22 ms·

As Qualified Immunity Takes Center Stage, More Delay from SCOTUS

369 points by mnm1 6y ago

billme 6y ago
This article explains the issue in more detail: https://news.ycombinator.com/item?id=23360295 https://news.ycombinator.com/item?id=23360295
- najarvg 6y ago
  Thank you very much. I was going to ask for recommendations for where I could get a good backgrounder on this issue
- emmelaich 6y ago
  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-turn-scotus https://www.cato.org/blog/wake-george-floyds-death-all-eyes-...
typenil 6y ago
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?
- tialaramex 6y ago
  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.
  - Matticus_Rex 6y ago
    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/molyneux_goes_full_potato_claims_that_selling/cnb0ubd/ https://www.reddit.com/r/Anarcho_Capitalism/comments/2qv6o0/...
  - jandrese 6y ago
    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.
    - tehwebguy 6y ago
      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?
      - Ericson2314 6y ago
        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
        SamReidHughes 6y ago
        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
- throwaway894345 6y ago
  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.
  - deleted 6y ago
    [deleted]
  - Darkphibre 6y ago
    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 https://www.nature.com/articles/d41586-019-02601-9
  - fellowniusmonk 6y ago
    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/leo16_fryer.pdf https://law.yale.edu/sites/default/files/area/workshop/leo/l...
- deleted 6y ago
  [deleted]
- at-fates-hands 6y ago
  >> 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.
- pstuart 6y ago
  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.
wjnc 6y ago
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 https://en.m.wikipedia.org/wiki/Qualified_immunity
- mnm1 6y ago
  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.
  - bcrosby95 6y ago
    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.
commandlinefan 6y ago
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"?
- nickff 6y ago
  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.
  - TeMPOraL 6y ago
    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?
- whiddershins 6y ago
  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.
- deleted 6y ago
  [deleted]
- BurningFrog 6y ago
Shivetya 6y ago
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/illinois-100000-club-94000-six-figure-public-employees-and-retirees-cost-taxpayers-12b/#2b4fac0481a4 https://www.forbes.com/sites/adamandrzejewski/2018/10/26/ill... [1] https://www.nytimes.com/2020/04/02/business/dealbook/coronavirus-public-pension.html https://www.nytimes.com/2020/04/02/business/dealbook/coronav... [2] https://www.chicagobusiness.com/html-page/848696 https://www.chicagobusiness.com/html-page/848696 [3] https://www.chicagobusiness.com/greg-hinz-politics/pritzker-pension-team-looks-savings-finds-costly-threats-instead https://www.chicagobusiness.com/greg-hinz-politics/pritzker-... [4] https://www.heritage.org/jobs-and-labor/commentary/public-health-crisis-no-time-private-pension-bailouts https://www.heritage.org/jobs-and-labor/commentary/public-he... [5] https://www.ai-cio.com/news/10-billion-illinois-pension-bailout-request-ignites-controversy/ https://www.ai-cio.com/news/10-billion-illinois-pension-bail...
- aspenmayer 6y ago
  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.
taxicabjesus 6y ago
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.
- nickff 6y ago
  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.
jorblumesea 6y ago
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.
- throwaway0a5e 6y ago
  >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.
  - jorblumesea 6y ago
    > Are we living in the same country? Overall, the US is entirely to the right of many other places. So even the more liberal places are still "tough on crime". I'm not sure comprehensive reforms will be accepted even in moderate places. > What's "politically viable" varies massively from place to place. That's exactly my point. So having any kind of national or federal reform is impossible because Americans cannot agree on anything. Reform from the federal system is needed but any kind of sweeping reform at a nationwide level is impossible.
BurningFrog 6y ago
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-finally-decide-whether-hear-cases-calling-abolition-qualified 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.”
- abduhl 6y ago
  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.
  - heraclius 6y ago
    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.)
enitihas 6y ago
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".
- save_ferris 6y ago
  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.
  - AtHeartEngineer 6y ago
    There has been proposals to have something similar to malpractice insurance, where cops that get sued a lot will have higher rates and will likely be kicked off the force, and good cops would bring the rates down.
- tsomctl 6y ago
  Magna Carta? US Declaration of Independence?
- mcguire 6y ago
  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.
- twic 6y ago
  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 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 https://en.wikipedia.org/wiki/Battle_of_Orgreave
tehwebguy 6y ago
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?
jeffdavis 6y ago
I feel like we are conflating a civil issue (qualified immunity) with criminal issues like murder.
- lliamander 6y ago
  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.
  - gowld 6y ago
    Hmm? The civil suits are for filed for serious crimes.
    - ncallaway 6y ago
      What they are saying is officer's that kill someone often have a pattern of bad (and sometimes escalating) behavior. If one of the 18 use of force complaints against Chauvin had also resulted in a civil lawsuit that found Chauvin liable, he might have been removed from the force earlier. That's one theory at least—I think it's a reasonable one. I don't think removing QI from police officers should be the end-state of reform, but I think it's a necessary step and a good one.
    - lliamander 6y ago
      I was supposing that civil suits might be filed for actions that would not otherwise be prosecuted under criminal proceedings. If it is easier to hold the police accountable in these small issues, then it may not be as necessary for larger issues. But you are right that civil suits can also be filed for serious crimes.
    - hedora 6y ago
      Right, but there probably won’t be any criminal charges if a police officer: - steals $200K from you - has their attack dog bite you you while your calmly sitting down and handcuffed - serve a warrant for someone they already have in custody by breaking down your door in plainclothes without announcing themselves and then shoot your girlfriend eight times. (These are all real cases from this year, where the courts rules there was not grounds to sue because of qualified immunity) Now, you can at least sue them for such actions. I suspect the damages will be paid for by an insurance policy taxpayers paid for. Still, it is better than the current situation. At least such officers will be a financial liability for their departments.
zaltekk 6y ago
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-police-immunity-scotus/ https://www.reuters.com/investigates/special-report/usa-poli...
lliamander 6y ago
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 https://news.ycombinator.com/item?id=23379576
- criddell 6y ago
  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?
  - lliamander 6y ago
    Call 911. Seriously, get an EMT out there.
  - clarkmoody 6y ago
    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 https://statutes.capitol.texas.gov/Docs/PE/htm/PE.9.htm#C
bobbiechen 6y ago
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_Armstrong_book) https://en.wikipedia.org/wiki/The_Brethren_(Woodward_and_Arm... [2] https://en.wikipedia.org/wiki/United_States_v._Nixon https://en.wikipedia.org/wiki/United_States_v._Nixon [3] https://en.wikipedia.org/wiki/Clay_v._United_States#Opinion_of_the_Court https://en.wikipedia.org/wiki/Clay_v._United_States#Opinion_...
vondur 6y ago
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?
- fellowniusmonk 6y ago
  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.
- umvi 6y ago
  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
sbuttgereit 6y ago
Another project fighting qualified immunity: https://ij.org/issues/private-property/project-on-immunity-and-accountability/ https://ij.org/issues/private-property/project-on-immunity-a...
cryptonector 6y ago
> 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.
- ashtonkem 6y ago
  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.
huntermeyer 6y ago
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.
rowawey 6y ago
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%2Ftse3.mm.bing.net%2Fth%3Fid%3DOIP.b7Ri33IeiCYXz2PRcgOzPQE3DI%26pid%3DApi&f=1 https://external-content.duckduckgo.com/iu/?u=https%3A%2F%2F... https://www.climatecentral.org/news/cato-addendum-tries-to-undo-federal-climate-report-15143 https://www.climatecentral.org/news/cato-addendum-tries-to-u...

