As Qualified Immunity Takes Center Stage, More Delay from SCOTUS | Hacker News Reader

As Qualified Immunity Takes Center Stage, More Delay from SCOTUS

unlawfulshield.com

369 pointsmnm1313 comments

Just so we know what we're talking about, here is a description of the 13 Qualified Immunity cases that may get to the Supreme Court soon.

https://www.cato.org/blog/may-15th-supreme-court-will-finall...

Sample:

Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.”

If Congress is considering legislation to change QI then the Supreme Court has little reason to take up these cases. SCOTUS should stay silent when the legislative branch is at work to correct something that was a judicial creation or when it looks like Congress intends to legislate in an issue.

Edit: I will just reply to all of the comments downthread at once because they all seem to urge the same thing. SCOTUS has no incentive to act when the legislative branch is doing something that could easily overturn or not align with their decision, which would render their decision moot. A law that Congress passes overrules any and all SCOTUS precedent on the issue because Congress "legislates against the backdrop of the common law." Further, Congress has the ability to move much faster than SCOTUS: a bill could be passed on less than a month in Congress while it will take at least a year for SCOTUS to reach a decision.

The court would not discharge its duty to follow the law if it were to decline to correct earlier precedent on the basis that the legislature could at some point alter the law once again. In this case, the question is whether qualified immunity is a correct interpretation of the code or not. Whether or not Amash proposes to alter the law in such a way as to clearly change the law to preclude qualified immunity, the court should consider the cases before it on the basis of the law as it is (or will be, if Amash decided to remove qualified immunity with retrospective effect.)

The cases would still be evaluated as per the state of the law as it stood at the time the questionable acts occurred. If police were operating under QI and QI is later repealed, changing the law's interpretation of their behavior after-the-fact to find them liable is ex post facto law.

Sucks and is unfair, but it's the same principle that stops the government from, for example, jailing people who used to drink if Prohibition were put back in the Constitution.(1)

(1) There's a carve-out in jurisprudence that if something was illegal in the past, and you're jailed for it, and it is later made legal, your continued incarceration can be re-considered. But that's handled on, generally, a case-by-case basis.

> The cases would still be evaluated as per the state of the law as it stood at the time the questionable acts occurred. If police were operating under QI and QI is later repealed, changing the law's interpretation of their behavior after-the-fact to find them liable is ex post facto law.

No, it's not: ex post facto is a term of art for retroactive criminalization; QI applies only to civil liability. Retrospective enhancements to civil liability are not Constitutionally prohibited.

Interesting. You're right about the gap between civil and criminal law, but I can't think of any examples of someone going after civil liability for something that happened in the past under the legal reasoning that a law passed after the act makes the act one a person can be liable for. Can you give an example?

A good example is the post-9/11 lawsuits filed against foreign governments that were enabled by passage of JASTA or liability for asbestos which was broadly enabled by legislation.

Not exactly the same, but the legislature retroactively extended the statute of limitations for sexual abuse lawsuits. Not a case of a newly illegal act, but a case where someone who was in the clear for a past act became liable again.

https://blog.ericgoldman.org/archives/2020/01/new-civil-fost...

Several examples here.

Section 1983 is civil, not criminal. The Klan act does have criminal provisions as well.

> If Congress is considering legislation to change QI

There already is legislation making government officials liable for violating someone's Constitutional or legal rights. 42 USC 1983 is pretty clear:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured..."

So I don't see why the court had to make up this whole "qualified immunity" thing in the first place. Just judge the question: did the government official violate the person's Constitutional or legal rights? If they did, they're liable.

As a pure layman, I would think that the 4th amendment would preclude cops from getting a warrant and then stealing everything on site. It says a lot about the country when we need MORE legislation and more rulings to prevent such a thing from happening.

> As a pure layman, I would think that the 4th amendment would preclude cops from getting a warrant and then stealing everything on site.

So would I, since according to the 4th Amendment warrants must be "particularly describing the place to be searched, and the persons or things to be seized".

> It says a lot about the country when we need MORE legislation and more rulings to prevent such a thing from happening.

Since rulings and legislation apparently haven't stopped it from happening up to now, I'm not sure how more rulings and legislation will help, without some fundamental change in how the rule of law is viewed by everyone.

> while it will take at least a year for SCOTUS to reach a decision.

The Supreme Court has the ability to rule on things overnight. A very well known case where they did was Bush v. Gore[0]; The case was argued 11 Dec 2000, and ruled on the next day.

They just generally don’t because ruling overnight would take their focus away from the other cases they need to rule on.

[0]: https://en.wikipedia.org/wiki/Bush_v._Gore

That's not a great example as it turned out (years later when the raw data came out) that Gore in fact won Florida. So their overnight decision was objectively wrong.

This is not accurate. No full recount was ever made. There was a widely publicized sample count commissioned by several media outlets, CNN, LA Times, New York Times, WSJ, etc... that was took of about 4% of the votes from select counties that then counted that Gore would have won by, literally, "60 to 171" votes - not a statistically significant result.

source: https://en.wikipedia.org/wiki/2000_United_States_presidentia...

The Wikipedia page you cite does not support your position:

> Ultimately, a media consortium [...] hired NORC at the University of Chicago[68] to examine 175,010 ballots that were collected from the entire state, not just the disputed counties that were recounted [...]

That's saying that it was sampled from the entire state rather than "select" counties.

On a broader point, it seems pretty safe to say that a 100% accurate tally of the votes in Florida would have given the state to Gore, but it is unclear if any recount would have given that result. Note that in addition to the infamous hanging chad controversy, there's also a decent chunk of votes for Pat Buchanan in areas that don't match up with his demographic base that were probably meant for Gore.

Or put somewhat differently, Florida in 2000 was a case where the margin of victory was less than its ability to accurately record votes.

> it seems pretty safe to say that a 100% accurate tally of the votes in Florida would have given the state to Gore

This is not supported by any of the sources in the wikipedia page. There don't seem to be any sources saying how the sample was collected from each or which counties. ...you are right it does not say "select".

But regardless, a margin of ~100 votes on a sample of 175K votes is not a margin with which you can make the statement "it seems pretty safe to say that a 100% accurate tally of the votes in Florida would have given the state to Gore" ...that's ludicrous.

You've misunderstood my point.

We know that the butterfly ballots were a poor design that caused vote confusion, and we also know that Bush was less affected by this than Gore (by virtue of the fact that Bush was the first hole, and thus any misalignment caused by an oblique view would line up with no hole, as opposed to oblique views causing Gore's arrow to line up with Buchanan's hole).

From the actual results, we know there is a chunk of votes in Palm Beach for Buchanan that doesn't seem appropriate. According to Buchanan's campaign, this would be a bit shy of 3000 votes for Buchanan that should have been for Gore [1]. No recount would have changed these votes (nor should one), but a more accurate voting machine would have given these votes to Gore.

That's why I say that it seems safe to say that Gore legitimately won Florida, on the basis on what the voters intended to vote, but it's quite unclear what even the best recount would have said the winner is.

[1] https://en.wikipedia.org/wiki/Pat_Buchanan#2000_presidential...

The question before the court was a point of law, not a disagreement about vote totals.

QI was invented by the courts and should be fixed there if possible.

Hopefully this law passes, but even it doesn't the court should still reverse the previous interpretation.

> If Congress is considering legislation to change QI then the Supreme Court has little reason to take up these cases

No, because the current state of the law still matters. In fact, it might matter even more if there are legislative proposals pending.

I don't disagree and, to be clear, I am against qualified immunity as it currently exists. But, my point is that SCOTUS has little reason to take these cases and risk being overruled by Congress. It's one thing for Congress to roll back 5+ year old decisions where the Court still had Scalia and Kennedy (or others) sitting, it would be another for Congress to roll back a present-day decision issued by the current makeup. The Court would lose face, and I doubt Roberts or the Justices are interested in an outcome where they would so quickly have their hand slapped by Congress.

> But, my point is that SCOTUS has little reason to take these cases and risk being overruled by Congress.

Well, it's got one big reason: to clarify the basis of the doctrine, particularly, whether (and, if so, to what extent) QI for discretionary acts not covered by absolute immunity is, as IIRC absolute immunity itself is held to be, of Constitutional character and thus not subject to legislative nullification.

I don't see why changing the law is "slapping the hand" of a court telling us what the law used to be.

IMO the Court deserves to have its hand slapped for inventing the whole "qualified immunity" doctrine in the first place, instead of just ruling based on the plain language of 42 USC 1983.

The primary job of the Supreme Court is not to decide cases. The job of the Supreme Court is to create precedent to help lower courts decide cases.

That they have to decide cases to create said precedent is a side issue.

What this means is that if the law is likely to be changed, then there is little incentive to set a precedent that will have effect on a limited number of pending cases. Whereas if the law is not likely to be changed, the precedent set will affect many future cases and has a greater impact.

Therefore the Supreme Court is properly less interested in cases if it looks like legislation will be passed to address the issue.

> The primary job of the Supreme Court is not to decide cases. The job of the Supreme Court is to create precedent to help lower courts decide cases.

Not really. The primary job of the judiciary, SCOTUS included, is to resolve "cases and controversies." This goes to the heart of judicial restraint, as proscribed in the Constitution, and is commonly referenced in the Court's opinions.

Functionally, SCOTUS ends up writing precedent. But the precedent must flow from the case. Cases mustn't be decided for the purpose of creating precedent.

Cases aren't for that purpose, but they are chosen by that criteria.

You don't have to take my word for it. The Supreme Court gets about 7000 petitions per year and only listens to 100-120 of them. Per https://www.ushistory.org/gov/9c.asp the criteria that they choose by is:

Generally, the Court considers only cases that have far-reaching implications beyond the two parties involved in the dispute. For example, a case in which a student sues an assistant principal for searching a locker may shape the privacy rights of all students in public schools. The court also tends to hear cases in which two lower courts have reached conflicting decisions. And it tends to look closely at lower court decisions that contradict earlier Supreme Court decisions.

In other words it chooses cases based on the importance of the precedent that is likely to be set or reinforced. The importance of the case to the people involved is less important than that.

> The primary job of the Supreme Court is not to decide cases. The job of the Supreme Court is to create precedent to help lower courts decide cases.

No, the job of the Supreme Court is to be the last court of appeal to uphold the US Constitution and laws passed under it. It does that by deciding cases. Setting precedent is a side effect, which can be helpful if it reduces the need for future cases of the same type to have to come to the Supreme Court again, but is not the primary purpose.

That is the purpose of the Supreme Court. However the Supreme Court listens to less than 2% of cases that come to it. But close to 100% of its decisions set precedent that is binding on lower courts.

The result is that precedent is the most effective tool that the Court has to serve its purpose. And therefore that is the most important thing that they do. And they are extremely highly aware of it.

> the Supreme Court listens to less than 2% of cases that come to it. But close to 100% of its decisions set precedent that is binding on lower courts.

And all 100% of its decisions decide cases. So more of its decisions decide cases than set precedents. So your argument is a non sequitur.

They could also save face by reversing one of the worst SC decisions within living memory. Especially one that is now universally condemned by the left and the right.

The prestige and legitimacy of the court is absolutely something that the court itself cares about.

Universally condemned? Come on, now.

In my non-constitutional scholar mind, the SCOTUS doesn't take things up often unless multiple circuit courts issue diverging opinions, and/or there are serious Constitutional questions. Given the severity of the issue, the possible prevalence of this kind of scenario coming up again, and (frankly) the clear Constitutional issues at play, they absolutely should take a look at it. If it's unconstitutional, it is unconstitutional.

The SCOTUS can't always "just go back" and pick up something they leave behind now, in the event Congress doesn't act. They kind of need to seize the moment.

