13 ms·

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 e

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
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-to-end-qualified-immunity-and-prevent-cases-like-george-floyds/ https://reason.com/2020/05/29/the-supreme-court-has-a-chance...
- AdmiralAsshat 6y ago
  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.
  - klyrs 6y ago
    Roberts seems to be taking his tie-breaker role very seriously, and aside from certain [censored]* dictators, politicians do seem to be taking the present situation seriously. Strengthening QI right now would be metaphorical gasoline for the literal fires burning in our cities. I wouldn't make a bet in either direction right now. *[edited for political correctness, I'm so sorry that people were offended by my low-brow swipe at the world's most influential racebaiter and / or I'm sorry to besmirch the good name of your favorite cheesy-corn snack]
    - gowld 6y ago
      Comment works a lot better without the cheetoh part.
      - csours 6y ago
        So do governments.
  - tathougies 6y ago
    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.
gamblor956 6y ago
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.
- jstanley 6y ago
  > 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?
  - _bxg1 6y ago
    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.
    - nickff 6y ago
      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.
bgentry 6y ago
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 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/ https://theappeal.org/qualified-immunity-explained/ IANAL.
- gowld 6y ago
  > 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?
  - alasdair_ 6y ago
    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.
dsl 6y ago
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.
- _bxg1 6y ago
  > 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.
  - londons_explore 6y ago
    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.
    - _bxg1 6y ago
      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.
graeme 6y ago
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.
quickpost123 6y ago
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.
- egillie 6y ago
  Why would anyone be a second-mover if the first-mover lost the case? There's still no precedent to build off of.
  - quickpost123 6y ago
    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.
    - alasdair_ 6y ago
      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.
    - egillie 6y ago
      I didn't know courts had that option - thank you!
apoverton 6y ago
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 https://en.wikipedia.org/wiki/Dred_Scott
- nickff 6y ago
  There is a difference between law and legislation; qualified immunity is law, but not legislation (that I know of).
  - apoverton 6y ago
    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.
    - nickff 6y ago
      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.
CobrastanJorji 6y ago
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.
- gowld 6y ago
x86_64Ubuntu 6y ago
>..., 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.
ebg13 6y ago
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?
dragonwriter 6y ago
> 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.
- alasdair_ 6y ago
  > 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-story.html https://www.latimes.com/archives/la-xpm-1991-08-13-mn-861-st...
- jacobush 6y ago
  American Law, a PHP fractal
MrStonedOne 6y ago
It's what allows cops to speed when chasing a suspect, or run red lights when their sirens are on.

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

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-to-end-qualified-immunity-and-prevent-cases-like-george-floyds/ https://reason.com/2020/05/29/the-supreme-court-has-a-chance...

AdmiralAsshat 6y ago
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.
- klyrs 6y ago
  Roberts seems to be taking his tie-breaker role very seriously, and aside from certain [censored]* dictators, politicians do seem to be taking the present situation seriously. Strengthening QI right now would be metaphorical gasoline for the literal fires burning in our cities. I wouldn't make a bet in either direction right now. *[edited for political correctness, I'm so sorry that people were offended by my low-brow swipe at the world's most influential racebaiter and / or I'm sorry to besmirch the good name of your favorite cheesy-corn snack]
  - gowld 6y ago
    Comment works a lot better without the cheetoh part.
    - csours 6y ago
      So do governments.
- tathougies 6y ago
  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.

gamblor956 6y ago

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.

jstanley 6y ago
> 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?
- _bxg1 6y ago
  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.
  - nickff 6y ago
    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.

bgentry 6y ago

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

gowld 6y ago
> 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?
- alasdair_ 6y ago
  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.

dsl 6y ago

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.

_bxg1 6y ago
> 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.
- londons_explore 6y ago
  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.
  - _bxg1 6y ago
    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.

graeme 6y ago

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.

quickpost123 6y ago

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.

egillie 6y ago
Why would anyone be a second-mover if the first-mover lost the case? There's still no precedent to build off of.
- quickpost123 6y ago
  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.
  - alasdair_ 6y ago
    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.
  - egillie 6y ago
    I didn't know courts had that option - thank you!

apoverton 6y ago

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

nickff 6y ago
There is a difference between law and legislation; qualified immunity is law, but not legislation (that I know of).
- apoverton 6y ago
  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.
  - nickff 6y ago
    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.

CobrastanJorji 6y ago

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.

gowld 6y ago

x86_64Ubuntu 6y ago

>..., 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.

ebg13 6y ago

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?

dragonwriter 6y ago

> 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.

alasdair_ 6y ago
> 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-story.html https://www.latimes.com/archives/la-xpm-1991-08-13-mn-861-st...
jacobush 6y ago
American Law, a PHP fractal

MrStonedOne 6y ago

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