5 ms·

There's nothing wrong with the idea of qualified immunity. A government worker should not be held responsible if they make an honest mistake. Qualified immuni

by parsimo2010 6y ago

There's nothing wrong with the idea of qualified immunity. A government worker should not be held responsible if they make an honest mistake. Qualified immunity already doesn't protect you if you knowingly break the law, and it doesn't protect you if you are clearly incompetent. Qualified immunity only protects you from civil lawsuits. It doesn't protect you from criminal charges. Police officers can be charged with homicide or assault in cases of police brutality without qualified immunity applying. The bigger question of why more cops aren't going to jail has nothing to do with qualified immunity. And holding cops accountable is something any state can do without the Supreme Court. Qualified immunity can prevent the fallback option of suing a cop that isn't charged with a crime. But we're underreaching if we focus on the fallback instead of the primary issue of holding people accountable for crimes.

bgentry 6y ago
Qualified immunity already doesn't protect you if you knowingly break the law, and it doesn't protect you if you are clearly incompetent. If you believe the experts that are well-versed in this area, this is not how it works in practice. The Wikipedia article covers a lot of the controversy around this doctrine: https://en.wikipedia.org/wiki/Qualified_immunity#Objections_and_criticisms https://en.wikipedia.org/wiki/Qualified_immunity#Objections_... Here is an example of a man in Grand Rapids, Michigan, who was brutally assaulted by undercover officers because they believed he was somebody else. Take a look at how difficult it has been for him to get any recourse for a blatantly obvious abuse of power (6 years and counting): https://twitter.com/AaronParseghian/status/1270181815664496640 https://twitter.com/AaronParseghian/status/12701818156644966...
- tick_tock_tick 6y ago
  In practice means DA's aren't doing their job.
  - bgentry 6y ago
    Qualified Immunity is a protection against civil liability. This does not generally involve District Attorneys, whose job is to prosecute criminal cases. The lack of criminal prosecutions is more of an indication that District Attorneys aren't doing their job (or that the reality of their job is that they are disincentivized from prosecuting criminal cops).
- parsimo2010 6y ago
  You're right that there is a problem with how the standard is applied- requiring prior cases with extremely similar facts for precedent is the most dumb sounding thing to me. But the complaint about how qualified immunity is applied doesn't change the bigger issue that those cops in your example beat up someone and were acquitted of assault. This is focusing on how the fallback lawsuit was prevented by qualified immunity instead of the primary issue that those cops should have gone to jail.
  - bgentry 6y ago
    Completely agree! Qualified Immunity only frustrates civil suits and does not impact criminal prosecutions, and IMO it is more important that cops who break the law or take away rights be criminally prosecuted for it. Ending Qualified Immunity only unlocks what should be a last resort for accountability; the larger problems is that cops don't generally face criminal charges or convictions when they violate the law or others' rights.
  - rabidrat 6y ago
    Okay so what would you propose as the mechanism for focusing on that primary issue?
    - parsimo2010 6y ago
      For a start the media should focus on exposing inadequately prosecuted cops that broke the law instead of focusing on qualified immunity after the system already failed. One way to actually fix the problem is external investigation of police complaints and the power to press charges separate from the DA. The vast majority of the time the people investigating a police shooting work in the same building as the shooters, and are often police themselves. Then the DA, which works with the police on most of their cases, ends up being the one that has to prosecute them. These should both be considered conflicts of interest. We need people that aren't friends with the cops to have the power to do something. The investigators should be limited to bringing criminal charges to police that must be tried in court to prevent abuses of their power (otherwise we risk a situation of "who watches the watchmen of the watchmen"). The idea of special prosecutors exists, but for some reason isn't applied to police matters. Police unions are a problem now, but only because they have the power to fight a police chief over employment terms and threaten to strike. They would not be able to fight the prosecutor from an external organization. Let them fight the police chief over administrative actions and discipline for minor violations all they want (that's what unions are for) as long as punishment for crimes is handled by someone else. This is exactly how it works with every other union- they can fight employers on all sorts of matters, but they don't get a say once a member commits a crime, and police unions should be the same. Also, with police matters, a lack of evidence should be viewed as suspicious, and possibly considered as supporting evidence for a complaint. The