Police Qualified Immunity

[Pertinacious Tom]

The 5th Circuit Got One Right
 

...The U.S. District Court for the Western District of Texas rejected the deputies' position. In its decision this week, the U.S. Court of Appeals for the 5th Circuit did the same. "A reasonable officer would have understood that using deadly force on a man holding a knife, but standing nearly thirty feet from the deputies, motionless, and with his hands in the air for several seconds, would violate the Fourth Amendment," the ruling declared. The family's excessive force suit against the deputies "should proceed to trial."

...

 

[Pertinacious Tom]

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

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.

The Supreme Court denied King's cert petition.
 

...

Both the federal government and King asked the Supreme Court to take up the case. King and the Institute for Justice wanted the court to weigh in on the issue of whether an officer in a multi-jurisdictional task force was operating subject to state or federal law. The court denied King's petition Monday.

But the Court did agree to tackle the feds' request to determine whether that FTCA claim means that King can't use a previous court precedent (Bivens v. Six Unknown Federal Narcotics Agents) to sue the government for violating his constitutional rights.

It's a messy, complicated case that touches on the many ways police and the federal government manipulate laws and court precedents to try to shield themselves from liability. King was a completely innocent man who was attacked and then prosecuted by officials who did not want to acknowledge their mistake. And now they're doing everything they can to avoid having to make amends for what they did to King.

...

 

[Pertinacious Tom]

Reuters article on several QI cases

 

[Pertinacious Tom]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

But apparently that's not fair warning to cops that stealing evidence would be an unreasonable seizure. Or, if it is, the Supreme Court does not wish to hear about it.

Last year, the U.S. Court of Appeals for the 9th Circuit Court decided that two police officers in Fresno, California, who allegedly stole more than $225,000 in assets while executing a search warrant, could not be sued over the incident. Though "the City Officers ought to have recognized that the alleged theft was morally wrong," the unanimous 9th Circuit panel said, the officers "did not have clear notice that it violated the Fourth Amendment."

...

 

[Pertinacious Tom]

The SCOTUSblog case page on Jessop is weirdly amusing

"Sure, you can all talk to us about this case. And no, we don't wish to hear from you."

May 18 2020


 Motion for leave to file amicus brief filed by Libertarian Nutjobs GRANTED.




May 18 2020 


Motion for leave to file amici brief filed by Cato Institute, et al. GRANTED.




May 18 2020


Motion for leave to file amicus brief filed by New Civil Liberties Alliance GRANTED.




May 18 2020


Motion for leave to file amicus brief filed by National Association of Criminal Defense Lawyers GRANTED.




May 18 2020


Motion for leave to file amicus brief filed by Constitutional Accountability Center GRANTED.




May 18 2020


Motion for leave to file amici brief filed by DKT Liberty Project, et al. GRANTED.




May 18 2020


Petition DENIED.









 

 

[Pertinacious Tom]

I wonder if any court has explicitly said that kneeling on a man's neck until he dies from suffocation is wrong?

Because if not, well... Qualified Immunity for the cop who did it.
 

...

Qualified immunity, created by the Supreme Court in the 1970s, shields police and other government officials from liability in civil rights lawsuits when the illegality of their actions was not "clearly established" at the time of the offense.

Attorneys representing the families of Floyd, Ahmaud Arbery, and Breonna Taylor called for policing reforms—including rolling back qualified immunity—at a press conference today.

"The standard is far too high…for civil rights accountability for law enforcement officers," attorney Lee Merritt said. He continued:


"We need legislation that specifically goes after qualified immunity and the additional protections offered to law enforcement officers…We want to make sure that the laws from a federal level, number one, that these cases are no longer handled solely locally, but that the federal government will be asked to come in in each of these cases or these states will be denied federal funds."



The petitions before the Supreme Court have attracted amicus briefs from a notable range of groups, including the Reason Foundation (the nonprofit that publishes this website), the Cato Institute, and the American Civil Liberties Union (ACLU).

...

 

[Pertinacious Tom]

[No message]

 

[MR.CLEAN]

that's a great letter and a month ago I'd have said it never had a chance.  Assuming no economic, racial or epidemiological miracle, that bill, or one like it, could get passed next year.  And upheld by an 11-justice SCOTUS...

