Police Qualified Immunity

[Mark K]

So is that another way of asking them to enter?

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

 

[Pertinacious Tom]

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

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

 

[Mark K]

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

Yes

 

[Pertinacious Tom]

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

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

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

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

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

...

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

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

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

...

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

 

[Pertinacious Tom]

From Short Circuit

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

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

 

[Mark K]

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

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

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

 You guys sure this is the right tack?? 

 

[Pertinacious Tom]

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

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

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

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

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

 

[Mark K]

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

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

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

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

 

[Pertinacious Tom]

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

I could go along with that.

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

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

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

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

 

[Mark K]

I could go along with that.

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

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

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

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

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

 

[Pertinacious Tom]

Several qualified immunity items in this week's Short Circuit

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

and:

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

and:

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

and:

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

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

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

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

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

 

[Pertinacious Tom]

Qualified Privilege is kinda similar

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

 

[Mark K]

Qualified Privilege is kinda similar

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

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

 

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

Some, mind you, only some.  

 

[Pertinacious Tom]

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

 

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

Some, mind you, only some.  

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

Do you think the judge was wrong about this?
 

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

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

 

[Mark K]

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

Do you think the judge was wrong about this?
 

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

 

[Pertinacious Tom]

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

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

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

IT IS SO ORDERED.

 

[Mark K]

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

Does interest remove the need for facts and information? 

 

[Pertinacious Tom]

Does interest remove the need for facts and information? 

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

It turns out that it is possible to overcome qualified immunity

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

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

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

...

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

...

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

 

[Mark K]

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

It turns out that it is possible to overcome qualified immunity

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

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

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

 

[Pertinacious Tom]

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

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

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