End Brutalizer Cops' Stay-Out-Of-Jail Card, "Qualified Immunity"
Ilya Somin writes at Reason:
All too often, police get away with brutal treatment of civilians, particularly poor minorities. The problem is not that police officers are unusually bad people. It's that they have bad incentives, under which they are rarely held accountable for abuses. Those incentives can and should be altered.An important first step would be to get rid of the legal doctrine of "qualified immunity," under which law enforcement officers are immune from suits for violating citizens' constitutional rights unless the officers' actions violate "clearly established" law. The Supreme Court interprets the term "clearly established" so narrowly that officers routinely get away with horrendous abuses merely because no federal court in their area has previously decided a case with essentially identical facts. Recent examples include stealing $225,000 from civilians and shooting a 10 year old boy in the course of an attempt to shoot the family dog (who posed no threat to the officer).
Qualified immunity is not required by the Constitution or even by a federal statute. It is a purely judge-made doctrine made up by the Supreme Court itself in a misguided effort to protect law enforcement officers from excessive litigation.
...Rolling back qualified immunity will not put an end to all police abuse. But it will make it possible to hold police accountable in court for egregious violations of civil rights, which in turn will alter their incentives.
Co-blogger Jonathan Adler rightly warns that state and local governments might respond by indemnifying police officers for the damages they have to pay in such cases. But even if that happens, it would still be a step in the right direction. Indemnification costs money that many local governments will be loathe to pay. They will therefore have an incentive to crack down on abusive officers, particularly repeat offenders who routinely force authorities to pay out large sums to settle claims.
As Adler also explains, empirical research shows that impunity for police abuses is often promoted by police unions. 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.
Rolling back and ending the War on Drugs is a major way to curb police abuses, he notes -- and I strongly agree.
And what happens if the police, afraid of being accused, become unwilling to do anything?
Patrick at June 1, 2020 6:32 AM
Then cops don't get paid and we find some other way to do things. Qualified Immunity as it is practiced today was established in Harlow v. Fitzgerald back in 1982. The doctrine is only 40 years old. So I see little risk in repealing this unconstitutional practice.
Ben at June 1, 2020 6:46 AM
And what happens if the police, afraid of being accused, become unwilling to do anything?
Patrick at June 1, 2020 6:32 AM
Excellent question. We might already be past that point in certain places. The police are not paragons of virtue, but in some cases there is way too much second guessing going on. We need fewer crimes on the books, and a less militaristic mentality.
Isab at June 1, 2020 6:50 AM
Then the police and the city get sued for letting a crime go down. We're putting our police in an impossible situation.
We're expecting way too much of our police officers. We expect them to be psychologists, social workers, legal experts, and paramedics, as well as police officers.
If we remove qualified immunity, then we risk police officers being individually sued after every arrest with claims of brutality, depraved indifference, negligence, etc. The court systems will be clogged with civil suits against individual officers. Eventually, the police will be in the position Patrick asks about, afraid to do anything lest they get individually sued and personally ruined.
Conan the Grammarian at June 1, 2020 7:19 AM
Existing impunity is an important stopgap to prevent nuisance lawsuits.
Look at any episode of LivePD©, and you will see some miscreant utterly convinced that the only reason police bother her is that the cop sought her attention - not the calls by the half-dozen motorists or neighbors appalled by her screaming.
And the scene when they take her phone away is hard to believe. That's obviously a human rights violation. It's her phone!
Radwaste at June 1, 2020 7:23 AM
There has to be some middle ground were a public servant - qualified immunity extends to many government employees - is protected when doing their job correctly, and exposed to personal liability when doing their job outside the letter of the law.
If they're not personally liable, they have incentive to abuse their power. Because they can. And if some peon wins a lawsuit against the agency? so what, the tax payers will pay for that, too. And the miscreant will likely keep their job.
Then the police and the city get sued for letting a crime go down.
Oh, that won't happen. Remember, to protect and serve is a great PR slogan. It means to protect and serve the police. They have no duty to respond. Sure, you can file a lawsuit, but your chances of winning? you're better off buying lottery tickets.
I R A Darth Aggie at June 1, 2020 7:31 AM
I believe that's already happening. Otherwise the protests happening these days wouldn't have been filled with looting and burning.
Sixclaws at June 1, 2020 8:12 AM
> Then the police and the city
> get sued for letting a crime
> go down.
Exactly, and I wish more people could take this view of things.
There will always be citizens who vote for politicians promising to write more laws onto the books, no matter how gratuitously —
The guy on the street seems to have no comprehension of the thicket of torts and liabilities which surrounds and protects him every second of every day. That guy is more likely to imagine a paradise of living on the edge of the western frontier in the early 19th century… When you were infinitely more likely to be engaged in a crippling, pointless legal proceeding with your neighbors than you are today. The corpus of American case law & precedent is the envy of the Cosmos, let alone of the other nations on our moist little planet.Read 'em and cry your eyes out.
Crid at June 1, 2020 8:35 AM
The guy they took out will be the same guy who, while walking down that street two years from now with a date, will look at that very sidewalk and bemoan the decline of the city.
Conan the Grammarian at June 1, 2020 8:58 AM
https://pjmedia.com/instapundit/376925/
I R A Darth Aggie at June 1, 2020 9:04 AM
For those in support of the current judicially imposed version of qualified immunity, I suspect you don't understand how this is currently enforced.
Prior to Harlow v. Fitzgerald qualified immunity for public officials applied only if
1. The official believed in good faith that his conduct was lawful.
and
2. The conduct was objectively reasonable.
Well, there is no simple test for knowing what is going on in someone's head. So for the most part such cases went to trial. Let the jury sort things out and such. In Harlow v. Fitzgerald the Supreme Court opined that such cases "[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office". So they changed the requirements to better protect public officials. Now courts more or less require precedent in order to break 'qualified immunity'.
So from a legal stand point there are two issues with the current practice.
1. There is no federal statute granting qualified immunity.Courts have just granted it as a matter of practice. (There are state statutes.)
2. Current 'qualified immunity' is not very qualified. Which opens it up to abuse.
Reverting things back to pre-Harlow days doesn't look like it would cause all the government workers to go on strike. We had plenty of police and fire fighters before 1980.
As for such a reversion preventing the current situation, fat chance of that. We have what looks like a pretty dirty cop who illegally killed a man. Reverting Harlow won't make cops significantly more law abiding. We also have riots that appear to be Antifa astroturf. Debates on qualified immunity isn't likely to make much difference there. So while the current situation raised the debate on how qualified immunity should be practiced it is unlikely any changes would have any preventative effect.
Ben at June 1, 2020 9:05 AM
"Sure, you can file a lawsuit, but your chances of winning? you're better off buying lottery tickets." I R A Darth Aggie
Often the purpose is not to win but to annoy, bog down in red tape, publicize, or delay. It is a common tactic in politics. And as we can see police are very political.
Joe J at June 1, 2020 9:08 AM
Read 'em and cry your eyes out.
I'd cry, but I'm too busy laughing.
https://twitter.com/CrimeADay/status/849788055624011778
I R A Darth Aggie at June 1, 2020 9:10 AM
Democrats love Unions and a big problem is police unions defending vile behavior from their members. Other unions do this as well (teamsters, SEIU--bad teachers end up in a classroom with nothing to do but not fired) but with cops you end up with riots as a result. There is no way that unions should be able to pressure the city to not fire a miscreant. Let them handle salary and working conditions negotiations (if anything).
cc at June 1, 2020 12:18 PM
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