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Supreme Court Makes It Even Harder To Hold Bad Cops Accountable

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  • Cow Poke
    replied
    Just saw this - subscribing, and will follow up later.

    Leave a comment:


  • Gondwanaland
    replied
    Thought this could use an update, given that Virginia's new governor seems intent on pushing qualified immunity.

    Like always, many conservatives are only 'conservative' until it comes to certain pet issues. Sadly, police seems to be the pet issue of quite a few conservatives, and any sort of reform or consequences for misbehavior is viciously fought against, no matter how much invasive big government that involves in doing so.
    Newly-minted Virginia Gov. Glenn Youngkin appears on track to become somewhat of a star in the Republican Party. He ran a successful campaign around the more lightning-rod issues of the moment: nixing critical race theory in public schools, lifting remaining restrictions around COVID-19, cutting taxes by a significant margin, and prohibiting the public from holding government actors accountable in civil court when they violate your constitutional rights.

    For the limited government advocate, one of these is not like the others.

    Qualified immunity allows state and local agents to infringe on your rights without fear of civil suits if the precise way in which they violate those rights has not been "clearly established" in a prior court ruling. Buried underneath that legalese are stories that would be comical if they didn't involve real people who had no recourse after dealing with misbehavingcivil servants.

    It's how two police officers in Fresno, California, were able to avoid a lawsuit after allegedly pocketing $225,000 from two suspects—who, it bears mentioning, were never charged with a crime—during the execution of a search warrant. It's how a cop in Coffee County, Georgia, was able to skirt civil court after shooting a 10-year-old boy who was lying on the ground, leaving his family with the bill after he needed extensive care from an orthopedic surgeon. It's how cops have been able to assault and file bogus charges against people, destroy their property, and violate their First Amendment rights while victims are left without the privilege of asking a jury for damages.

    The legal doctrine became a bipartisan target for reform after the death of George Floyd in May 2020. Before that, discussions around qualified immunity were mostly conducted by think tanks and outlets like Reason. But despite a select few Republicans willing to come to the table, a faction of the back-the-blue right still offers a sort of reflexive defense of the doctrine. Like this:

    https://twitter.com/njhochman/status...24081108320258

    It's a retort worth addressing in good faith when considering it likely undergirds a great deal of support for qualified immunity among conservatives like Youngkin, who in almost every other instance would claim that their ideology stands for keeping government honest and accountable to the people it serves.

    Hochman, an Intercollegiate Studies Institute fellow at National Review, is correct that there's been a spike in violent crime, something that many people interested in criminal justice reform would like to conveniently ignore. The problem: That metric has just about nothing to do with qualified immunity, and hinges on a fundamental misunderstanding of how the doctrine works.

    Put more plainly, the response implies that because we're experiencing an uptick in violent offenses, police officers need to be able to steal, shoot children, assault surrendered suspects, and destroy property. I prefer to believe that good cops—of which there are many—can do their jobs without relying on illegal tactics.

    "Conservatives who embrace qualified immunity do law enforcement a tremendous disservice. I think there's nothing more demoralizing to good police officers than being trapped in the profession with bad police officers," says Clark Neily, senior vice president for legal studies at the Cato Institute. "If you're going to be thoughtful about it, police do not have the ability to just unilaterally prevent or solve violent crime….As long as police officers are perceived as being institutionally unaccountable, [they] will not have the support of the community." Confidence in police hovers just over 50 percent, according to a 2021 Gallup poll, up 3 points from a record low in 2020—the first time it ever fell below a majority.

    Importantly, the response—that victims of police misconduct should have no recourse during times of higher crime rates—fails to account for how qualified immunity actually works in practice. For starters: More than 99 percent of judgments handed down against cops are paid out by taxpayers, according to a study conducted by Joanna Schwartz, a law professor at UCLA. That's because municipalities indemnify their employees from having to pay full judgments—or from having to pay anything at all. About 0.02 percent of those damages came from the actual individual government actors. Their bad behavior did not bankrupt them.

    But can't victims just sue the city? They can try, but it's likely they'll be unsuccessful there as well. Municipalities are protected by the Monell doctrine, which shields cities from lawsuits unless they had a specific policy or rule on the books that enabled the misbehavior in question. In many ways, it's an even more difficult standard to overcome than qualified immunity.