 

[MR.CLEAN]

Tom is not a fan of qualified immunity. Neither am I in its present form.  Immunity is important to make sure cops actually try to stop crimes with at least a minimal level of competence.  It is not appropriate for cops who kill unarmed people or blow up innocent people's houses, yet it is shocking how frequently it is used for that kind of malfeasance.

 

[Pertinacious Tom]

I just need to clarify Tom ... are you arguing that the cop who killed that guy, should get off?

Is that what you are doing here?

Of course. Much like hiding in a closet while a person is raped as discussed above, kneeling on a person's neck until he dies is just part of a cop's job. Or something.

 

[Steam Flyer]

Tom is not a fan of qualified immunity. Neither am I in its present form.  Immunity is important to make sure cops actually try to stop crimes with at least a minimal level of competence.  It is not appropriate for cops who kill unarmed people or blow up innocent people's houses, yet it is shocking how frequently it is used for that kind of malfeasance.

How much of this is discretionary with DAs and judges?

Seems to me like it swings back and forth, nationally and within districts. For example, a while back (by which I mean several decades, back in 19mumble) I lived in Jax Fla which had a terrible problem with police brutality, breaking down the door at the wrong address, etc etc.The friends I have who live there now say the police and the DA's dept are curteous, public-spirited, and extremely professional. 

The police where I live now have a high degree of professionalism but it's rural and they have to cover a lot of ground. They're spread too thin to go stomping around like an occupying military, even if they wanted to (which IMHO they don't, also high level of professionalism here).

- DSK

 

[Fah Kiew Tu]

How much of this is discretionary with DAs and judges?

What I know about this comes from reading Tom's thread, but it appears to me that the decisions have come down on the side of 'what is not specifically forbidden to the nth degree of specificity is permitted'. I think this is an utter perversion of the law and should have been stamped on a long time ago.

So on that basis I think the police officer who killed someone by kneeling on their neck has a really good chance of getting off using this defence. I also think this is utterly wrong but it seems the way previous decisions have gone.

We'll see what happens.

FKT

 

[Pertinacious Tom]

How much of this is discretionary with DAs and judges?

What I know about this comes from reading Tom's thread, but it appears to me that the decisions have come down on the side of 'what is not specifically forbidden to the nth degree of specificity is permitted'

That's basically the bottom line, though there is a tiny bit of wiggle room that the fifth circuit managed to find, as noted above.

George Floyd and Beyond: How “Qualified Immunity” Enables Bad Policing
 

Arlington, Va. —This week, the U.S. Supreme Court will consider whether to accept eight different cases that spotlight how the system of “qualified immunity”—which the Supreme Court created in 1982—has led to the regular and widespread violation of constitutional rights by police and other government officials.

While the nation is focused on the tragic death of George Floyd, qualified immunity cases have allowed government officials to steal, maim, willfully destroy property, and even kill, all without facing any consequence for their actions. If any ordinary citizen of the United States had engaged in such actions, they would face the full weight of the law against them; but because of qualified immunity, government officials are often held to a shockingly lower standard, leaving their victims to suffer insult after injury.

Qualified immunity means that government officials cannot be held accountable for violating the Constitution unless they violate a “clearly established” constitutional rule. In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.

How precisely must the violation match? Officers were recently granted qualified immunity when they let their police dog attack a suspect who was seated with his hands raised because the court found that an earlier case in which police let loose their dog on a suspect who was lying down wasn’t a close enough match.

...

OK, so it was written by Koch-$pon$ored nutjobs, but that's still right.

For more cases, see their Project on Immunity and Accountability

 

[Pertinacious Tom]

Not specifically QI related, but on the subject of enabling bad cops...

Even Police Unions Trash the Actions of the Cop Who Killed George Floyd

The first word in that title is there for a reason. Specifically,

Police Unions and the Problem of Police Misconduct

and

It's Time To Bust Police Unions

Unions are in a position similar to criminal defense attorneys: they have to do their best to defend people against whom allegations of wrongdoing are often true. Someone has to do it because "often" does not mean "always."

 

[Pertinacious Tom]

Bipartisan Bill To End Qualified Immunity Introduced

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

Rep. Justin Amash (L–Mich.) wants to end qualified immunity.

The insidious legal doctrine allows police officers to violate your civil rights with absolute impunity if those rights have not been spelled out with near-identical precision in preexisting case law. Theoretically, it protects public officials from bogus civil suits, but practically it often allows egregious misconduct.

