "we've never seen rights violated quite that particular way before" rulings:

“[R]eflexively granting qualified immunity without first deciding
whether the complained-of conduct offends the Constitution . . . results
in fewer and fewer courts establishing ‘constitutional precedent,’ let
alone the kind of clearly-established precedent needed to overcome a
qualified-immunity claim—a phenomenon known as ‘constitutional
stagnation.’” Eves v. LePage, 927 F.3d 575, 591 (1st Cir. 2019) (en banc)
(Thompson, J., concurring); see also Sabir v. Williams, 52 F.4th 51, 57 n.3
(2d Cir. 2022) (noting that because “some kinds of constitutional
questions do not often come up” outside of Section 1983 cases, it creates
a “repetitive cycle of qualified immunity defenses” when courts resolve
these cases without addressing the constitutionality of the underlying
conduct). Accordingly, courts should “still address the merits question
. . . to clearly establish the law and prevent a vicious cycle of shielded
misconduct.” Sabir, 52 F.4th at 57 n.3.

When courts decline to do so, “the qualified immunity situation
. . . threatens to leave standards of official conduct permanently in
limbo.” Camreta, 563 U.S. at 706. In such situations, courts may “fail to
clarify uncertain questions, fail to address novel claims, [and] fail to give
guidance to officials about how to comply with legal requirements”; in
turn, “the development of constitutional precedent and the promotion of
law-abiding behavior” is frustrated. Id. (cleaned up). In short, “if courts
refuse to resolve legal claims because the law was not clearly established,
then the law will never become clearly established.” Jay R. Schweikert,
Cato Institute, Qualified Immunity: A Legal, Practical, and Moral
Failure (2020)

Obviously, that's a Kochy nutbrief quoting other Koch-$pon$ored nutjobs, so they're wrong for that reason.

I do wonder if there's some other reason they're wrong, since I reject the main one.

 

[Pertinacious Tom]

Let Massholes Be Massholes, Says Bay State's High Court

More of a free expression win, but with a qualified immunity component.

...
The case was brought by plaintiffs including Louis Barron, who was cut off and threatened with physical expulsion from a Southborough board of selectmen meeting in 2018. She had vigorously spoken up—comparing an official to Hitler at one point—to object to open meeting law violations and other excesses and ruffled the feathers of Southborough's elected government. They invoked a public comment policy requiring "civility" at such meetings to muzzle their critic.


Barron and two other plaintiffs sued to have the policy declared unconstitutional. They prevailed in a decision that generously cites the work of John and Samuel Adams. Drawing on the often-vicious disputes of the revolutionary period, the decision has implications for contemporary government officials who frequently object to the strong language in which they're criticized. In the lawsuit, Barron initially cited both federal and state constitutional objections to the civility code, before settling on Massachusetts's own protections. That had her drawing on the efforts of the nation's founders.

...

"There is no question that this civility code is directed at political speech, as it regulates speech in a public comment session of a meeting of the board, and that it is content based, as it requires us to examine what was said," added the court, which concluded that the code impermissibly regulated speech and was neither necessary nor narrowly drawn.

"Speech that politely praises public officials or their actions is allowed by the policy, but speech that rudely or disrespectfully criticizes public officials or their actions is not. This constitutes viewpoint discrimination."

The court also found that then-Selectman Daniel J. Kolenda, whom Barron compared to Hitler and who silenced her and threatened expulsion, is not entitled to qualified immunity for his violations of her rights. Said the court: "The contours of the rights are sufficiently clear, and a reasonable public official would understand that his response to the exercise of those rights was unlawful." That makes him potentially liable under the Massachusetts Civil Rights Act.
...

 

[Pertinacious Tom]

Nicholas Chappelle spent nearly a year at Snake River Correctional Institution after he was arrested and convicted for driving with a suspended license.


But he never should have spent a day behind bars.

He's suing. If he does not already know, I suspect Mr. Chappelle is about to learn what the phrase "qualified immunity" means.

 

[Pertinacious Tom]

The James King case is decided, but not over.

What Happened Yesterday in the Police Brutality Case and What Happens Next

James King's case goes on and on, asking SCOTUS to have another look

...
When the Court first heard James’ case in 2020, the government asked the Justices to recognize a new immunity under a law called the Federal Tort Claims Act (FTCA). If the Justices approved this immunity, the door would be slammed shut on James’ case. Upon IJ’s urging, the Court declined to recognize this new immunity and instead asked the 6th U.S. Circuit Court of Appeals to hear IJ’s arguments why it should not be applied. Unfortunately, the Sixth Circuit cited outdated case law to apply the immunity and let the government off the hook. Now, IJ is asking the court to once again hear the case.
...
The case started in 2014. James, then a college student, was walking between two summer jobs in Grand Rapids, Michigan, when two men stopped him, demanded his name, and took his wallet. Thinking he was being mugged, James ran. But the men caught him, beat him to the point that his face was unrecognizable, and choked him unconscious. James only later discovered that the men were members of a police task force—one an FBI agent and the other a local detective. The officers never identified themselves as law enforcement to James, and bystanders who witnessed the beating were equally in the dark, calling 911 to report what they believed to be an attempted murder in broad daylight. Uniformed officers arrived, and, even though it was clear James was not the wanted suspect, arrested James, transported him to the hospital, and handcuffed him to his bed.