police should wear cameras but they shouldn't manage the recordings. Body cameras should be allowed to be turned off to deal with sensitive issues, but those occasions should be limited and reviewable. If a cop is about to go talk to a rape victim, then the footage leading up that point should be reviewed. If a body camera was turned off when someone filed a complaint about assault, it should be pretty easy to look at the footage leading up to that point and determine if the camera was turned off for an appropriate reason, or if the cop turned the camera off so they could crack some skulls without being recorded. Excuses like "I forgot to turn my camera back on" can be handled with indicator lights and audible tones or having the camera turn back on after a while. Excuses like "my camera stopped working" can be checked to see if the police officer submitted a service request. None of these issues are controversial. The controversial part is that it costs money to set up an oversight investigation. Usually a politician running with a platform like this is doomed to lose an election because they are talking about raising taxes and they won't have the support of the police union. But if there were ever a time to get this implemented it would be now.
- koheripbal 6y ago
  Without QI, I can't imagine ANYONE would ever sign up to be a police officer. People don't appreciate how many frivolous lawsuits go on currently. Imagine getting sued out of your home because some rich asshole you arrested decided to sue you personally.
  - wahern 6y ago
    > [P]olice officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. https://www.nyulawreview.org/issues/volume-89-number-3/police-indemnification/ https://www.nyulawreview.org/issues/volume-89-number-3/polic...
    - koheripbal 6y ago
      ...and that's good, because that's the point of QI.
loeg 6y ago
> Police officers can be charged with homicide or assault in cases of police brutality without qualified immunity applying. The bigger question of why more cops aren't going to jail has nothing to do with qualified immunity. > But we're underreaching if we focus on the fallback instead of the primary issue of holding people accountable for crimes. This is a false dichotomy; we can want both at the same time.
hwillis 6y ago
> There's nothing wrong with the idea of qualified immunity. A government worker should not be held responsible if they make an honest mistake. This implies that our legal system holds people responsible for honest mistakes. Our legal system is entirely prepared for these situations without qualified immunity. Qualified immunity exists only to shield people from breaking laws.
nokcha 6y ago
The problem isn't qualified immunity per se; the problem is the ‘clearly established law’ doctrine and how it is interpreted exceedingly generously to cops who use excessive force. https://en.wikipedia.org/wiki/Qualified_immunity#:~:text=Criticism%20is%20aimed%20in%20particular,%22clearly%20established%20law%22%20test.&text=This%20doctrine%2C%20invented%20by%20the,violated%20'clearly%20established%20law' https://en.wikipedia.org/wiki/Qualified_immunity#:~:text=Cri....
SkyBelow 6y ago
>There's nothing wrong with the idea of qualified immunity. A government worker should not be held responsible if they make an honest mistake. In a legal system where the average person is held responsible for an honest mistake, I think it is necessary for government agents to be held to the same standard. >Qualified immunity already doesn't protect you if you knowingly break the law Given how prosecutors so often refuse to hold cops accountable, qualified immunity prevents seeking justice through the last remaining system in place. >But we're underreaching if we focus on the fallback instead of the primary issue of holding people accountable for crimes. This is letting perfect become the enemy of better.
- koheripbal 6y ago
  No, this is not accurate. This is like you going to work at Starbucks, spilling coffee on a customer, and then YOU getting sued, rather than Starbucks. Employees are generally shielded from this. If you want to open it up liability against all workers, then that's a major setback for worker rights. If you only want to do this for police officers... well, then that's so unfair, no one is going to become a police officer.
  - ryanlol 6y ago
    What protects the Starbucks employee from getting sued besides their lack of assets?
    - koheripbal 6y ago
      It is a core principle in Tort Law. Employers are the ones responsible for the liability of their employees. https://www.inc.com/articles/1999/11/15396.html https://www.inc.com/articles/1999/11/15396.html So what people are demanding here would set police officers specifically, in a different lesser class than the general public.
      - SkyBelow 6y ago
        In that case it would be a trade off for their increased ability to deploy lethal force or imprison a person. Honestly, I'm thinking the trade off would still be weighted too much in their favor. An alternative is to have it so police have no ability to detail, imprison, or use forced against anyone that you or I also don't have (and this would also extent to rights to be armed in places you or I don't have rights to be armed, and other similar rights).
deleted 6y ago
[deleted]