George Floyd's death at the hands of former Minneapolis cop Derek Chauvin forced new life into the debate, shining light on a doctrine that many people say has contributed to an environment of police abuse. Amash announced late Sunday that he would introduce the End Qualified Immunity Act, with Rep. Ayanna Pressley (D–Mass.) signing on as a cosponsor Thursday.

...

As of Friday, 16 additional legislators had signed on to Amash's proposal. Not a single one of them is a Republican.

...

For once I'm please by blessed bipartisan unity.

 

[Pertinacious Tom]

The Attorney General's Overblown Fears About Scrapping Qualified Immunity
 

Yesterday Attorney General William Barr expressed his opposition to scaling back or eliminating qualified immunity for police officers. Reformers think scrapping the doctrine would discourage abuses like the life-endangering restraint technique that killed George Floyd. But Barr argues that increased liability for cops—whether accomplished by the Supreme Court's reconsideration of the qualified immunity doctrine or by legislation like the bill that Rep. Justin Amash (L–Mich.) recently introduced—would have a chilling effect on good policing.

Defenders of qualified immunity often express that concern. But it seems to be overblown, for reasons that also put a damper on the hopes of the doctrine's opponents.

...

In a 2020 Columbia Law Review article, UCLA law professor Joanna Schwartz, a prominent critic of qualified immunity, carefully considers such claims, drawing on her analysis of nearly 1,200 federal civil rights cases, her survey of about 100 lawyers practicing in this area, and her in-depth interviews with 35 of them. Her conclusions suggest that Barr is unduly worried that increased liability would paralyze the police. But they also suggest that opponents of qualified immunity should temper their expectations of the good that can be accomplished by eliminating it.

Schwartz found that the vast majority of unsuccessful civil rights lawsuits fail for reasons other than qualified immunity, which suggests that the impact of abolishing it would be less dramatic than many people on both sides of the debate imagine. She nevertheless predicts that without qualified immunity, more cases would be filed against police officers. But a surge in "insubstantial claims" is unlikely, she argues, mainly because attorneys working for contingency fees have a strong financial reason to eschew such cases. And even if a larger share of civil rights lawsuits survive motions for dismissal, Schwartz thinks their success rate probably would stay about the same, since "jurors' sympathies for government defendants mean that plaintiffs would continue to regularly lose at trial."

One important benefit of eliminating qualified immunity, Schwartz argues, would be to clarify the contours of constitutional rights.

...

I think that last sentence is right and is the best reason to reform QI.

Courts currently avoid constitutional questions just because the case before them isn't similar enough to some previous one, so they just stamp it QI and toss it out.

 

[Pertinacious Tom]

H.R.7085 - To amend the Revised Statutes to remove the defense of qualified immunity in the case of any action under section 1979, and for other purposes.

Noted Trumpalo Justin Amash's bill is now up to 39 cosponsors. Still all TeamD.

 

[Pertinacious Tom]

Tripartisan Unity Achieved At Last

Rep. Tom McClintock (R–Calif.) signed on to cosponsor, joining Rep. Ayanna Pressley (D–Mass.) and a lengthy list of other Democratic legislators who support Amash's legislation.

Well, OK, maybe not unity, but one TeamR player (or two for the ignorant folks who still count Amash) is better than none.

 

[Pertinacious Tom]

Neither the taxpayers nor the union have any requirement to hold a criminal immune.

Then why is this thread filled with cops who committed crimes and were held to be immune?

 

[mikewof]

Then why is this thread filled with cops who committed crimes and were held to be immune?

Because the courts and the taxpayers decided that what they committed were not in fact crimes, but necessary expressions of their jobs.

We looked at homicides committed in daylight, in front of the police, and decided that in fact, these weren't homicides. We lost the will to imprison the people we hired to do a job because we were so fucking grateful that we didn't have to do that same job and find ourselves in a similar position.

And this has happened for the last thirty years or so, since we decided in the 1980 that we had to change. But we didn't change, we didn't fix anything, we just let the problem fester. And now Americans are still murdered in broad daylight in front of the police, and the murderers are released with hand-slaps because we can't integrate ourselves into the morality of this situation.

So now we have to make a change. And if you think that ending qualified immunity will change the opinions of the taxpayers who interpret the law, who decide on guilt and innocence, then you're living in a fantasy.