Finally, if the Congress disagrees with the court, we could pass an amendment or other federal law.

> Further, Congress has the ability to move much faster than SCOTUS: a bill could be passed on less than a month in Congress while it will take at least a year for SCOTUS to reach a decision.

Congress has the _power_ to act faster, but not always the ability.

This is a problem entirely of judicial making. While I agree that Congress _should_ clean up the mess, this isn't one for the justices to punt on. They created the problem, they should pick it up as soon as they are able to.

You misunderstand the law completely in your comment and your edit. Congress (with good reason) doesn't get to shape the boundaries of constitutional law (for example the doctrine of qualified immunity we're discussing here).

That is specifically and only in the hands of the court, unless you want to amend the constitution.

Qualified immunity is not constitutional. It supposedly derives from the common law, so congress can change it through ordinary legislation.

> That is specifically and only in the hands of the court, unless you want to amend the constitution.

The Constitution nowhere says that the Supreme Court has the sole ability or power to "shape the boundaries of constitutional law". It grants the Supreme Court "judicial power", but judicial power is not the only power related to the law.

Check out Marbury v. Madison.

I'm quite familiar with Marbury v. Madison; it does not give the Supreme Court the sole ability or power to "shape the boundaries of constitutional law" either. It simply defines a key part of what "judicial power" means.

And "judicial power" includes the sole power to shape the boundaries of con law.

Who do you think can determine the boundaries of con law?

Sorry, but you are the one who completely misunderstands the law and the USA's system of government. Congress is the ONLY branch of the government which gets to shape the boundaries of constitutional law. You say it yourself in your second paragraph: Congress has plenary power to shape the boundaries of constitutional law via amendments. The judiciary only has power when the legislature has not spoken, and that power should, theoretically, be constrained to mapping the smallest contours of the constitution because delineating the shape of the boundary is Congress's domain (some would say it is their most important duty, which they have neglected for the past half century).

No, I'm sorry, because you are the one who complete misunderstands the law and the US system of government.

>Congress is the ONLY branch of the government which gets to shape the boundaries of constitutional law.

Yeah, no. Not even close. Are you familiar with Miranda, Brown v. Board, Obergefell and dozens or hundreds of others? These are all the supreme court shaping the boundaries of constitutional law. Congress has zero power to intefere here. If Congress passed a law trying to outlaw gay marriage tomorrow, it would be unconstitutional and unenforceable immediately.

You say it yourself in your second paragraph: Congress has plenary power to shape the boundaries of constitutional law via amendments.

No, I didn't say that. Congress does not have "plenary power" (not a single actor in US government has plenary power). Constitutional amendments require approval by states, so if you think I was saying congress had plenary power over anything, you misread.

>he judiciary only has power when the legislature has not spoken, and that power should, theoretically, be constrained to mapping the smallest contours of the constitution because delineating the shape of the boundary is Congress's domain (some would say it is their most important duty, which they have neglected for the past half century).

Not true at all. The Supreme Court can rule any legislative act of congress unconstitutional. Congress can make whatever law it wants and Scotus can say "nope". I love that someone who doesn't know about Marbury v. Madison is attempting to lecture me on constitutional law.

This is all nitpicking about process and doesn't change the ultimate conclusion regarding Congress's power. Name one other branch of the federal government that has the power to change what the constitution says. Not what it means, but what it actually says. If one does not exist besides Congress then Congress has plenary power.

The Supreme Court cannot rule an amendment unconstitutional.

> The Supreme Court cannot rule an amendment unconstitutional.

Well, duh. If Constitution is ammended, the new stuff can’t be “unconstitutional” because it’s literally part of the Constitution.

Besides, you’re the one nitpicking. Sure, the Supreme Court can’t change the Constitution, but their job is to interpret it. The First and Fifth Amendment don’t make any mention of technology, but the Supreme Court has ruled that those protections apply to technological speech and searches.

I am not nitpicking. The original poster said: "Congress (with good reason) doesn't get to shape the boundaries of constitutional law (for example the doctrine of qualified immunity we're discussing here)." and that the power to shape the boundaries of constitutional law is "specifically and only in the hands of the court." His assertion is flat out incorrect, and I responded by saying that Congress has plenary power to shape the borders of constitutional law. Why did I say this? Because Congress has the unique ability to amend the constitution.

Your sarcastic comment is exactly my point. If Congress has the power to make something literally part of the Constitution then they literally have the power to shape the boundaries of constitutional law because they literally have the power to rewrite the Constitution. And if Congress is the only entity with that power then their power is plenary. Which is to say that the power to shape the boundaries of constitutional law is not something that is specifically and only in the hands of the Court.

If Congress has the power to make something literally part of the Constitution then they literally have the power to shape the boundaries of constitutional law because they literally have the power to rewrite the Constitution.

Ex falso quodlibet. Congressional action is not sufficient to alter the Constitution.

> A law that Congress passes overrules any and all SCOTUS precedent on the issue

Wow, that's wrong...

Take Loving v Virginia: there, the court ruled that interracial marriages must be governed by the same rules as all other marriage.

No law of Congress can overturn that ruling. Only amending the constitution or the court itself have that (theoretical) power.

IANAL, but the difference is that in this case, QI came into being as a (very narrow) reading of federal law (§1983), which congress can amend easily. The Loving case was decided on an interpretation of the constitution, which as you say, is much harder to amend.

This is nitpicking by you, in my opinion. There are of course levels of authority between the judiciary and the legislature. Nevertheless, Congress can always overrule SCOTUS, it just depends what level of law they need to pass. A constitutional amendment is lawmaking.

It's not nitpicking to say that the court can invalidate legislation. It's one of the most important powers the court has.

Legislation would be preferred but won't happen. Mitch McConnell owns the Senate and any bills of this nature would never see the light of day.

Our experiment in democracy is throwing errors.

>>If Congress is considering legislation to change QI then the Supreme Court has little reason to take up these cases. SCOTUS should stay silent when the legislative branch is at work to correct something that was a judicial creation or when it looks like Congress intends to legislate in an issue.

WTF (sorry) took them so long? And how do you know what will pass as a law? Should we wait decades for cases to make it again to the court? Nope, SCOTUS should state what they think and be it.

Amash is a powerless nobody in congress. His proposal will very likely go nowhere.

But even if this law could go through, gambling on the future is not what courts do.

Wouldn't this be a State law anyway, not a Federal law?

QI is a supreme court created concept and it would be best if they handled it.

It's all moot. This bill has no chance in the Senate and the Republican Supreme Court is not going to reverse an earlier conservative decision.

I think the timing would not allow for politicians to oppose the shear political pressure on this one... it goes beyond tribal politics. For that matter, given Trump's populist pov, it's likely to get signed quickly as well.

I haven't read the proposed legislation so cannot speak to any specifics that may or may not be objectionable though.

I don't get the logic. When executing a warrent is the 4th amendment the only law that must be followed? If I murder someone while executing a warrent, is it unclear whether I broke the law, because the court has never declared that murder violates the 4th amendment?

I mean, that's why this is in the news right now. Yes, this one cop has now been charged, but it's not the norm.

This is a civil rights lawsuit, not a criminal case.

How come the officer isn't charged with theft/larceny?

Because the district attorney would have to bring those charges, and he doesn't want to, because it's his homies.

Which is interesting given his civil defense was “you can’t sue me because I stole the money from the police department/city not you”.

Tough on crime, as long as it wasn't perpetrated by mah buddies in blu?

The theory is that the coins were legally seized, then illegally stolen by the police officer. So the crime is theft (and various other things relating to a police officer stealing from "the system", like abuse of office), but not an illegal seizure.

I don't think that explanation is accurate, see https://law.justia.com/cases/federal/appellate-courts/ca9/17...:

> Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from Appellants’ properties. Appellants alleged, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins.

If the receipt was fraudulent, as is alleged here, I don't see how the seizure could be legal.

They even went so far as to falsify an inventory. Why would they go to that trouble if they believed their conduct was lawful? In my view this supports an allegation of wrongdoing.

Ah but if the defendant is later found innocent or charges dropped, who is sued to recover the property? The police officer or the department. Presumably the department because deeper pockets etc.

The police department is also the party who was legally responsible for those goods at the time, so obviously the defendant's case would be against the police department. The department is the one who was wronged by the officer, so they are the ones who have cause against him personally.

The defendants could make a reasonable case against both the officer who stole the property out of police custody and the police department that failed to protect it. The former for theft and failure to return the property to its owner, and the latter for negligence. I believe the term is "jointly and severally liable"?

The police department has its own separate claim against the officer, of course, for the costs they have incurred (separate from the value of the stolen property, which wasn't theirs to begin with) as a result of the officer's actions.

But from what I understand the department doesn't have the allegedly stolen property - the officers themselves do. Which is why the (innocent, I might add) individuals are left without recourse for action undertaken by government agents.

Certainly in many other contexts, the parent organization has been found responsible for negligent or illegal behavior by their employee for civil damages. That's one of the reasons for drug testing and background checks.

Thanks for that explanation. It completely reverses my initial view point.

One minor clarification: SCOTUS already chose to deny cert in Jessop, leaving the 9th circuit's grant of immunity standing.

You’d figure California could have figured this problem out without it needing to be appealed to the Supreme Court, but thankful it will (hopefully) set a nationwide precedent.

Understand that many have been predicting that some amount of reform will come so Police Unions have been pushing legislatures for indemnification within contracts negotiated.

This in effect may still shadow some of the abusive officers but it also will mean pay outs will be from the very community they were abusing people with in.

Simply put, public employee unions within the United States have an exaggerated affect on politics at local, city, and state levels. This includes both police and teachers and in many cases fire. besides bankrupting communities with excessive pension and benefits plans; in fact these were some of the golden plans mentioned as being a limiting factor to what the ACA encompassed and the House only recently tucked a provision into law that passed which removed all consideration of these plans from future ACA fudning; they are leading to bankruptcy issues for some localities. On the teacher front a three year veteran is near immune to firing in NYC if not all of NY state.

It really comes down to this, the laws have to change. Both QI as well as the legality of these particular type of unions which do not serve the same purpose unions in corporations do. They are bleeding America dry and not just in money. Be very watchful for the House to attempt to bailout all these public sector employee pensions in the near future. [0][1][2][3][4][5]

[0] https://www.forbes.com/sites/adamandrzejewski/2018/10/26/ill...

[1] https://www.nytimes.com/2020/04/02/business/dealbook/coronav...

[2] https://www.chicagobusiness.com/html-page/848696

[3] https://www.chicagobusiness.com/greg-hinz-politics/pritzker-...

[4] https://www.heritage.org/jobs-and-labor/commentary/public-he...

[5] https://www.ai-cio.com/news/10-billion-illinois-pension-bail...

While I tend to agree with everything you said and would further say that there's a nefarious nexus between buying off public unions with pension agreements states can not afford to pay, a half-step in the right direction was outlined by Ilya Somin and Johnathan Adler recently [0]:

"State and local governments should consider banning police unionization, or at least curbing unions' powers by, for example, eliminating disciplinary issues from the list of matters that are subject to collective bargaining. Whatever the merits of public-sector unions in other contexts, they create too much of a conflict of of interest in the case of employees who often literally wield the power of life and death over civilians."

[0] https://reason.com/2020/05/31/how-to-curb-police-abuses-and-...

With all the talk of unions, as well as issues around gig workers, we need to guarantee health care for all as a human right in USA. Remove the burden and misaligned incentives of employer-provided care from businesses large and small, as well as from unions, not to mention the individuals requiring insurance coverage and care.