369 points by mnm1 6y ago

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

najarvg 6y ago
Thank you very much. I was going to ask for recommendations for where I could get a good backgrounder on this issue
emmelaich 6y ago
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-turn-scotus https://www.cato.org/blog/wake-george-floyds-death-all-eyes-...

typenil 6y ago

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?

tialaramex 6y ago
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.
- Matticus_Rex 6y ago
  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/molyneux_goes_full_potato_claims_that_selling/cnb0ubd/ https://www.reddit.com/r/Anarcho_Capitalism/comments/2qv6o0/...
- jandrese 6y ago
  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.
  - tehwebguy 6y ago
    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?
    - Ericson2314 6y ago
      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
      - SamReidHughes 6y ago
        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
throwaway894345 6y ago
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.
- deleted 6y ago
  [deleted]
- Darkphibre 6y ago
  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 https://www.nature.com/articles/d41586-019-02601-9
- fellowniusmonk 6y ago
  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/leo16_fryer.pdf https://law.yale.edu/sites/default/files/area/workshop/leo/l...
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at-fates-hands 6y ago
>> 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.
pstuart 6y ago
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.

wjnc 6y ago

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 https://en.m.wikipedia.org/wiki/Qualified_immunity

mnm1 6y ago
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.
- bcrosby95 6y ago
  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.

commandlinefan 6y ago

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"?

nickff 6y ago
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.
- TeMPOraL 6y ago
  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?
whiddershins 6y ago
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.
deleted 6y ago
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BurningFrog 6y ago