“After all this time, I still want to hold accountable the officers who put me through this unconstitutional hell, but the courts continue to prevent me from doing so,” said James. “The Supreme Court must hear my case and restore accountability. Not just for me, but for the many victims of government abuse suffering silently without access to our courts.”

James filed a federal lawsuit against the officers and the federal government. The trial court granted the officers qualified immunity, shielding them from accountability, but the appeals court overturned that decision. Normally, that would mean the case would go back to the trial court and James would have the opportunity to make his case in front of a jury. Instead, the federal government appealed to the Supreme Court.

The government asked the court to take the case and recognize an immunity under the FTCA. Under this tort immunity, if a victim of federal abuse cannot sue the federal government for a state tort—like assault, battery, false arrest, etc.—he cannot hold the government’s employee liable for a constitutional violation either. This, even though state torts and constitutional claims have different elements and are designed to remedy different rights. This requested immunity is cruelly ironic because Congress originally passed the FTCA to create a means for victims of rights violations from federal officers to hold those officers accountable.

“The government has essentially said ‘if you lose one claim, you’re out of luck, and you lose all of your claims,’” said IJ Attorney Anya Bidwell. “That’s not how any other area of the law works and that’s not how the FTCA should work, either. It turns a statute that was supposed to expand government accountability into one that swallows it up.”

So that's nice.

 

[Pertinacious Tom]

Joanna Schwartz's "Shielded: How the Police Became Untouchable"

...
Schwartz's book comes at a time when reform efforts have largely gone stagnant. In the aftermath of the death of George Floyd at the hands of abusive police in 2020, there was hope that qualified immunity might be abolished by the Supreme Court or through legislation. But, while some progress was made in a few states, it has stalled as public attention moved on to other issues, and rising crime rates make it politically more difficult to curb police in any way. Most states still have broad QI doctrines.

There is a similar story at the Supreme Court. While the Court has denied law enforcement officers quality immunity in a few extreme cases, there does not seem to be a majority of justices willing to abolish this judicially created doctrine entirely, or even to severely restrict it. The unusual coalition of justices Sonia Sotomayor and Clarence Thomas does support major constraints on QI. But, so far at least, they have not found the three additional votes they need to make it happen. Some other observers are more optimistic about the Supreme Court on this issue, than I am. Time will tell.
...

This makes me wonder whether Sotomayor was actually aboard Crow's yacht with Clarence and Ginny or if she went on a separate trip.

And can't Crow afford to take a few more Justices island hopping?

 

[Goodvibes]

Tom's a fucking gutless cunt who blocks anyone able to stomp on his bullshit.

Oh, hi Tom.

 

[tybee]

Tom's a fucking gutless cunt who blocks anyone able to stomp on his bullshit.

Oh, hi Tom.

a number of us have also been blessed with dognuts putting us on DSI.

 

[Pertinacious Tom]

Looks like that's going to take Gonzalez years.

Justice Delayed is Justice Denied: How Qualified Immunity Allows Government Officials to Delay Access to Justice

The retaliatory arrest of Sylvia Gonzalez happened in 2018. That post about her case was from 2021. I liked it better when the forum used to put dates on old posts.

Anyway, it's still taking years. A divided 3 judge panel of the fifth circuit reversed the lower court and decided that the perps were protected by qualified impunity. Now Kochy nutjobs, joined by NRA affiliates like the ACLU, are asking the Supreme Court to reverse that decision.

Diverse Group of Organizations, Law Professors Call on Supreme Court to Hear Case of Grandmother Arrested for Criticizing Local Government Officials

At the end of April, IJ filed a petition for certiorari with the U.S. Supreme Court asking it to reverse the Fifth Circuit’s ruling providing qualified immunity to a mayor and a police chief who threw a 72-year-old grandmother in jail, after she criticized a city manager, their ally.


Since then, five groups consisting of public interest organizations, renowned advocates, and acclaimed scholars filed their own briefs asking the Supreme Court to grant review and overturn this grievously wrong decision.


“The outpouring of support has been absolutely remarkable,” said IJ Nutjob Anya Bidwell. “This has been such a morale boost for Sylvia Gonzalez, our client, who’s been terribly hurt by this whole experience. In addition, it has shown that we’re absolutely right in our interpretation of the law.”