The legislature can override those indemnification clauses, if they want. Contract law is squarely within the legislature’s ability to control; doubly so when it’s for contracts between the government and other parties.

There’s already universal indemnification, de facto where not de jure: https://www.nyulawreview.org/issues/volume-89-number-3/polic...

Has anyone ever tried to sue the union for keeping a misbehaving cop on the street? It may be that they have to defend their members, but the union should pay for the consequences, not the citizens at large.

Qualified immunity has become a get-out-of-jail-free card for law enforcement.

I believe it's the primary reason for the complete apathy law enforcement shows towards de-escalation and self-restraint in general.

Why bother behaving when the standard for prosecuting you is so high as to be laughable?

Technically qualified immunity does not shield officers from prosecution it only stops them from being sued.

So a pretty reasonable question you'd ask in the rest of the world is: Why aren't these cops prosecuted for excessive violence? The use of civil rights lawsuits in the US was a workaround for an already broken legal system that doesn't punish wrong doing by certain people.

In short the prosecutor's office has to work closely with the police to do their job. They are strongly discouraged from bringing cases against cops to avoid hurting the relationship between the two parties.

I strongly agree with this. We need an independent prosecutorial agency for handling police matters.

The police and prosecutors need to work closely together to function. It's unreasonable to ask the prosecutors to then also prosecute police powers. It's biased and unjust—even when the actors are all doing their best to act in good faith.

The problem is, who will gather evidence for this prosecutorial agency? Does it need its own police force as well? Who investigates bad actors at this new agency? Where does the ouroboros end?

Yes, I think it should be an investigatory agency with subpoena power. It could replace the IA department at offices.

We currently allow PDs to investigate themselves, which is a mockery of justice.

It ends at subpoena and arresting power. The courts would mediate disputes as they already do.

People confess in interview rooms because they are naive about the criminal justice system and thrown off balance by its sudden collision with their lives.

People testify because they feel greater loyalty to society as a whole than to the defendants.

Neither of those things are going to work against cops.

The new agency would just answer to the existing system. Balance of powers and all.

Seems like if an independent agency and prosecutor should be in charge of every single police complaint. I think every state already has a state police department and prosecutor, seems like the entire bureaucracy problem is a policy issue?

But the prosecutors shouldn't have such a relationship with the police in the first police.

- While the (especially Anglo-American) courtroom is adversarial, prosecutors shouldn't be at all compensated (money, promotion, etc.) by who they lock up. Something based on future crime rates would be much better.

- Rather than DA's needing the police, the police should need the DA. Arresting someone that isn't convicted should reflect very poorly on the police.

That side, both groups are badly in need of complete replacement, which makes it hard to talk how they ought to work together when the real "ought" goes so much further

You know, that's completely against modernity but... you don't have to micro-measure final performance on every job at the contributor level.

It's not great to rely on intermediate performance, but it is often less worse than the alternative.

> Something based on future crime rates would be much better.

What? A prosecutor’s purpose is not to prevent other crime nor to reduce recidivism. It’s strictly to ensure that crimes that do happen meet justice.

“Unsolved crimes” might be closer, but the prosecutors would definitely need to absorb the detective arm of the police branch at that point.

This just is not any way to run an incentive system. Prosecutors don't have a lever with which to manipulate future crime rates. Drug use, domestic violence, murders [1], etcetera, isn't going to stop happening.

In fact, the most effective way for prosecutors to improve their crime rate would be to persecute the high-crime racial demographics until they move out of town.

[1] edit: the non-organized-crime kind

I admit it, I was wrong.

https://twitter.com/Eric_Schmitt/status/1268195075953176576

"We have investigated ourselves and found we have done nothing wrong"

Until the concept of "Internal Affairs" dies and we get an actual independent investigative arm or some other strategy that will continue

The only time an outside investigator is called in, normally is because someone dies AND the public is upset about that death.

This reddit thread from years ago (IIRC it got linked from a bunch of subreddits) explained some of the difficulties really well: https://www.reddit.com/r/Anarcho_Capitalism/comments/2qv6o0/...

This is my feeling also, but in general I'm very frustrated at how this whole conversation is based on these "feelings" because the data is so poor. I think an important component is an independent oversight apparatus that (among many other things) is responsible for collecting standardized, high quality data that can be aggregated at a national level so we can conclusively answer questions like, "do police target certain races in their killings or is it an artifact of different crime distributions or etc?". It just seems insane to me that we keep going through this cycle over and over and spend so much time debating these questions, but we don't avail ourselves by the relatively inexpensive, straightforward step of collecting more/better data. Of course, not everyone will respect data over their own feelings/experiences, but (1) the data might agree with those feelings/experiences and (2) the rest of us can move toward a consensus at any rate.

Completely agree, we need to be collecting this data at a national level. And it's a reallly hard problem to properly asses, because there are so many confounding variables.

Nature had a great analysis on the data collection/analysis perspective last year: https://www.nature.com/articles/d41586-019-02601-9

This "feelings" complaint is a major dog whistle you know.

The fact is, the relationship between unprivileged communities is such that:

- Crime rates to not reflect actual community grievances

- Community members do not want to rely on police even if they would like to bring in some sort of neutral authority / arbitrator to a dispute.

- The portion of would-be crime where the would-be victim is happy for the police presence is incredibly low.

- The portion of actual crime where the actual victim is sad for the police absence is incredibly low.

So it doesn't even matter if the statistics show the police kill extra in proportion to the neighborhoods the patrol and that in turn is proportional to the crime rate, because you haven't Baysianed deep enough to find the cycle. As exemplified by the latter two points, there is no way to find any value for the police as they currently with a democratic basis, and as such they must be defunded and replaced with something else.

Your “facts” are actually feelings or conjectures, and are demonstrably untrue. Black communities in fact want police (and the criminal justice system) to address high crime rates.

This article collects a number of statistics: https://slate.com/news-and-politics/2014/12/black-community-...

> Finally, Atlantic Media’s “State of the City” poll—published this past summer—shows an “urban minority” class that’s worried about crime, and skeptical toward law enforcement, but eager for a greater police presence if it means less crime. Just 22 percent of respondents say they feel “very safe” walking in their neighborhoods after dark, and only 35 percent say they have “a lot” of confidence in their local police. That said, 60 percent say hiring more police would have a “major impact” on improving safety in their neighborhoods.

In fact, even today, a slight majority of African Americans say that the criminal justice system in their area is “not harsh enough” on criminals: https://gssdataexplorer.norc.org/documents/899/download (Table 2). At the height of the crime wave of the 1980s and 1990s, over 70% of black Americans felt we needed harsher punishment of criminals. Half of African Americans today say we are spending “too little” on law enforcement.

Hispanics are even more strongly in favor of policing. 53% of Hispanic people supported NYC’s controversial (and unconstitutional) stop-and-frisk policy: https://www.blackenterprise.com/nypd-stop-and-frisk-poll-rac....

Notions of “defunding the police” are an idea dreamed up by people who don’t actually live in these disadvantaged communities. Poll after poll shows that is not what disadvantaged communities actually want. They want the law to be enforced; they can’t criminals brought to justice; and they want all that done with due process protections, just like police manage to do for white neighborhoods.

Wanting criminals to be brought to justice in theory doesn't match the reality of the entire community being criminalized and treated as such.

What does it even mean to “criminalize an entire community”? And why don’t you think these respondents understand what they’re asking for? Presumably they understand their own experience with police?

Why thank you! I made claims without evidence, but you provided just the evidence I need:

- Despite worry about crime (something I never diminished), the police are not trusted. The distrust of the police while fearing crime is all the more damning.

- Attitudes towards punishment have changed since the 80s/90s as the incarceration rate has not fallen nearly as much as the crime rate.

- The slim 60% majority in favor of more policing among "urban minorities" is undercut by the huge difference between Hispanic and Black sentiment in NYC according to your source. Atlanta is significantly less Hispanic than NY, but the ratio looks like 5:1, which could well mean the Black Atlanta is closer to 50-50. Finally recall that the government of Atlanta is significantly more black than NY (including police chiefs), and that ~ slim majority is hardly a ringing endorsement.

I'll be first to admit White liberals underestimate Black conservativism, but the picture you paint is at best wary ambivalence towards the police. Thanks for doing my work for me.

> This "feelings" complaint is a major dog whistle you know.

I care very little about alleged dog whistles these days. You can only cry wolf so many times and all that.

> So it doesn't even matter if the statistics show the police kill extra in proportion to the neighborhoods the patrol and that in turn is proportional to the crime rate, because you haven't Baysianed deep enough to find the cycle.

Maybe you're right, but the conversation as far as I'm aware is still very much fixated on the former question. We are locked on this question and we can't meaningfully "baysian" our way to deeper questions without more authoritative data. If one actually cared about solving the problem, he ought to support this sort of data collection initiative.

These aren't feelings. This is about feedback loops. Effectively what is happening is that a minority number of cops are horrible, but because the garbage collection apparatus of PDs and our legal systems are broken this violence occurs without accountability.

Our police force has had it's immune system stripped away.

Qualified immunity, lack of independent prosecutors and police unions make this a multi angle problem.

Imagine every place you've worked (if you've done that) and the larger the company the more likely you are to have one or two scary psychos that you just try to keep off their radar, now imagine that coworker has qualified immunity, a state issued gun, police union backing and a blue line to back him up... you aren't going to antagonize that guy, at best you'll avoid him, and he'll go out effectively unsupervised or with someone who won't stop them, we need external processes to get rid of bad cops so police have a better work environment.

Police reform is the most pro human thing I can think, whether your a cop or not.

https://law.yale.edu/sites/default/files/area/workshop/leo/l...

> These aren't feelings. This is about feedback loops.

Then you aren't the group I was referencing. :) Your feedback loop theory seems plausible. Hard to say conclusively without more data, which is my point.

>> I believe it's the primary reason for the complete apathy law enforcement shows towards de-escalation and self-restraint in general.

One of the big issues in law enforcement reform is have more police who actually live in the communities they serve and patrol. This (in theory) should address the idea that if you've had previous run-ins with a low level criminal, you're more apt to show compassion and understanding when you have your next contact with them. You take into account you know they're not harming anybody, and most issues can be handled with simple conversations.

I live in Minneapolis and there are so many reasons Chauvin shouldn't have ever been given a badge and gun. 15 complaints of police misconduct/brutality, his personal relationship with Floyd has been well documented (they worked in the same bar). He was put on Park Patrol after his last incident of brutality, yet was one of the first to respond to the call - which is perplexing. He also worked at a local bar and the managers and owners said he had a quick fuse and was quick to violence to end disputes in the club. He also lived in an upper middle class suburb, far away from the streets he patrolled in Minneapolis.

I would also point out a black Muslim cop was recently sentenced to 12.5 years for fatally shooting a white woman when she approached the squad car after she reported a sexual assault near her house. The charges in that case are almost identical to what they've charged Chauvin with. It will be interesting to see how this trial goes and what kind of a sentence he will end up with.

Another disincentive for willful misconduct is that the police do not bear the cost of resulting lawsuits (the taxpayers take the hit).

Police should be self-insured, backed by their pension plan. They have to have skin in the game in order to care.

I'm curious - it's obvious what abuses of qualified immunity are driving this, but the law must have been originally put in place for a reason. Are there any examples where a police officer was shielded from prosecution for something that, if you or I did it would definitely be a crime, but that a reasonable person would say, "yes, this is a good application of qualified immunity"?

It's important to clarify. "Qualified Immunity" is NOT a law. It is judicial precedent. That means the Supreme Court made this up and courts don't go against prior rulings except in rare cases. Sometimes Congress creates laws to confirm judicial rulings or go against them and clarify their intentions.