    But what about the onslaught of frivolous suits that would come down against the police? That also misses the mark, particularly when considering that it is not possible to simply enter a federal courthouse and file a lawsuit because you're mad at the cops. Before suing a government actor, a plaintiff must satisfy two conditions: that the public servant affirmatively violated someone's constitutional rights, and that the violation of the rights is clearly established in prior case law. Without qualified immunity, a would-be litigant would still need to prove to a federal judge that his constitutional rights were infringed on. Qualified immunity is only the second part—the part that sends a victim searching for a perfect court precedent where another victim experienced a near-identical sort of misconduct.

    It's for that reason that the doctrine gives license to some disturbing behavior—the sort that should concern anyone who positions himself as a defender of responsible governance. An example: "The City Officers ought to have recognized that the alleged theft was morally wrong," but the police "did not have clear notice that it violated the Fourth Amendment." This is a real quote from a real decision from a real federal court—the U.S. Court of Appeals for the 9th Circuit—awarding qualified immunity to two government actors who we apparently cannot trust to know that stealing during a search warrant is unconstitutional unless there is some obscure court precedent saying so. I'd posit that most of the public has more faith in police to do their jobs with integrity. I certainly do.

    Though qualified immunity reform appears to be in the legislative graveyard, the Supreme Court has been willing to comment more on the topic as of late. Its two most outspoken detractors are Associate Justice Sonia Sotomayor and Associate Justice Clarence Thomas, the former being one of the most liberal jurists while the latter is arguably the most conservative. "I have previously expressed my doubts about our qualified immunity jurisprudence," wrote Thomas in a 2020 lone dissent after every other justice declined to hear a case pertaining to two officers who were given qualified immunity after allegedly releasing a police dog on a suspect who had already surrendered. The high court is a particularly suitable venue for that pushback: It legislated qualified immunity into existence a few decades ago in direct contention with current civil rights law. Opposition to that sort of judicial policy making is typically a hallmark of conservatism, although in this area it's less politically expedient.


    But perhaps most insidious in this case is the idea that principles around limited and accountable government should be subject to change based on the year—a strange argument for any conservative.

    https://reason.com/2022/01/21/glenn-...te-our-rights/

    Leave a comment:


  • Gondwanaland
    replied
    Another example of the perverse and insane (and schizophrenic) practice of qualified immunity:


    https://reason.com/2021/09/10/qualif...ce=parsely-api

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


    Police violated the constitutional rights of an Alabama man when they repeatedly shot at his car, first as he inched forward in it nonthreateningly and then as he drove away, hitting him either five or six times and requiring that he receive emergency surgery, a federal court ruled last week.

    The same panel found that the officers are entitled to qualified immunity and thus cannot be sued in connection with the incident. The legal doctrine allows state actors to violate your rights without fear of civil liability if the exact manner in which they misbehaved has not been declared unconstitutional in a preexisting court precedent. (A practical example: Two cops in Fresno, California, allegedly pocketed $225,000 while executing a search warrant, but the victims were not permitted to sue because no ruling on the books said that stealing under those precise circumstances is a violation of someone's rights.)


    On June 14, 2014, Bessemer Police Department (BPD) Officers Daniel Partridge and Christopher Asarisi responded to a complaint from a woman who reported what she thought was a domestic violence dispute somewhere nearby and that she thought she heard two gunshots. When the cops arrived, they found Marcus Underwood and Ray James, who appeared to be arguing.

    The men immediately dispersed; Underwood, who got in his car, responded that they were just "clowning." Both officers say they told him to stop, but Underwood inched forward with "the foot off the brake," according to Asarisi. The officers allegedly then began shooting at his vehicle, prompting Underwood to accelerate and collide with Partridge, who was not injured. They fired a total of 20 shots and continued to shoot from behind as Underwood drove away. He ultimately crashed the vehicle into a house and needed immediate medical attention.

    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."

    It's a prime example of the outsourcing of such matters to a few bigwigs on the federal judiciary as opposed to what the Constitution prescribes: jury trials. Legislated into existence by the Supreme Court, qualified immunity protects government agents from facing accountability even when the courts admit they violated the Constitution—a privilege not bestowed to anyone without government status. It has protected a cop who allegedly beat a subdued man in a brutal fashion, a cop who destroyed a man's vehicle during an illegal search for which he lied to get consent, and more than two dozen cops who blew up an innocent 78-year-old man's home during a SWAT raid that targeted the wrong house. It has shielded cops who have shot children, cops who assaulted and filed bogus charges against a man for standing outside his own home, and corrupt college administrators who flouted a student's First Amendment rights on campus.