...

The organizations who joined Sylvia in her fight include the ACLU, Constitutional Accountability Center, the Institute of Constitutional Advocacy and Protection, the Law Enforcement Action Partnership, the Cato Institute, and the Foundation for Individual Rights and Expression. The renowned professors standing together with Sylvia are Seth Stoughton, Sheldon Nahmod, Thomas Healy, Brandon Garrett, Brenner Fissell, Colin Miller, and Rebecca Tushnet. Fane Lozman—the plaintiff in Lozman v. City of Rivera Beach, in which the Supreme Court agreed that he had a First Amendment retaliation claim against the municipality after it arrested him for speaking out—also filed a friend of the court brief, arguing that Sylvia’s case should yield the same result.

“I am incredibly grateful for all this support,” said Sylvia Gonzalez. “When I was arrested and for a while after that, I felt like I was alone. But now I know that I am not; that we are all fighting together to ensure that people in this country are not punished when they stand up to their government.”
...

 

[Pertinacious Tom]

The ACLU/NRA Amicus Brief

I suspect even the table of contents might strain the attention span of readers, but it does summarize the argument nicely.

SUMMARY OF ARGUMENT .................................... 3
ARGUMENT ............................................................... 5
I. The Decision Below Denies
Important First Amendment
Protections that the Nieves Decision
Was Designed to Preserve .......................... 5

II. A Robust Nieves Exception Is Crucial
Because Officers Have Probable
Cause for Arrest in a Wide Range of
Circumstances............................................. 9

III. The Decision Below Risks Freeing
Police to Exploit Their Vast
Discretion to Arrest Those with
Whom they Disagree ................................ 14

CONCLUSION.

Non-readers probably missed it, but Sylvia Gonzalez's "crime" was "stealing" a petition that SHE initiated.

...
This case raises the same First Amendment
concerns. Ms. Gonzalez, a 72-year-old first-time city
council member, spoke out against the City Manager,
and organized a nonbinding citizen’s petition to
remove him. After mistakenly placing the petition in
her binder, she was arrested and charged under a
broad tampering law that had never before been used
to target such conduct. The law under which Ms.
Gonzalez was arrested makes it a crime to
“intentionally destroy, conceal, remove, or otherwise
impair the verity, legibility, or availability of a
governmental record.” Tex. Penal Code § 37.10(a)(3).
It is typically invoked to arrest for the use of fake
government identification, such as fake social security
numbers or driver’s licenses, or for misuse of financial
information. App. 23a.


In order to show that her arrest was retaliatory,
Ms. Gonzalez alleged that the law had never before
been used to charge someone for purportedly
attempting to steal (or misplacing) a nonbinding
expressive document, much less a petition they
themselves had prepared in order to criticize the
government. App. 23a (citing allegation that, “[o]f 215
grand jury felony indictments obtained under the
tampering statute . . . not one had an allegation even
closely resembling the one mounted against
[Gonzalez]”).


This allegation should have been enough. As
Judge Oldham noted in dissent below, “[h]ere,
common sense dictates that [Ms. Gonzalez’s] negative
assertion amounts to direct evidence that similarly
situated individuals not engaged in the same sort of
protected activity had not been arrested.”
...

The whole thing hinges on the fact that it was technically illegal to put her petition in her binder. It's like stealing financial information, doncha know.

 

[Pertinacious Tom]

Who the heck is Fane Lozman?

Amicus curiae is Fane Lozman, whose disputes
with the City of Riviera Beach have brought him be-
fore this Court on two separate occasions. Both times
Mr. Lozman has prevailed. Lozman v. City of Riviera
Beach, 568 U.S. 115 (2013) (holding that Mr. Loz-
man’s floating home did not qualify as a “vessel” sub-
ject to maritime jurisdiction); Lozman v. City of Rivi-
era Beach, 138 S. Ct. 1945 (2018) (reversing dismissal
of First Amendment retaliatory arrest claim under 42
U.S.C. § 1983).

The precedent Mr. Lozman helped to establish
through his second victory in this Court is directly ap-
plicable to petitioner’s claims here. In Lozman, this
Court held that the existence of probable cause did
not bar a Section 1983 retaliatory-arrest claim
brought by Mr. Lozman against the City of Riviera
Beach, in light of evidence that his arrest was the re-
sult of an official plan by city council members to re-
taliate against him for his ongoing criticism of the city
and its policies. Lozman, 138 S. Ct. at 1955. In so
holding, this Court recognized a particularly perni-
cious class of First Amendment retaliatory arrests—
those orchestrated by government officials as part of
official policies of retaliation against citizens for en-
gaging in speech critical of them and their offices.

The similarities between the facts underlying Loz-
man and those of this case are striking. ...

I don't think that Gonzalez lives on a floating non-vessel, but the similarities are otherwise very close.