The Supreme Court has ruled a lot of things that we would not allow to stand today. For instance, the Dred Scott Case [1] "In a landmark case, the United States Supreme Court decided 7–2 against Scott, finding that neither he nor any other person of African ancestry could claim citizenship in the United States, and therefore Scott could not bring suit in federal court under diversity of citizenship rules. Moreover, Scott's temporary residence outside Missouri did not bring about his emancipation under the Missouri Compromise, as the court ruled this to have been unconstitutional, as it would "improperly deprive Scott's owner of his legal property".

[1] https://en.wikipedia.org/wiki/Dred_Scott

There is a difference between law and legislation; qualified immunity is law, but not legislation (that I know of).

According to Wikipedia

Legislation = Legislation (or statutory law) is law which has been promulgated (or "enacted") by a legislature or other governing body or the process of making it

Qualified Immunity = Qualified immunity is a legal doctrine in United States federal law

Legal doctrine = A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case

So it's a bit of a grey area, but I think the greater point stands that this is how court cases are decided vs. a law in the traditional sense that people think about laws.

In most of the English-speaking world, the vast majority of law is not legislation. Regulations and common law precedents are vast, and make up much more of our law than does legislation.

This may not be true in other areas, I know that many countries (and Quebec) have civil law, where legislation is more extensive.

Quebec and Louisiana both.

Common law is common in the English speaking world because it is derived from common law as practiced in England. However both Quebec and Louisiana were acquired from France and kept the French legal system. (OK, Quebec lost French law, and then was given it back so that they wouldn't rebel and become part of the USA.)

In Europe broadly, civil law is more common.

It's not really a grey area.

Common law, which is to say law that is not codified but defined by judicial decision making, is law "in the traditional sense that people think about laws" just as much as statute law.

In Michigan, for example, murder is a common law offense: no legislation exists that defines what murder is, although penalties etc. are legislated.

"made this up" is a bit pejorative. The also "made up" modern abortion rights and gay marriage. A law professor would probably say that they decided that prior interpretation was unjust/unconstitutional and made a change.

The pejorative isn’t unwarranted. The equal protection clause justification for Obergefell is a fairly straightforward application of the text of the 14th amendment and longstanding Supreme Court precedent holding that the right to marry was fundamental even at the time of the founding. They didn’t conjure a right out of thin air, but found that there was no justification for denying the right to a particular group when the constitution guarantees “equal protection” to all groups.

Qualified immunity doesn’t rest on nearly as solid a ground.

You could teach a whole course on Roe alone. Let's not just generalize a monumentus court decision like that with a hand wave.

Not to mention, two of the champions of Roe (O’Conner and Ginsberg) have thrown its reasoning under the bus.

Do you have any resources on that? I find this genuinely interesting.

RBG has always been a fan of abortion rights via incorporating the privileges and immunities clause of the 14th Amendment to the states, a path blocked after the 19th century Slaughterhouse cases. Reva Siegel at Yale Law School is good to read about this.

*privileges or immunities clause, sorry (Not to confuse this with Article IV of the Constitution). And I guess RBG wants to use the equal protection clause directly.

That's rather the point of GP, but applied to QI instead of Roe.

The idea behind qualified immunity is to protect government employees from nuisance suits over discretionary actions performed in their official capacity, excepting actions that violated local laws or civil rights. (Basically, it lets a human government employee make reasonable mistakes.)

The original laws of this country did not permit lawsuits against government employees acting in an official capacity. After the Civil War, the Civil Right Act of 1871 was passed allowing citizens and residents to sue government officials for civil rights violations suffered under color of law. The qualified immunity doctrine was created by the courts after that to shield public officials from nuisance suits for discretionary actions (generally meaning bureaucratic actions) by people angry over actions that went against them (i.e., for denials of licenses, judgments, etc.).

Unfortunately, due to the volume of nuisance suits, this doctrine got stronger and stronger over time. At some point, the courts began applying this strengthened doctrine intended for bureaucratic actions to police actions.

The idea that law enforcement and government officials should be treated less strictly under the law is, to me, completely preposterous. If anything, they should explicitly not be given the benefit of the doubt and should be treated much more strictly under the law.

I realize that a huge number of people completely disagree with that, and I don't really know how to persuade any of them other than to urge them to examine history and note the consequences of authoritarianism.

Well, i mostly agree with you but want to point out one fine distinction which is that you can still sue the government for your rights being violated, but you can't sue the individual bureaucrat.

Put another way, if your local DMV agent is acting funny, you can still sue the DMV, even if you can't sue the agent directly, FWIU

Anyway, hopefully the SC will throw this all out in the coming weeks.

If a DMV agent is depriving you of your rights or mistreating you in some tortious way, why shouldn't you be able to sue that DMV agent? I'm not necessarily against government offices providing legal services to help defend their employees (AFAIK that's common for public school teachers and employees), but why shouldn't you be able to sue the person who is committing the tortious act?

Qualified immunity wouldn't protect a DMV agent (or other bureaucrat) depriving you of your rights in violation of the law.

It only protects a government employee who makes a discretionary decision as part of their normal duties. This might mean they get it wrong, but if they can show their decision was reasonable and (where relevant) pursuant to a process established by the agency, that's fine. In that case, the problem is the process not the employee, and so the proper defendant is the agency not the employee that is simply following procedures set forth by the agency.

Because that agent is acting on the authority of the DMV, and the DMV is responsible for how their authority is wielded. The intent is to keep organizations from facing repercussions for bad behavior by just throwing the individual actors under the bus. Of course this only works out if the organization itself can be held accountable, and forced to properly deal with internal troubles.

As a taxpayer, I'd much prefer individual DMV agents being sued and having to defend themselves, compared to the DMV itself being sued and my tax money being used in its defense.

Your position is really contrary to your interests.

DMV agents are probably not very wealthy. By suing them you would simply drive an underpaid worker into bankruptcy and probably never get much money back.

Meanwhile, the DMV can easily scapegoat it's employee and never reform or make any systematic changes. Furthermore you would have no recourse to sue them directly since they can just keep hiring more poor workers to be thrown under the bus.

Ultimately the tax payers (or voters) need to keep the DMV accountable. There is no alternative. Democracy doesn't have shortcuts. The tax payers have to pay when the government screws up. More to the point - the tax payer ALWAYS ends up paying when the government screws up, without exception, 100% of the time. Either they pay by having a corrupt DMV that hurts society and everyone at large, or they pay through lawsuits and higher costs at the DMV.

Would you prefer that individual programmers be sued (instead of their employers) and have to defend themselves when apps/programs crash due to bugs?

Because that's basically what you're saying you want.

And anyways, if the DMV agent was acting in their capacity as a DMV employee and following established procedure, the DMV would end up paying their legal costs and settlements against the employee anyways...but without getting a say in the defense against the underlying lawsuit.

It's an interesting problems. Doctors have liability insurance for this reason basically, which just pushes healthcare costs even higher, and creates this very opaque system of accountability and care quality.

So the planning commission denies a permit for an addition to your house, diminishing its value. Or grants a permit to your neighbor, to the same effect.

One approach would be to have the judge say, "actually that addition looks fine to me, the commissioners shall pay you the corresponding value out of their kids' college funds."

Another would be, "I'm not the planning commission, that's their decision to make, unless they've acted outside the bounds of their charter, tough shit."

Qualified immunity is essentially the latter.

Except in that example the planning committee did something that wasn't otherwise illegal. Unless your case is showing that they're picking favorites or something.

No, that example is precisely on point.

Qualified immunity applies precisely because they didn't do anything illegal (based on the limited facts of the hypo). If they did something illegal, then qualified immunity would not apply.

This utterly tautological, which part of the problem with QI. QI applies precisely when there's no precedent that explicitly declares an action to be illegal (c.f the case of cops that used pepper spray, which was deemed sufficiently different from tasing that the rules established for tasing did not apply, there was therefore no precedent for the precise case of unnecessarily pepper spraying a person and thus QI applied.

QI completely sidesteps the question "is it illegal" by replacing it with "has a suitable court ever established a precedent of suitable specificity saying that this is illegal when carried out by a government official/employee"?

Which is likely how Gauvin will walk, since despite killing person being illegal, there are no suitable court precedents ruling with sufficient specificity that a government agent killing a person is illegal.

No, it's not tautological.

QI applies if the government employee shows they acted reasonably in exercising discretion in performing their job. It doesn't matter whether or not there's no precedent.

Cases saying where QI applies, like the pepper spray case, exist because nobody knew beforehand if it applied to the use of pepper spray. And if you read the case, it was the policy of that police force to use pepper spray. Thus, the question boiled down to whether it was reasonable the officer to use pepper spray in that situation. The police force is the proper defendant in that case, not the individual officer.

That's both ridiculous, wrong, and clearly FUD. Within the past year several cops have been found guilty of murder or homicide for the illegal use of force resulting in the death of someone. It's very likely that Gauvin will plead guilty to avoid a trial and secure a reduced sentence, because if he risks a trial he would be sentenced to life in prison if he's found guilty. (To walk, he'd need to convince 12 people that he isn't guilty; a hung jury would just result in a re-trial.)

>If anything, they should explicitly not be given the benefit of the doubt and should be treated much more strictly under the law.

How many of your tax dollars are you willing to pour into addressing the volume of nuisance cases then?

> The idea behind qualified immunity is to protect government employees from nuisance suits over discretionary actions performed in their official capacity, excepting actions that violated local laws or civil rights. (Basically, it lets a human government employee make reasonable mistakes.)

But why shouldn't all people be protected from nuisance suits over reasonable mistakes?

Because there's no way to draw a clear line between "nuisance" suits and "serious" suits. Go ahead, try articulating it in a precise way that can't be gamed.

I think the parent comment was making the point that what's good for the goose is good for the gander. If a protection is generally useful, it should be generally available.

As a private citizen you’re acting on your own behalf and discretion?

Here I can’t sue mr Amash if I disagree with his bill, but I can sue him as a private citizen if he violates my civil rights as a person.

The immunity enjoyed by Legislators is similar to but distinct from the Qualified Immunity enjoyed by government employees.

In the case of Federal Legislators, their immunity is written into the constitution explicitly.

No such explicit provision exists for government employees.

It IS generally available. If you are acting on the behalf of a private organization (and not a public one) the corporation that you work for is responsible for your actions (short of breaking the law) and not you.

IANAL, but I think that in many, if not most cases, you're jointly liable with the corporation. You may not be worth going after if the corporation has a lot of money and you don't, or the company may indemnify you, but you're probably still liable.

> I think that in many, if not most cases, you're jointly liable with the corporation

Probably depends on exactly where you are, but in the US the "LL" in "LLC" is "Limited Liability". (The same concept applies for a C-corp, and Europe has equivalent constructs AFAIK.)

One of the main selling points of a corporation is limited liability. If you are acting on behalf of the company you are very explicitly not "jointly" or in any other way liable for its actions. There are very specific things you have to do wrong to become individually liable; this is called "piercing the veil":

https://www.nolo.com/legal-encyclopedia/personal-liability-p...

The fact that you use the word "liable" is telling, because QI does not protect someone from illegal actions they take while operating as an agent of the state (or at least it shouldn't/wasn't intended to). It sets up another obstacle whereby if you want to go after an agent of the state personally for their actions, you have to be able to prove those actions are illegal before you can even start talking about their liability.

It isn't a question of defining that clear line. I think the parent poster is saying: why should only government employees get this special immunity? Why do government employees get to make reasonable mistakes and be protected, but no one else does?

Because they act neither in their own name nor for their own benefit.

Issuing or denying a permit could easily have millions of dollars of impact. Nobody in their right mind would agree to take that kind of personal responsibility without a proportionally high profit.