    Underwood's version of events was corroborated by testimony from Elizabeth Harrington, the woman who called 911 and watched from her porch as it unfolded. Meanwhile, the officers contend that Partridge only began shooting after Underwood accelerated. But the court highlights a problem: Partridge's testimony contradicts itself at certain turns and also fails to line up with Asarisi's statement.

    "The district court should have recognized the inconsistencies within Officer Partridge's own testimony and between the Officers' testimony," said Wilson. "Of course, a jury could instead credit some of the Officers' testimony and come to the same conclusion as the district court—that the Officers' actions were reasonable. But these sorts of issues should not be decided [by the judiciary]." They should be up to a jury.

    Underwood won't go before one. But could he file a suit against the city? He has to contend with Monell, a legal doctrine that shields municipalities from civil suits unless they had a concrete policy that directly led to the alleged misbehavior. In some ways, it's a standard even more rigorous than qualified immunity.

    He lost there too. "Underwood does not provide evidence of either a pattern or knowledge of improper training," noted Wilson. "He only claims that both Officers were in 'cowboy mode' on the night of the incident." Whether or not a jury would have agreed such behavior merited a settlement for Underwood's injuries will remain a mystery.

    Leave a comment:


  • Sparko
    replied
    Originally posted by Cow Poke View Post

    Like the woman (I had mistakenly typed "lady") who crashed into my car and is suing me for reckless driving. I have spent HOURS responding to interrogatory, follow up, etc, and I think any judge in his right mind would throw the case out. But we have to get there, first. And, fortunately for me, my insurance company is paying my legal fees.
    Yep. At least in Federal court, civil cases have to meet certain criteria and are reviewed by a magistrate judge to make sure the case meets those standards before it is allowed on the docket. Not so in state courts. But even in Federal courts it can take a long time and is easy to tie things up and cost someone a lot of money even if it the case is ultimately tossed out by the magistrate judge.

    Leave a comment:


  • Cow Poke
    replied
    Originally posted by Sparko View Post

    Ask JP Holding about if they actually "have to have a case" before they can sue you. Even if the case doesn't get into court, it can cost someone thousands fending off the frivolous lawsuit. Unless you are being sued in federal court, a judge doesn't look at the case to see if it is justified before "allowing it" - it is up to the defense lawyer to show that the case has no merit and file for a summary judgment. Which can take months of back and forth and filing motions and end up costing you thousands of dollars in lawyer fees and court costs.
    Like the woman (I had mistakenly typed "lady") who crashed into my car and is suing me for reckless driving. I have spent HOURS responding to interrogatory, follow up, etc, and I think any judge in his right mind would throw the case out. But we have to get there, first. And, fortunately for me, my insurance company is paying my legal fees.

    Leave a comment:


  • Sparko
    replied
    Originally posted by Cow Poke View Post

    I have been sued twice, personally, for actions while serving. I had qualified immunity, but, apparently, they had to get before a judge for him to dismiss them. In each case, the plaintiff at least got to state their case.
    I was talking if they didn't have qualified immunity. Then they could be sued personally for anything they did as a police officer that someone didn't like.

    Leave a comment:


  • Sparko
    replied
    Originally posted by Mountain Man View Post

    They have to actually have a case though. That's the point. It would only go to trial if there was evidence that the plaintiff's rights were actually violated. The kinds of frivolous lawsuits you're talking about would never even see the inside of a courtroom and may not even make it as far as a judge's office.

    The problem with this ruling is that it stops even legitimate cases from seeing the inside of s courtroom. What kind of message do you think that sends to the police force?
    Ask JP Holding about if they actually "have to have a case" before they can sue you. Even if the case doesn't get into court, it can cost someone thousands fending off the frivolous lawsuit. Unless you are being sued in federal court, a judge doesn't look at the case to see if it is justified before "allowing it" - it is up to the defense lawyer to show that the case has no merit and file for a summary judgment. Which can take months of back and forth and filing motions and end up costing you thousands of dollars in lawyer fees and court costs.