Shivetya 6y ago

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/illinois-100000-club-94000-six-figure-public-employees-and-retirees-cost-taxpayers-12b/#2b4fac0481a4 https://www.forbes.com/sites/adamandrzejewski/2018/10/26/ill... [1] https://www.nytimes.com/2020/04/02/business/dealbook/coronavirus-public-pension.html https://www.nytimes.com/2020/04/02/business/dealbook/coronav... [2] https://www.chicagobusiness.com/html-page/848696 https://www.chicagobusiness.com/html-page/848696 [3] https://www.chicagobusiness.com/greg-hinz-politics/pritzker-pension-team-looks-savings-finds-costly-threats-instead https://www.chicagobusiness.com/greg-hinz-politics/pritzker-... [4] https://www.heritage.org/jobs-and-labor/commentary/public-health-crisis-no-time-private-pension-bailouts https://www.heritage.org/jobs-and-labor/commentary/public-he... [5] https://www.ai-cio.com/news/10-billion-illinois-pension-bailout-request-ignites-controversy/ https://www.ai-cio.com/news/10-billion-illinois-pension-bail...

aspenmayer 6y ago
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.

taxicabjesus 6y ago

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.

nickff 6y ago
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.

jorblumesea 6y ago

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.

throwaway0a5e 6y ago
>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.
- jorblumesea 6y ago
  > Are we living in the same country? Overall, the US is entirely to the right of many other places. So even the more liberal places are still "tough on crime". I'm not sure comprehensive reforms will be accepted even in moderate places. > What's "politically viable" varies massively from place to place. That's exactly my point. So having any kind of national or federal reform is impossible because Americans cannot agree on anything. Reform from the federal system is needed but any kind of sweeping reform at a nationwide level is impossible.

BurningFrog 6y ago

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-finally-decide-whether-hear-cases-calling-abolition-qualified 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.”

abduhl 6y ago
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.
- heraclius 6y ago
  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.)

enitihas 6y ago

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".

save_ferris 6y ago
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.
- AtHeartEngineer 6y ago
  There has been proposals to have something similar to malpractice insurance, where cops that get sued a lot will have higher rates and will likely be kicked off the force, and good cops would bring the rates down.
tsomctl 6y ago
Magna Carta? US Declaration of Independence?
mcguire 6y ago
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.
twic 6y ago
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 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 https://en.wikipedia.org/wiki/Battle_of_Orgreave

tehwebguy 6y ago

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?

jeffdavis 6y ago

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

lliamander 6y ago
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.
- gowld 6y ago
  Hmm? The civil suits are for filed for serious crimes.
  - ncallaway 6y ago
    What they are saying is officer's that kill someone often have a pattern of bad (and sometimes escalating) behavior. If one of the 18 use of force complaints against Chauvin had also resulted in a civil lawsuit that found Chauvin liable, he might have been removed from the force earlier. That's one theory at least—I think it's a reasonable one. I don't think removing QI from police officers should be the end-state of reform, but I think it's a necessary step and a good one.
  - lliamander 6y ago
    I was supposing that civil suits might be filed for actions that would not otherwise be prosecuted under criminal proceedings. If it is easier to hold the police accountable in these small issues, then it may not be as necessary for larger issues. But you are right that civil suits can also be filed for serious crimes.
  - hedora 6y ago
    Right, but there probably won’t be any criminal charges if a police officer: - steals $200K from you - has their attack dog bite you you while your calmly sitting down and handcuffed - serve a warrant for someone they already have in custody by breaking down your door in plainclothes without announcing themselves and then shoot your girlfriend eight times. (These are all real cases from this year, where the courts rules there was not grounds to sue because of qualified immunity) Now, you can at least sue them for such actions. I suspect the damages will be paid for by an insurance policy taxpayers paid for. Still, it is better than the current situation. At least such officers will be a financial liability for their departments.

zaltekk 6y ago

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-police-immunity-scotus/ https://www.reuters.com/investigates/special-report/usa-poli...

lliamander 6y ago

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

criddell 6y ago
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?
- lliamander 6y ago
  Call 911. Seriously, get an EMT out there.
- clarkmoody 6y ago
  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 https://statutes.capitol.texas.gov/Docs/PE/htm/PE.9.htm#C

bobbiechen 6y ago

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_Armstrong_book) https://en.wikipedia.org/wiki/The_Brethren_(Woodward_and_Arm... [2] https://en.wikipedia.org/wiki/United_States_v._Nixon https://en.wikipedia.org/wiki/United_States_v._Nixon [3] https://en.wikipedia.org/wiki/Clay_v._United_States#Opinion_of_the_Court https://en.wikipedia.org/wiki/Clay_v._United_States#Opinion_...

vondur 6y ago

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?

fellowniusmonk 6y ago
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.
umvi 6y ago
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

sbuttgereit 6y ago

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

cryptonector 6y ago

> 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.

ashtonkem 6y ago
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.

huntermeyer 6y ago

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.

rowawey 6y ago

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%2Ftse3.mm.bing.net%2Fth%3Fid%3DOIP.b7Ri33IeiCYXz2PRcgOzPQE3DI%26pid%3DApi&f=1 https://external-content.duckduckgo.com/iu/?u=https%3A%2F%2F... https://www.climatecentral.org/news/cato-addendum-tries-to-undo-federal-climate-report-15143 https://www.climatecentral.org/news/cato-addendum-tries-to-u...