Same is true for any other employee of any other organization.

If a cable tech steals something from your house, is the cable company liable, or the cable tech?

Edit: a similar doctrine should (but doesn't) apply to decisionmakers at large corporations. If the CEO is told repeatedly about a safety failure and refuses to take action, it's ridiculous to me that the CEO isn't personally liable for any damage or injury caused as a result.

In most (all?) countries CEOs (and directors, and employees) are personally liable for criminal acts.

The problem is this whole qualified immunity is a civil thing. Workplace safety negligence, theft, police violence all are criminal cases. But. After the the prosecutors (DAs) stopped charging police officers people started suing them in civil court.

The problem is not QI per se, the problem is _wtf_ is going on with cops killing anybody in non-violent cases. (And how come there's not a public inquiry when someone dies in law enforcement custody or during any interaction with police. And how come nothing has really changed over the years - except police got the old tanks from the post-9/11 war-on-terror spending spree.)

QI doesn't protect government employees for their illegal actions so you're comparing apples and hammers.

QI protects government employees from retaliation for decisions made as part of their job, that are necessary for them to complete their job. Police unions and sociopaths with badges and law degrees have bastardized this to try to use it to protect police officers for murdering people.

So then flip the question, why should government be immune to nuisance suits if there is no precise way to differentiate them from serious suits?

I think you've got it backwards: the government itself isn't immune, but individual government employees are. In other words, you can sue the state of Utah over its policy, but not the individual employees implementing that policy.

I think the idea was that the government is a big target and it hurts everyone when it is the subject of nuisance suits. Whereas an individual is less likely to be targeted.

why should government be immune to nuisance suits if there is no precise way to differentiate them from serious suits?

Under the centuries-old principle of sovereign immunity, the government can simply choose not to be liable for anything at all. Sovereign immunity is the default for most countries now, and throughout history.

The US and the countries of the EU are relatively unique in allowing themselves to be sued for damages for their failures.

That's what I'm saying, is that they shouldn't. And that probably nobody should, because legal recourse is essential, even if it's open to abuse.

If there was a way to draw a clear line, it would kill the insurance industry. It is one of the reason why you are required to have insurance on everything.

Is exactly the point I'm making.

We do in some aspects.

An example might be Good Samaritan laws. Such laws are intended to reduce bystanders' hesitation to assist in CPR, for fear of being sued or prosecuted for unintentional injury or wrongful death.

The problem here however, is the obvious and rampant abuse of QI...

I would suspect it's a Hobbesian thing - we allow government to do things closer to a stage of nature (e.g. locking people up) and deny that pleasure to ourselves. As such because government employees by their nature do things with our consent that we can never do the potential for nuisance suits arises.

So if I grab someone off the street and handcuff them we can be almost 100% sure I'm committing a crime. If the police do the same thing we can be almost 100% sure they are not committing a crime.

Exceptions happen in both cases but it's not unreasonable (which isn't to say it's correct) to take make laws that take that into account.

Ideally. Government workers are just more likely to pick up nuisance suits (and legit suits) than the average individual due to the nature of their work. I can see why the concept originated.

That's sort of what a corporate entity provides and why people form corporations instead of doing business in their own name.

It is important to emphasize that there are no actual laws behind Qualified Immunity. It is a doctrine that was "invented by the Court out of whole cloth".

See: https://www.cato.org/blog/qualified-immunity-supreme-courts-...

Lets say you want to build a deck. You put together the plans, take them to the planning commission, and they rightfully reject it for being structually unsound.

Qualified immunity is what prevents you from personally suing each member of the planning commission to pressure them in to reversing their decision. Think of it like the legal system throwing an exception, we aren't even going to consider this because your beef is with the city not an individual employee.

Police have qualified immunity because otherwise they would face personal lawsuits every time they wrote a rich guy a speeding ticket, or a convicted murderer has nothing better to do but get his law degree in prison.

In my opinion, qualified immunity is _not_ the problem. If an officer does something in their official capacity that is wrong, it is up to the department and the DA to deal with. Just like if the hypothetical planning commission did something illegal. Unfortunately police unions prevent that from being a viable option.

> Unfortunately police unions prevent that from being a viable option.

Exactly: this should really be in the realm of criminal prosecution, not civil suits, in which case the positives of qualified immunity could remain in place. But we have such a toxic, broken, in-group culture in our police force that we cannot rely on self-directed justice to happen. So I think we have no other option but to open the floodgates on civil suits.

Most other countries have a police-police, whose only job is to prosecute misbehaviours of the police.

Anyone can make a complaint to them, and they will investigate, and if they believe the law has been broken, can prosecute individuals (in a regular court) or fine police departments as they see fit.

In the US there are oversight departments/agencies and even the FBI that are responsible for legal enforcement above and beyond the general Police. However, they usually wind up in closer relationships professionally and rarely ever prosecute criminal actions of Police.

Both my parents were retired Police, and I know there's a lot of good people that work in those fields. I also know that not every community, situation or person is the same and there are a lot of people on power trips that even fellow cops don't always like. It's often hard to speak out from within a group.

Some of the more recent events are particularly grievous and should absolutely be prosecuted... There are many more incidents that should be as well. I tend to say it's rarely (though sometimes is) about race, it's usually a matter of blue vs everyone else.

Sounds great. In the U.S. I wouldn't be surprised to see such a group develop a shared identity with the regular police and become corrupt, but maybe it's worth a try.

The thing we already have is worth a try?

Every police department with more than a couple officers has an official structure for reporting abuse to leadership (either police leadership, or civilian leadership). State agencies and police forces absolutely have jurisdiction to investigate local departments, and the FBI and DOJ can investigate anyone they want.

By having a team of people whose only job is to investigate the police, they look bad if they don't uncover issues like this.

I suspect the mistake in the US is that all the people who could punish the police are 'too busy' with other things. Make a dedicated team who has nothing else to do, and suddenly they'll be snooping around like journalists looking for dirt so they can make a conviction and get a promotion.

Exactly this.

FBI doesn't want to investigate LAPD. They need LAPD, down the line, when there's some case for which they'll need cooperation.

What's needed is a Federal policing agency tasked with investigating and prosecuting police misconduct. That's the whole remit; police misconduct is their alcohol, tobacco, and firearms.

Can they not buy insurance for this?

That is exactly what will happen if QI goes away, and taxpayers will ultimately pay the premiums. Maybe that would be better, or maybe not. But in general, few policemen could withstand the risk of a single ruinous suit, and without insurance of some kind, would be forced to flee the occupation.

I'm fully okay with having officers flee the occupation if they've given themselves reasons to fear a legitimately ruinous suit.

The problem is that the legal system has a quite noticeable element of randomness to it. Despite what you may have read, justice is not always done. (source: have been on the receiving end of this)

As a practical matter, if there is possible liability, everyone will have to have liability insurance, just as in the medical professions, for example.

You realize that reason could totally be "He's a police officer in 90210 and rich people don't like being pulled over for speeding".

Pretty sure cases like that would get thrown out. And even if some didn't, I'll that tradeoff instead of the current status-quo.

As an American I'm fine funding justice (freedom isn't free, as they say) and as a liberal I'm double fine taxing the rich for it.

> I'm double fine taxing the rich for it

Is that how it usually ends up?

Nah it isn’t but, vote progressive if you think it should be.

A semi-joking suggestion I've heard with respect to police unions is to make the settlement agreements from police abuse cases come out of the union pension fund.

I don't understand why this is a semi-joke. It's a serious proposal for incentivizing the police union to police themselves. Police misconduct rarely has consequences that impact police themselves. This is a step in correcting this incentive misalignment.

While the idea has some merit in making the cost of repeat offenders expensive so that the force polices itself to protect their pensions, it is unfair to penalize those that have no control including officers that have already retired.

I think the best way forward is to force individual officers to carry liability insurance that covers settlements. This will have the effect of pricing out repeat offenders from the job.

Penalizing the pension fund would give incentive for police officers to police bad apples and that's exactly what's lacking in cases like the Minneapolis.

Those other 3 officers (and the entire department) need to have skin in the game in that situation.

Yes retired officers should also be "reaping what they sow".

I don't know if would work in practice but there are multiple reasons to recommend it.

edit- just to be clear this would have to be negotiated as part of the union agreement and not something a court could just do.

A pension is an agreement between me and my employer to give me certain benefits after I retire. The pension fund, established by my employer to pay for my pension, doesn't really enter into it. Its existence is convenient for both of us to a certain extent, but it doesn't matter to me if the fund has a billion dollars or a million dollars. The boss still owes me what he promised either way.

The police pension funds work the same way. If the Minneapolis police pension fund was sued tomorrow and wiped out, the city still owes the police their pensions just the same as before. The money to pay those obligations has to come from somewhere. I suspect that it would come from the city.

They work in exactly the way that they are negotiated, nothing you've said changes that.

It would absolutely have to be part of the negotiated agreement with the police unions and yes the retired officers of 2040 should be impacted.

> it is unfair to penalize those that have no control including officers that have already retired.

They have more control over the behavior of current police officers than I do.

Believe me, if bad cops start taking money out of the pockets of the rest of the police, actual reform would come much quicker.

Same reason the entire football team has to take a lap when one person is screwing around. That person quickly becomes unpopular.

From what I can tell, it is typically the case that when a prosecutor attempts to prosecute a police officer for misconduct, there is immediate stonewalling and a lack of cooperation from the rest of the police force. Or a mayor tries to push for reform, and the police decides to... stop doing their jobs in response.

While I believe that the "bad apples" among the police force is relatively rare, the fact that the rest of the force is to some degree resisting attempts to root them out makes them complicit in the acts to some degree.

The intent isn’t to stop repeat offenders it’s to encourage culture change through peer pressure. Liability cards don’t have the collective punishment characteristics necessary.

Both of these proposals are going to have worrying knock-on effects. They are both trying to penalize bad actors, instead of trying to incentivize good actors. Do we really make these institutions better by making it harder for "bad" people to work there? Wouldn't it be better to make it easier for "good" people to work there?

I don't have good sound proposals, but bonuses for positive steps might be a good start.

Of course, this is completely different from the idea of QI, which, having worked for the federal government, I can see why it's important. Even if it has been over-applied.

The union can totally take the money from their pension fund in a way that penalizes the offender the most and the retirees not at all. Let them figure it out, you don't need the extra step of insurance.

Police should be required to get private insurance.

Bad police should get priced out of the job as their insurance premiums make the job less and less profitable.

The worst should become unemployable as police when they become uninsurable.

It's not the union, expecting a group to police themselves is just unrealistic, that's against human nature.

In theory, elected officials and journalists should be able to keep police force in check. But in reality, if you make enemy of your local police force, life is going to be very hard for you.

A friend gave up on journalism, in major part due to her stint at reporting on local police issues.

I still don't get it though. What would you be suing a commissioner over that would get them to reverse their decision? If you're suing them directly for their decision, then surely that just wouldn't be a valid lawsuit. If you're suing them for some unrelated valid issue, but using that as pressure for them to change their decision, then surely that's already illegal. Isn't it considered extortion or blackmail to compel someone to give you something of value by threatening to sue them or report them to law enforcement?

I always wondered why pro sports players would yell at the referee when they got an unfavorable ruling. Apparently they're not trying to get that ruling changed, they're preemptively intimidating the ref so that _next_ time they'll rule differently. Go $sportsball!

Getting sued is expensive, stressful, and time consuming no matter how the case turns out.

If you sue all the commissioners every time they issue a decision that you don't like sooner or later they'll see your next request and think "Can I afford the inevitable lawsuit if I say No like I should?" and/or "Can I take the stress? Can my family?" So next time they'll give you what you want just to avoid that whole mess.