    Leave a comment:


  • Cow Poke
    replied
    Originally posted by Sparko View Post

    That's not true. You can sue anyone for anything. There is no bar you have to reach. And they wouldn't be suing the government. They would be suing the police officers personally. That is what QI protects them from.
    I have been sued twice, personally, for actions while serving. I had qualified immunity, but, apparently, they had to get before a judge for him to dismiss them. In each case, the plaintiff at least got to state their case.

    Leave a comment:


  • Gondwanaland
    replied
    Originally posted by Mountain Man View Post

    They have to actually have a case though. That's the point. It would only go to trial if there was evidence that the plaintiff's rights were actually violated. The kinds of frivolous lawsuits you're talking about would never even see the inside of a courtroom and may not even make it as far as a judge's office.

    The problem with this ruling is that it stops even legitimate cases from seeing the inside of s courtroom. What kind of message do you think that sends to the police force?
    Precisely.

    Leave a comment:


  • Mountain Man
    replied
    Originally posted by Sparko View Post

    That's not true. You can sue anyone for anything. There is no bar you have to reach. And they wouldn't be suing the government. They would be suing the police officers personally. That is what QI protects them from.
    They have to actually have a case though. That's the point. It would only go to trial if there was evidence that the plaintiff's rights were actually violated. The kinds of frivolous lawsuits you're talking about would never even see the inside of a courtroom and may not even make it as far as a judge's office.

    The problem with this ruling is that it stops even legitimate cases from seeing the inside of s courtroom. What kind of message do you think that sends to the police force?

    Leave a comment:


  • Sparko
    replied
    Originally posted by Mountain Man View Post

    Did you read the article? It specifically addresses this line of reasoning:

    Supporters of qualified immunity often say that without the doctrine, state officials would be inundated with vacuous lawsuits. Such a theory contradicts reality. Without qualified immunity, plaintiffs would still be required to prove that the government affirmatively violated their rights before going to trial.
    That's not true. You can sue anyone for anything. There is no bar you have to reach. And they wouldn't be suing the government. They would be suing the police officers personally. That is what QI protects them from.

    Leave a comment:


  • Mountain Man
    replied
    Originally posted by Sparko View Post

    It is the issue. They would have had to have done something wrong in order to need to be "before a jury" and I don't see that they did anything wrong.

    I know there are abuses of "qualified immunity" (such as the example above about the cops stealing $250K and getting away with it) but QI is needed for situations just like the example of the cops shooting the guy with the hammer. Without it, you could get no-one willing to be a cop, knowing they could be sued for everything they did.
    Did you read the article? It specifically addresses this line of reasoning:

    Supporters of qualified immunity often say that without the doctrine, state officials would be inundated with vacuous lawsuits. Such a theory contradicts reality. Without qualified immunity, plaintiffs would still be required to prove that the government affirmatively violated their rights before going to trial.

    Leave a comment:


  • Terraceth
    replied
    I am surprised neither Clarence Thomas nor Sonia Sotomayor dissented given they've both been critical of Qualified Immunity, viewing it as basically a court-created idea that doesn't have actual basis in the law. It's possible they just didn't feel strongly enough about the case to go through the extra work of writing a dissent (this wasn't a full-fledged case so unless someone feels the desire to write a dissent or concurring opinion, the votes aren't revealed to the public), or maybe they've since changed their minds.

    Leave a comment:


  • Sparko
    replied
    Originally posted by Gondwanaland View Post
    that's says a lot about police. None of it good. If they aren't willing to be held accountable, then that means most cops are dirty. No way around it.


    I speak the language of those who respond to me in such a manner.
    Really? Where did I "respond to you in such a manner?" I was having a civil discussion and your only response was "lick them boots" rather than counter what I had said.

    Leave a comment:


  • Cow Poke
    replied
    Originally posted by Thoughtful Monk View Post
    Obviously, holding bad cops accountable will take a change in the law. Not holding my breath that will happen anytime soon.
    It's compounded by the problem that many of these 'bad cop' situations involve police unions who are more focused on protecting their dues-paying member than having a "good cop" police department.

    In a normal situation, a company would not want employees who are a liability to the company, and internal mechanisms (HR) would weed them out.
    Police Unions often have greater influence than HR.

    Haven't yet had an opportunity to read the OP yet, but gonna.

    Leave a comment:

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