Qualified Immunity: Explained
theappeal.org
theappeal.org
Ordinary people ... are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.
Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year. In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law.”
Granted, their resources are far more limited than all profit-seeking civil attorneys.
“However, that justification ignores the reality that such costs are virtually always paid by the officer’s municipality, insurance, or unions. A study of more than 80 state and local law enforcement agencies across the country found that in instances of misconduct—including those involving truly egregious, clear-cut abuses of authority—individual officers almost never paid such costs.”
By all means QI should be overturned by statute so victims can be compensated, but 1983 is not a mechanism for holding officers accountable. For that we need pare way back civil service and collective bargaining based barriers to imposing consequences on mal- and misfeasant officers.
Gangs keep supporting their own until you harm the gang.
Police should be self-insured, backed by their pension plan. Without real incentive to change, there is no change.
Are the pensions controlled by the police unions?
No clue on how their pensions are run, my comments are of the armchair variety. All I know is that the system is broken and money is the key lever in the system.
The department pays into the pension for the employee if I have my facts straight. Some cities have gone bankrupt because they chose not to do this.
Police unions largely exist for setting the employment contracts, lobbying (err “bribing” if you aren’t in the US) legislators for favorable legislation language, and to assist union members if they get into administrative problems (like being caught on camera killing an unarmed civilian) or if they are disabled/killed.
This wouldn't be too different from a medical professional being required to have malpractice insurance.
Police officers abusing authority, recklessly endangering the lives of others, and committing acts violence against citizens creates a chilling effect even more harmful than the suffering the citizens first endured. Money does not need to come into play here. Arrest, charge, and put them in jail for their crimes against society.
Up and up throwing people in jail would be vastly more effective.
The other issue, the issue that's on everyone's mind this week, is criminal cases. Police don't avoid prison or criminal cases because of qualified immunity, but because they are not charged in the first place.
Let's put it like this: if you came into your office one morning and the guys in the cubicles next to you are shooting up black tar heroin (and no one acts like they're doing anything wrong), does the problem lie with the individuals or with the corporation?
It's eminently possible for anyone to go around tasing anyone else. Law enforcement fundamentally relies on post-facto punishment. Most people don't tase pregnant women due to a sense of common decency, but most of the remaining don't do so because of the threat of punishment. When you remove the threat of punishment, it allows the deviant group to act out their desires with literal impunity.
Structural issues which create gangs need to be addressed, and it's true that convicting the gang members might detract from the need for those structural reform, but enforcing laws is still a part of the incentive system we have to encourage people to not break the law.
We should fix structural issues, but that doesn't mean we need to leave clear bugs in tact to increase pressure on fixing those issues.
QI seems like the bandaid. If you don’t push hostile policing, maybe you don’t get hostile police.
I suspect that policing practices became hostile first and QI is the legal loophole to get away with it. If you eliminate it the “system” will find another way to do it. “Active” policing is a lot of “cleaning up the neighborhood” and “maintaining property value”. As long is that is the part of the goal there will be away to protect police.
https://en.m.wikipedia.org/wiki/Prosecutorial_immunity
>Firming up what had long been held as common practice, the U.S. Supreme Court in 1976 ruled in Imbler v. Pachtman that prosecutors cannot face civil lawsuits for prosecutorial abuses, no matter how severe
What other job exists on the face of the planet where there's such a strong guarantee and therefore so much moral hazard?
It's easy to see that each example in the article involved improper conduct that hopefully violated state law. State law decisions in each case hopefully would have been easy(ier). Constitutional law, on the other hand, sometimes is hard-- especially when there isn't a decision directly on point.
So, we get qualified immunity, where judges decline to allow the tail of (potential) attorneys fee recovery wag the dog of constitutional law challenges that involve complicated issues of both fact and law. No one loves litigation about attorneys fees except lawyers, and that's key insight in understanding the law of qualified immunity.
An alternate solution would be to adjust the incentives that litigants have to bring Section 1983 challenges in the first place-- possibly by making attorneys fees more generally available to litigants-- so that they reserve Section 1983 claims for those cases where they are truly decisive.
Edit: The article does talk about attorneys fees briefly, I corrected my comment. Thanks.
Perhaps you should go back and read the article again -- it absolutely does discuss this.
It just works :^)
https://www.themarshallproject.org/2018/03/13/let-s-put-an-e...
This feels incredibly important to have fixed.
- call your legislators / senators / city officials -- sure, but can I do more than a call? - What is the form of a bill/law that I can get behind? How does such a process start and finish? I would donate $$$ right now to any organization with a clear plan to overturn this.