IANAL but it sounds like qualified immunity is intended to short-circuit this: even if you made a reasonable mistake here and there you can't be sued by some bullying jerk.

Okay, then why doesn't that happen in analogous non-government situations? Why doesn't every construction company sue a developer every time they don't get given a new contract? Why doesn't every job interviewee sue every company that doesn't hire them? Surely the legal system has some mechanism for dealing with this. I do think there should be some mechanism for short-circuiting preposterous lawsuits, and I think it should be available to everyone.

Not a lawyer but maybe there’s a few possible reasons:

Standing: without a reason that looks remotely viable, a court might just throw it out without requiring a defence.

Risk: big companies have legal departments on hand to make your life hell for even trying.

Reward: smaller companies don’t have enough money to be worth your time to sue. Even if you’re trying to “send a message” the first attempt is so expensive for no gain, it’s not worth your while.

Government departments tend to fall into a bad middle ground. There’s enough money to be worth fighting over but they’re not always fantastically well equipped to defend it (or at least they’re perceived as such).

There is no right for equal treatment for a construction company to be chosen by a developer. If the government is the"developer", you regularly see lawsuits.

You would think so, yet Scientology managed to use this exact tactic (suing individual IRS agents) to get away with not paying many millions of dollars in taxes.

This would imply the tactic works (and that IRS agents probably need more protection too).

https://www.latimes.com/archives/la-xpm-1991-08-13-mn-861-st...

> If you're suing them directly for their decision, then surely that just wouldn't be a valid lawsuit

The commenter is saying that the fact that this isn't a valid lawsuit is what is meant by qualified immunity, I believe.

> The commenter is saying that the fact that this isn't a valid lawsuit is what is meant by qualified immunity, I believe.

One idea: If a lawyer brings n invalid lawsuits within m months (where n, m are magic numbers, n preferably under three, m preferably over twelve), the lawyer gets disbarred. The only problem is: who decides whether a lawsuit is valid? Is there an objective way to judge this?

That would cause lawyers to avoid cases like the plague unless they’re airtight. In truth, if the opposition is big enough, they’d probably avoid it in case they end up disbarred.

I could see a strategy here being to make the case seem invalid (by some definition) as the defence, essentially playing the man and not the ball.

Why shouldn't it also be invalid in an analogous non-government situation?

I believe it is? If a starbucks employee treats you poorly while on the job as a starbucks employee, then starbucks is liable because their employees are their agents. The difference is that the government, unlike starbucks, enjoys sovereign immunity -- they can't necessarily be sued and held liable. There's probably more to it. I'm not a lawyer.

That’s certainly not the case. The government can be sued.

The government can be sued because Congress has consented to being sued, not because the government is suable by default.

https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...

> In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit.[7] The United States as a sovereign is immune from suit unless it unequivocally consents to being sued.[8] The United States Supreme Court in Price v. United States observed: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it."[9]

The only reason the United States can legally appear as a defendant in a civil suit currently is because Congress has consented to being sued:

> The United States has waived sovereign immunity to a limited extent, mainly through the Federal Tort Claims Act, which waives the immunity if a tortious act of a federal employee causes damage, and the Tucker Act, which waives the immunity over claims arising out of contracts to which the federal government is a party. The Federal Tort Claims Act and the Tucker Act are not the broad waivers of sovereign immunity they might appear to be, as there are a number of statutory exceptions and judicially fashioned limiting doctrines applicable to both. Title 28 U.S.C. § 1331 confers federal question jurisdiction on district courts, but this statute has been held not to be a blanket waiver of sovereign immunity on the part of the federal government.

But in general, the government of the United states is immune from civil suits, and Congress can decide at any time -- even during an active case -- to decide to not want to be sued anymore.

The governments of the states -- being the ultimate sovereign authority of the United States of America -- are also generally immune from civil suit, except in limited circumstances. I believe most have however consented to being sued.

On this matter, the supreme court has said:

> we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the "plan of the convention." States may consent to suit, and therefore waive their Eleventh Amendment immunity by removing a case from state court to federal court.

If your boss terminates you, the lawsuit wouldn't be against the boss, but the company, wouldn't it? Is it common to sue individuals that act for private entities?

My understanding is that QI in this scenario is functioning like an anti-SLAPP law does elsewhere; it's not that the suit would have otherwise been won, it's that we need mechanisms to short-circuit those suits more quickly

But it's not _quite_ that.

An anti-slapp law provides a short-circuit motion to dismiss. But the legal merits are still evaluated–just much earlier. An anti-slapp motion basically says: "Even if everything the plaintiff said were true, it's not legally actionable so end the case now".

Qualified Immunity is insane because it doesn't require a legal evaluation of the case. Qualified Immunity (practically) says: "because this exact fact pattern hasn't been tested before, the officer couldn't have known it was specifically wrong. Since the officer couldn't have known it was specifically wrong, we don't need to go any further".

That means, a case dismissed because of QI doesn't even end up demonstrating that the fact pattern was legally wrong!

> it is up to the department and the DA to deal with.

They have zero incentive to do this.

I’m sure those bar associations and prosecutor’s associations have been as hard at work on that as the cop in The Big Lebowski was on the car theft.

"Unfortunately police unions prevent that from being a viable option."

Well, police unions, district attorneys, judges, elected officials, and the political process itself. Oh, and the police themselves. Without the cooperation of the entire system, police unions have little power over situations involving illegal acts.

This ignores the entire practical reality of qualified immunity and isn't helpful in the discussion at all.

The actual law in this case is the 1871 Enforcement Act, also known as the Civil Rights Act of 1871: https://en.wikipedia.org/wiki/Third_Enforcement_Act

Its text is quite straightforward, essentially saying that judicial officers are liable for the violation of a person's rights.

However the concept of "Qualified Immunity" is a Supreme Court invention which began to be applied in the late 1960s, and which today effectively shields police from any meaningful (civil) liability as originally defined by the law. It's hard to square the modern interpretation and its effects with the clear language in the statute, yet here we are needing to pass a law that effectively says "yes this law actually means what it says".

https://theappeal.org/qualified-immunity-explained/

IANAL.

> shields police

shields police officers, not police departments.

The part I don't understand is that does QI prevent or chill suing departments (which have more money than officers), who then could sue officers for exceeded their job duties?

Suing the department just means the taxpaying public (who are generally the injured party in the first place) end up paying more in taxes to cover the cost of the lawsuits and the police department continues unscathed.

As others have said, it actually wasn't a law that was put in place -- it's court-created.

Qualified Immunity says that an officer can't be sued for violating civil rights (Section 1983) unless it was clear at the time of the action that it was in violation of the law. It has nothing to do with criminal liability in the event the officer commits a crime; it's a restriction on the civil side.

There is a grain of good policy here, becuase if there is a lawsuit which plantiff is inevitably going to lose, having a clear rule that stops the lawsuit before discovery saves serious time and money.

There are two independent problems with it, though:

1. A judge who just doesn't like 1983 lawsuits can always find a trivial manner to distinguish the case from existing precedent; e.g. distinctions-without-differences like "the court has ruled you can't detain someone for 72 hours without access to water but the plantiff was only detained for 70."

2. There is no incentive for anyone to be the first mover to file a lawsuit against any particular practice since the first mover will lose on qualified immunity grounds.

Why would anyone be a second-mover if the first-mover lost the case? There's still no precedent to build off of.

Good point -- appellate courts have been known to make rulings of the effect "this govt employee gets qualified immunity, but future govt employees are put on notice," but this is far from every case.

The issue is that they are “put on notice” for extremely precise things and it can usually be argued that technically the new case is very slightly different to the old case and so qualified immunity applies again.

I didn't know courts had that option - thank you!

> There is a grain of good policy here

So are there any good counterexamples of it being used in a beneficial way?

I believe qualified immunity is a creature of the courts, and related to absolute immunity (given to prosecutors and legislators), as well as sovereign immunity (possessed by the state).

The idea is that people acting on behalf of the sovereign deserve some of the immunity that the sovereign itself takes advantage of. The immunity allows agents of the state to act with less fear of reprisals, especially in edge cases, or when dealing with powerful counter-parties.

Isn't this also supposed to redirect lawsuits towards institutions, instead of agents of these institutions? I.e. a police officer did something that otherwise would be a crime, so the law investigates the whole PD as an institution, and not the officer that presumably was just following orders given by said institution?

>..., but the law must have been originally put in place for a reason.

The changes that got us here today do come in the late 60s, while the country was dismantling Jim Crow. I can't help but think this was used as a bulwark to ensure that even if the law of equality was enforced, social "customs" in policing could ensure that it was a moot point.

The application of qualified immunity clearly stems from the principle that sometimes one causes accidental harm when doing the right thing. It's most reasonably stated as an extension of good samaritan laws. The problem isn't the principle itself but rather how and when it gets applied.

> Are there any examples

Your house catches fire, you're unconscious from smoke inhalation, and your daughter is trapped in her bedroom by the blaze. Emergency responders decide to enter your home to rescue you and your daughter. On the way in, one of them breaks something very important to you. Can you sue for damages? Can you sue for trespassing? Did they "break and enter" your home?

As I understand it QI is not a law, but something the Supreme Court invented in the 80s.

They are, by complete coincidence, about to possibly take on some QI cases this week.

https://reason.com/2020/05/29/the-supreme-court-has-a-chance...

Every QI case the Supreme Court has taken in the past few years has only made it stronger. There is no chance that Trump's SCOTUS is going to change their tune.

Um.. Clarence Thomas doesn't like it either. In his opinion on Zigler v Abbasi, Justice Thomas says:

> Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U. S. 356, 363 (2012) (internal quotation marks omitted).

> … Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

> Are there any examples where a police officer was shielded from prosecution...

QI doesn't apply only to police officers, indeed, the modern framing was established in a lawsuit against Presidential aides on a federal contracting matter. (And done in the course of denying their claim of absolute immunity.)

Were QI eliminated, you can bet the bulk of cases would be deep-pockets corporate interests suing individual government officials, not the kind of law enforcement issues that most of the media attention on QI focuses on.

> Were QI eliminated, you can bet the bulk of cases would be deep-pockets corporate interests suing individual government officials

See: https://www.latimes.com/archives/la-xpm-1991-08-13-mn-861-st...

American Law, a PHP fractal

I don’t understand all the details. I do understand that when you specifically hire someone to do something that has inherent risk of bad things happening to people ...

There seems like there should be some mechanism in place to limit or control their exposure to criminal prosecution.

At a certain point it seems like it would be too risky to oneself to do your job, if there are too many ways you can be prosecuted for doing it.

But on a specific level I have no idea.

The idea is that you can sue police officers who violate your Constitutional rights under color of law. Maybe you take a photo of a police officer sleeping on the job, and they take your camera and smash it. They've just violated your Constitutional rights, and you can sue them to recover your damages.

But police arrest a lot of people, and they aren't experts on the law. They will get things wrong frequently. They can't be expected to make the correct call every time, but they also can't do the job if the average officer is regularly sued. So the courts came up with the "reasonable" standard. If the officer took away your Constitutional rights, but it was reasonable for them to think it'd be okay, for example if it was a fuzzy legal area or an obscure point of law (what if there's a split court on whether photography can be prohibited in subways?), then you can't sue them. In effect, you can't sue a police officer for acting like a "reasonable" police officer.

So far so good. Police can keep policing without also being lawyers, but people can still sue police officers who are clearly violating their rights. In theory.

But then in 1982 with Harlow v. Fitzgerald, the Supreme Court had an issue with Nixon's aides and whether they deserved absolute or qualified immunity, and they came up with tests. Although it wasn't the focus of the case, the decision happened to grant that qualified immunity applied to every government official couldn't be personally liable for damage unless they were violating a "clearly established" right.

So now police officers were protected by a different standard than a vague "is it reasonable" test. Now the test becomes "has it been clearly established that this is a right." This isn't awful in theory, but in practice the courts have decided that "clearly established" means "has this exact thing come up before and has a court decided that this is or is not constitutional/legal?" This leads to truly ridiculous scenarios, like a judge saying "okay, sure, there have been cases where we decided that you can't use deadly force against unarmed people fleeing by car, but we haven't decided that this is the case if the car is near a highway, so that hasn't been 'clearly established.'"

Anyway, that's the state of things. There are certainly plenty of scenarios where the previous standards of "reasonable" and "good faith" would seem perfectly legitimate. There are oodles of situations which requires a tricky multi-part test undertaken by a judge, and for such cases, a police officer shouldn't be sued for getting it a bit wrong. So the basic concept isn't fundamentally ridiculous, but the "clearly established" test for qualified immunity is.

Good writeup. Another thing that seems bad about it is that "not being (clearly defined as a right)" isn't the same as "being clearly defined as (not a right)". I know it's the math in me speaking, but that negation seems really important.

It amounts to saying that if the courts haven't clearly established a right, then you effectively don't get access to it, while the constitution (and basic ethics) is pretty clear that rights not being specifically enumerated isn't supposed to be construed as denying those rights.

>But police arrest a lot of people, and they aren't experts on the law. They will get things wrong frequently. They can't be expected to make the correct call every time, but they also can't do the job if the average officer is regularly sued.

That seems so very one sided reasoning when the same logic is not applied to the rest of us. When we interact with police, they get to break the law but we must perfectly follow the law or face charges. There is no equality in that arrangement.

Of course there's no equality to that arrangement. Police officers are just professionals who handle a lot of cases with no skin in the game (except their own safety). If your tax agent doesn't know about some loophole and doesn't save you some money, they are not automatically liable for paying you the difference. If your doctor doesn't know about a brand new life-saving procedure and you die, the doctor is not also killed to make it even. A police officer who arrests you with a reasonable belief that you've done something illegal but who is mistaken due to some complicated detail of case law should not in turn be convicted of false imprisonment.

But the flip side is also true. Just as a doctor can absolutely be arrested for intentionally harming a patient, a police officer who arrests you for clearly wrong reasons should absolutely be sued or prosecuted for their crime. But describing the line between those two cases is hard.

There is a core difference in these. Two really. Consent and violence. A police doing their job is often acting against your consent and invoking violence. Doctors don't. Well cutting you might be violent, but they are sure to get your consent and it is for your well being, to say nothing of the difference in training requirements before a doctor is allowed to touch you with a scalpel. And then they have to carry malpractice insurance while cops do not have to do similar.

When a police officer arrests you, they are doing something to you that in any other situation would be a major crime and it is not done in your best interest. This significantly changes the reasoning and, especially in light of recent events, needs a significant improvement in how it is currently legally treated.

The thing I don't underwstand is that if a judge is willing to cite QI to make an absurd ruling, why wouldn't they just make an absurd ruling without QI?

It's not that they want to cite qualified immunity. It's that they MUST. That's the nature of precedent.

Here's an example. In 2018, a police officer slammed an unarmed man into the ground. Look at the judge's decision: http://graphics.thomsonreuters.com/srepfiles/qualified-immun...

"In so holding, the Court notes that a court can almost always manufacture a factual distinction. For example, here, McGarry was in his kitchen, while York was in a Target parking lot. That kind of factual difference and all of the factual differences listed above should not make a difference in the qualified immunity analysis, but, using Judge -- now Justice -- Gorsuch’s test from Kerns v. Bader, they “might make a constitutional difference,” 663 F.3d at 1187 (emphasis in original), so the Court must conclude that the officer is entitled to qualified immunity. While the Court thinks that a reasonable officer should be able to discern from York that grabbing and throwing an unarmed man to the ground without warning for arguing with a police officer amounts to excessive force, Justice Gorsuch would probably think that the police officer’s Taser threat in York is a fact that might make a difference."

The judge very much wants to NOT grant qualified immunity, but he's up against a wall and is angry about it.

> he judge very much wants to NOT grant qualified immunity,

I don't see that reading. I see quite the opposite. (Court opinions are hard to read, as they often veer into double- and triple-negatives)

I see that paragraph as saying that "this case is meaningfully different -- McGarry was fighting against the officer (vs York was not menacing the officer), and McGarry was very close to the officer at the time of the throwdown.

The footnote is the judge defending himself aginst claims of over-pedantic weasily rules-lawyering. He's saying a judge could make a decision based on irrelevant differences (like kitchen vs parking lot), but following Gorusch, to be fair to plaintiffs, the judge is only considering Constitutionally relevant facts.

QI says that if the officer had no way to know the behavior was illegal, he can't be sued for it. Nothing stops legislature (or executive) from reading a ruling and passing a law (or rule, resp) to clarify.

It's the opposite of "Fuck You, Gorusch".

So that’s legalese for “fuck you, Gorsuch“.

Qualified immunity is actually just protecting from lawsuits. No relation to criminal prosecution.

It seems anti-common law. The common law requires the ability to generate new precedents.

It's what allows cops to speed when chasing a suspect, or run red lights when their sirens are on.

If someone could explain this to me, please do. The wiki [1] on qualified immunity talks about civil action. So US officials (cops among those) are mostly shielded from civil action for their misdeeds and to even a greater degree than the former test that asked whether they legitimately believed they were following the law And acted in good faith. (Which is already a stretch since I don't quite follow how ones understanding of the laws enters the question of having followed it.) So no civil action then.

But isn't the larger differentiator from most other first world countries the way officials are treated regarding the criminal code? I am expecting most countries to have a quite independent prosecuting office that prosecutes both officials and laymen, hopefully to the same degree? (The exception I expect is the military?)

In my locality one of the things I like 'best' is an article in our criminal law that lets a victim ask a judge to reconsider the decision of the prosecution not to press charges. It's one of the final balances in our criminal law.

[1] https://en.m.wikipedia.org/wiki/Qualified_immunity

Qualified immunity is especially hurtful because it is the only recourse left when prosecutors decline to prosecute cases against police, the norm even in Floyd's case (only one out of four killers has been charged). Yes, it would be ideal of prosecutors prosecuted police properly or if we had an independent investigation/prosecutor for such cases but this is never the case, even when officials pretend it is. It's always cops investigating other cops and the same prosecutors that normally work closely with police and have clear conflicts of interest doing the prosecution. Activists want to get rid of qualified immunity because trying to reform the actual criminal investigation and prosecution is impossible. Also, the doctrine changes the actual law to make it the exact opposite of what was intended, effectively rewriting the law into its opposite. The focus on qualified immunity assumes there will be a miscarriage of criminal justice. That's almost always the case.

Which happens in part because the office of attorney general is an elected position. Police are very powerful politically. And for whatever reason, you are seen as "soft on crime" if you attempt to prosecute police for carrying out crimes.

The Federal criminal law analogue of 42 USC 1983 is 18 USC 242 ("deprivation of rights under color of law"). It probably doesn't surprise anyone to hear that referrals to prosecute under 242 have steadily declined over the years, regardless of the party of the administration.

I applaud this.

EDIT: I applaud Justin Amash's proposal to eliminate qualified immunity[1] (Thanks, dang).

One of the scary things about the George Floyd incident is that resisting arrest might have been the better option. That has some pretty dark implications about rule of law.

I understand the impulse of those on the right to give police officers the benefit of the doubt when it comes to what can very often be a dangerous calling, but I think that everyone (including police officers) will be safer if the police can be legally held accountable to a higher standard.

[1] https://news.ycombinator.com/item?id=23379576

I wonder what a bystander can do when they see a police officer doing something like holding a knee on a person's neck for 8 minutes? If you do nothing, Mr. Floyd dies. If you get involved, Mr. Floyd may live but you may be the next person under the knee.

Could a good Samaritan defense for people who interfere with the police in good faith work?

Don't take legal advice from Hacker News, obviously :-)

In Texas[0]:

  (c)  The use of force to resist an arrest or search is justified:
  (1)  if, before the actor offers any resistance, the
  peace officer (or person acting at his direction) uses
  or attempts to use greater force than necessary to make
  the arrest or search;  and
  (2)  when and to the degree the actor reasonably believes
  the force is immediately necessary to protect himself
  against the peace officer's (or other person's) use or
  attempted use of greater force than necessary.

Elsewhere:

  Sec. 9.33.  DEFENSE OF THIRD PERSON.  A person is
  justified in using force or deadly force against
  another to protect a third person if:
  (1)  under the circumstances as the actor reasonably
  believes them to be, the actor would be justified under
  Section 9.31 or 9.32 in using force or deadly force to
  protect himself against the unlawful force or unlawful
  deadly force he reasonably believes to be threatening the
  third person he seeks to protect;  and
  (2)  the actor reasonably believes that his intervention
  is immediately necessary to protect the third person.

Assuming you survive the encounter, it is possible you could prevail on your day in court.

[0] https://statutes.capitol.texas.gov/Docs/PE/htm/PE.9.htm#C

I think that would almost certainly not hold anywhere in the US. You would be charged with resisting arrest, interfering with crime scene etc. There are a crap ton of laws that protect the police.

Call 911. Seriously, get an EMT out there.

"I applaud this" relates to the proposal announced at https://news.ycombinator.com/item?id=23379576. We're going to merge some threads, and I want to include this subthread in the merge since it's on the general topic. But that's an important bit of context not to miss.

An inside look into the operation of the Supreme Court is Bob Woodward and Scott Armstrong's "The Brethren" [1], which covers the years 1969-1975.

There's a surprising amount of persuasion, negotiation, and coalition-building in order to find the votes to grant cert or hold a majority. It's interesting to see how the interpersonal dynamics among the Justices influence decisions.

An example of this is looking for unanimous decisions to send a strong message, whether it is for school desegregation:

> Since 1954, the Court had always been unanimous in school cases, its strong commands to desegregate joined by every member. For fifteen years, the Justices had agreed that it was essential to let the South know that not a single Justice believed in anything less than full desegregation.

or to reject Nixon's executive privilege claims in Watergate [2]:

> The Nixon challenge had to be met in the strongest way possible. An eight-signature opinion would do it [...] The country would benefit from such a show of strength now.

These decisions required significant reconciliation between the original ideas of the Justices. They don't operate in a vacuum of law study. The Muhammad Ali draft dodging case [3] also demonstrates this, where a 4-4 deadlock is turned into a unanimous 8-0 decision centered around a technical error which would not set precedent - the book describes Burger as considering that "it might be interpreted as a racist vote" if he dissented.

Like the link, I am also curious about why these delays have occurred, especially the most recent one. Wildly speculating, maybe the Court does not want to appear too politically activist in this moment; or maybe the members are trying to find consensus for their preferred outcome before granting cert at all. One other option, though I hope it's not this one:

> [Stevens] said, it was "pointless" to grant cert only to have the majority reaffirm its well-known view [regarding Liles v Oregon, an obscenity case].

[1] https://en.wikipedia.org/wiki/The_Brethren_(Woodward_and_Arm...

[2] https://en.wikipedia.org/wiki/United_States_v._Nixon

[3] https://en.wikipedia.org/wiki/Clay_v._United_States#Opinion_...

This[1] article helped me get a good understanding of the actual tests that the courts are applying:

1. The court considers whether police used excessive force in violation of the Fourth Amendment to the U.S. Constitution. If yes, the court moves to part two of the test. If no, qualified immunity is immediately granted.

2. The court determines whether police should have known their actions violated the Constitution because court precedent clearly established their conduct as unlawful. If yes, the case goes to trial. If no, qualified immunity is granted.

Cases need nearly identical circumstances and in the same court jurisdiction for precedent to be "clearly established". Most cases are dismissed outright so that new precedent is never established, which leads what's "clearly established" being frozen in time.

[1] https://www.reuters.com/investigates/special-report/usa-poli...

I'm not sure it's that simple. Or, Qualified Immunity is just one aspect of why cops are not prosecutable.

One reason is the close relationship between police and the judiciary. Both work closely together and need to preserve that relationship for various career and practical reasons. In theory a branch is designed to act as a check against another branch, in reality, this is not the case in our justice system.

Another reason is US voters. We vote "hard on crime" people into office and then are surprised when they give Police complete immunity. If we want justice, we've elected the wrong people to give it to us.

It's also not clear if any of this is politically viable. The US is politically farther right compared to Europe and some other countries. Is a more liberal "European style" justice system palatable to US voters? For some, definitely, but overall, I'm not sure if some parts of the US are culturally ready for some of the reforms discussed. There's a lot of "eye for an eye" syndrome here.

I don't have any answers to this, just adding some context.

>Another reason is US voters. We vote "hard on crime" people into office and then are surprised when they give Police complete immunity. If we want justice, we've elected the wrong people to give it to us.

>It's also not clear if any of this is politically viable. The US is politically farther right compared to Europe and some other countries. Is a more liberal "European style" justice system palatable to US voters?

Are we living in the same country? What's "politically viable" varies massively from place to place.

While there are definitely "tough on crime" districts many major cities elect DAs and elect/appoint judges specifically because they make campaign promises to not be tough on certain classes of crime, recommend community service and treatment instead of jail, etc, etc. These are generally not the cities who's cops you see embroiled in excessive force controversies but they are by no means free of problems with their police forces use of violence.

Surely prosecuting a police officer for doing crimes IS being hard on crime, though?

> the senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐ zero accountability for law enforcement.

So true. We need reform of how abuses by law enforcement are handled. Many things could be done besides and in addition to relaxing qualified immunity. For example: send all cases to the States' Attorneys General rather than to the local district attorneys -- district attorneys have to work closely with police, so they have social barriers to effectively policing the police. Another thing is that being placed on desk duty or off duty with pay is abusive when it turns out the behavior was a fireable offense or criminal, so the officer should have to pay back that pay or simply not get it to begin with. Another thing is that police need to be trained in stepping in to their partner's business and halt brutality (preferably before it crosses the line) -- again, there are social problems here -the blue wall- that make this difficult, so maybe, too, change partners often.

Also, normally, when someone gets charged with a crime, the Speedy Trial clock begins running immediately (or at arraignment), so it's unwise to charge persons before the State is ready to try the case, and filing charges only to later drop them due to being baseless in retrospect is problematic, but perhaps for LEO there could be a notice of intent to charge whose purpose is to signal to the public that the State intends to charge the LEO if they can find enough evidence to go to trial with.

We need to get serious about dealing with police brutality and the system's inability to deal with it effectively. Preferably we should not overshoot and render the police vulnerable, but I think we can avoid that problem.

There also needs to be a registry of officers fired for cause. There is a long and sordid history of cops finally crossing one line too many, only to get the same job two towns over and repeat the process.

Is there ever an instance of power being taken away from armed groups like police or military, in any country? I think it's very easy to grant power, and very hard to revoke. Also, what happens if the police departments refuse to accept the decision. I am not kidding, I read that there was a strike by San Francisco police in 1975 where the police refused to follow court orders and declared them "illegal".

> s there ever an instance of power being taken away from armed groups like police or military, in any country?

I struggle to understand this. Isn't this what an election does? One administration controls the military, then another one does. So... the US, every 4 years?

I feel like this comment romanticize "power" in a common (yet, to me, very odd) way. We take power away from police officers all the time: "desk duty". As a group, we give power to the national guard ("mobilize") and take it away ("demobilize") all the time. I understand that police have a lot of political will behind them, but why is this problem all of a sudden a fundamental dynamic of power rather than a policy choice we as society continue to make?

Probably not a great example, but in the early 1930s, the Texas Rangers and State Police publicly backed the wrong candidate for governor and 'Ma' Ferguson fired all the former and disbanded the latter. That's why Texas has a "Department of Public Safety" rather than state police.

Not exactly the proudest moment, but with public support it works.

Source: my Texas history class. Wikipedia is totally silent and most other sources seem sketchy.

My understanding is that ending qualified immunity would open police officers up to lawsuits around their use of force that they’re currently exempt from today. So, officers risk significant financial damage by choosing to ignore this change if it becomes law.

Tunisia after the revolution. Their resolution was to not enforce laws until they have an immunity law. You can blockade most of the roads here today and the police forces will not show up. Or just show up to try to negotiate with the protesters and convince them otherwise.

And in case you are wondering, it made most of the country into chaos because while most of the citizens are going their way there are people who will seek trouble.

There must, certainly, be a middle ground. But government do enjoy a strong police force that they can use at will.

All of history is a slow march towards more equably distributed power. At least after the initial consolidation of power in, for example, the Roman Empire.

Specifically as to the military: My country's military went from worst-of-history to has-50-helicopters-but-none-that-fly in two big steps: First losing a hot war, then winning a cold one.

Plenty of countries have drastically reduced military spending after the Cold War ended. European police has also mostly avoided US-style militarisation. The UK Police used to hang petty criminals every second Tuesday. Nowadays, they don't even carry guns anymore.

At one point, public order enforcement in the UK was carried out by the army, who were not above making cavalry charges against peaceful protesters:

https://en.wikipedia.org/wiki/Peterloo_Massacre

That power has been taken away from the army in the UK. It now lies with the police, who, er, well at least they don't have swords:

https://en.wikipedia.org/wiki/Battle_of_Orgreave

The San Francisco vigilance committee voluntarily disbanded after they overthrew the local government:

https://www.legendsofamerica.com/sanfrancisco-vigilantes/

The federal courts eventually upheld the vigilance committee’s actions.

> Is there ever an instance of power being taken away from armed groups like police or military, in any country?

Sure. Most countries didn’t have an independent police complaints body a century ago. Now most (developed) do. And many countries require body cams these days, of course.

With the Posse Comitatus Act, the Federal Government limited its ability to use the military as a domestic police force. The Insurrection Act limited how the President could deploy military domestically as well.

Magna Carta? US Declaration of Independence?

This article explains the issue in more detail: https://news.ycombinator.com/item?id=23360295

That NYT article and more is linked to from a link in the submitted article.

https://www.cato.org/blog/wake-george-floyds-death-all-eyes-...

Thank you very much. I was going to ask for recommendations for where I could get a good backgrounder on this issue

OK but agencies, such as local PDs and governments, still need to be on the hook financially at a minimum.

We absolutely need criminal accountability for individuals, but damages need to be paid out from real coffers and not just assigned to judgement proof + un-hirable individuals.

Will this simply push all responsibility onto the agent?

Make cops carry liability insurance. Like car insurance. Make every wrongful death or civil rights violation payable by the insured NOT the tax payer.

If the whole "few bad apples" argument is valid, then the premiums will stay low.

Like car insurance, an officer's premium will go up and insurability will go down with continued claims.

This will root out the bad apples and protect local budgets.

Arguments have been made that this will cause cops to second-guess themselves in the line of duty. They'll think "how will this effect my premium". Welp, they should already been considering whether their actions violate an individual's civil rights. This just shifts the liability from the tax payer to the perpetrator.

Back in the day police departments used to do psychological screening on candidates as part of the hiring process. I've heard that many departments no longer do so under pressure from the police unions. I wonder how many of the extremely brutal cops would have been caught by this type of screening?

I've read police unions are way different from other types of unions, but in a "bad way". I read the IUPA wiki, but I'm wondering if anyone with experience has an insider's take

I was on a thread with a cop in Nashville who was feeling hurt about all cops being painted with a negative brush, then I brought up how bad unions are and he literally asked me if I was in law enforcement... he then went off on how bad unions are.

Police unions are immoral institutions at this point. Between unions, qualified immunity and the DA PD conflict of interest there is literally no garbage collection for cops.

The whole immune system apparatus is gone. Each of those three pieces need to be clawed back, too many perverse incentives and too much on the line for an individual cop to report or antagonize a psycho coworker.

Another project fighting qualified immunity: https://ij.org/issues/private-property/project-on-immunity-a...

One night I was dispatched to a fare in an area known to not be especially prosperous. I was trying to read numbers on houses, then I saw flashing red and blue lights ahead and knew where my prospective passenger would be found.

A police officer was on watch outside; his colleague was inside wrapping things up. The police officer told me the family had called for an intervention. The fire department had already departed, as Grandpa had declined medical assistance.

I asked what the story was. The police officer said simply "probably meth", and pointed out the right to refuse medical care is fundamental. I was supposed to take Grandpa to a motel.

At one point in our interaction, the police officer pointed out that it takes different kinds of cops to work in Scottsdale (for example), where some drunk kid might have a prestigious lawyer as their parent, vs. his ghetto precinct, where it's a point of pride to have 'taken a swing at a cop'.

Eventually Grandpa came out and got in my cab, the two police officers departed... Then grandpa wanted his son's phone number. I started the meter and pulled forward a few feet to where his son was standing. He got the phone number, then a woman appeared... She said they just wanted him to get help, Grandpa said "I just want to get some rest..." "oh, you can rest here..." My passenger's son paid me $6 for the 20 feet, and that was the end of that.

There's a lot of collateral damage in policing... Many other passengers had stories of being pointlessly harmed through their interactions with the police. One white fellow let his medical marijuana card expire. One day he got mouthy with a cop, who searched him and found his non-medical "dangerous illegal drug". My passenger said the search was probably illegal, but his overworked public defender didn't get the charges dismissed. I remember him saying it cost him about $5000.

The modern police officer's job involves, in part, hurting people who don't actually need to be hurt. Qualified immunity allows them to do the full spectrum of their job responsibilities without being hurt themselves. Ending auto-immune drug war, and finding ways to help people who need help, are the actual reforms that policing needs to break it of its destructive tendencies.

I was with you until the last paragraph. I don't think police violence exists because of the drug war; a large percentage of people who become police, and an even larger portion of people who remain police are those who enjoy wielding power over others.

The only way to restrain the power-hungry is to be vigilant and use discipline; police unions and culture have proven very skilled in removing effective oversight. Given the situation, qualified immunity removes the only real restraint on police.

note: I am personally in favor of legalizing all drugs, recreational and medical. That said, I'm not really sure what you mean by 'auto-immune drug war', as the 'war on drugs' doesn't specifically target immuno-suppressants.

It's impossible to know the specifics of your passenger's case, obviously, but claiming things like "the search was probably illegal" is fairly common. Did they provide any reason for the supposedly illegality? A police officer's power to search is a fairly well trodden part of the law.

I feel like we are conflating a civil issue (qualified immunity) with criminal issues like murder.

I would say that the moral hazard introduced by qualified immunity increases the likelihood that criminal violations will also occur.

Weeding out the officers that would commit infractions that result in civil suits will probably also weed out those that would actual commit a more serious crime.

Libertarian talking-points ahead. Charles Koch Foundation = Cato Institute = climate change deniers (remember the fake IPCC-look-alike propaganda "addendum"?[0])

0. https://external-content.duckduckgo.com/iu/?u=https%3A%2F%2F...

https://www.climatecentral.org/news/cato-addendum-tries-to-u...

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