bgentry 6y ago

Qualified immunity already doesn't protect you if you knowingly break the law, and it doesn't protect you if you are clearly incompetent. If you believe the experts that are well-versed in this area, this is not how it works in practice. The Wikipedia article covers a lot of the controversy around this doctrine: https://en.wikipedia.org/wiki/Qualified_immunity#Objections_and_criticisms https://en.wikipedia.org/wiki/Qualified_immunity#Objections_... Here is an example of a man in Grand Rapids, Michigan, who was brutally assaulted by undercover officers because they believed he was somebody else. Take a look at how difficult it has been for him to get any recourse for a blatantly obvious abuse of power (6 years and counting): https://twitter.com/AaronParseghian/status/1270181815664496640 https://twitter.com/AaronParseghian/status/12701818156644966...

tick_tock_tick 6y ago
In practice means DA's aren't doing their job.
- bgentry 6y ago
  Qualified Immunity is a protection against civil liability. This does not generally involve District Attorneys, whose job is to prosecute criminal cases. The lack of criminal prosecutions is more of an indication that District Attorneys aren't doing their job (or that the reality of their job is that they are disincentivized from prosecuting criminal cops).
parsimo2010 6y ago
You're right that there is a problem with how the standard is applied- requiring prior cases with extremely similar facts for precedent is the most dumb sounding thing to me. But the complaint about how qualified immunity is applied doesn't change the bigger issue that those cops in your example beat up someone and were acquitted of assault. This is focusing on how the fallback lawsuit was prevented by qualified immunity instead of the primary issue that those cops should have gone to jail.
- bgentry 6y ago
  Completely agree! Qualified Immunity only frustrates civil suits and does not impact criminal prosecutions, and IMO it is more important that cops who break the law or take away rights be criminally prosecuted for it. Ending Qualified Immunity only unlocks what should be a last resort for accountability; the larger problems is that cops don't generally face criminal charges or convictions when they violate the law or others' rights.
- rabidrat 6y ago
  Okay so what would you propose as the mechanism for focusing on that primary issue?
  - parsimo2010 6y ago
    For a start the media should focus on exposing inadequately prosecuted cops that broke the law instead of focusing on qualified immunity after the system already failed. One way to actually fix the problem is external investigation of police complaints and the power to press charges separate from the DA. The vast majority of the time the people investigating a police shooting work in the same building as the shooters, and are often police themselves. Then the DA, which works with the police on most of their cases, ends up being the one that has to prosecute them. These should both be considered conflicts of interest. We need people that aren't friends with the cops to have the power to do something. The investigators should be limited to bringing criminal charges to police that must be tried in court to prevent abuses of their power (otherwise we risk a situation of "who watches the watchmen of the watchmen"). The idea of special prosecutors exists, but for some reason isn't applied to police matters. Police unions are a problem now, but only because they have the power to fight a police chief over employment terms and threaten to strike. They would not be able to fight the prosecutor from an external organization. Let them fight the police chief over administrative actions and discipline for minor violations all they want (that's what unions are for) as long as punishment for crimes is handled by someone else. This is exactly how it works with every other union- they can fight employers on all sorts of matters, but they don't get a say once a member commits a crime, and police unions should be the same. Also, with police matters, a lack of evidence should be viewed as suspicious, and possibly considered as supporting evidence for a complaint. The police should wear cameras but they shouldn't manage the recordings. Body cameras should be allowed to be turned off to deal with sensitive issues, but those occasions should be limited and reviewable. If a cop is about to go talk to a rape victim, then the footage leading up that point should be reviewed. If a body camera was turned off when someone filed a complaint about assault, it should be pretty easy to look at the footage leading up to that point and determine if the camera was turned off for an appropriate reason, or if the cop turned the camera off so they could crack some skulls without being recorded. Excuses like "I forgot to turn my camera back on" can be handled with indicator lights and audible tones or having the camera turn back on after a while. Excuses like "my camera stopped working" can be checked to see if the police officer submitted a service request. None of these issues are controversial. The controversial part is that it costs money to set up an oversight investigation. Usually a politician running with a platform like this is doomed to lose an election because they are talking about raising taxes and they won't have the support of the police union. But if there were ever a time to get this implemented it would be now.
koheripbal 6y ago
Without QI, I can't imagine ANYONE would ever sign up to be a police officer. People don't appreciate how many frivolous lawsuits go on currently. Imagine getting sued out of your home because some rich asshole you arrested decided to sue you personally.
- wahern 6y ago
  > [P]olice officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. https://www.nyulawreview.org/issues/volume-89-number-3/police-indemnification/ https://www.nyulawreview.org/issues/volume-89-number-3/polic...
  - koheripbal 6y ago
    ...and that's good, because that's the point of QI.

loeg 6y ago

> Police officers can be charged with homicide or assault in cases of police brutality without qualified immunity applying. The bigger question of why more cops aren't going to jail has nothing to do with qualified immunity. > But we're underreaching if we focus on the fallback instead of the primary issue of holding people accountable for crimes. This is a false dichotomy; we can want both at the same time.

hwillis 6y ago

> There's nothing wrong with the idea of qualified immunity. A government worker should not be held responsible if they make an honest mistake. This implies that our legal system holds people responsible for honest mistakes. Our legal system is entirely prepared for these situations without qualified immunity. Qualified immunity exists only to shield people from breaking laws.

nokcha 6y ago

The problem isn't qualified immunity per se; the problem is the ‘clearly established law’ doctrine and how it is interpreted exceedingly generously to cops who use excessive force. https://en.wikipedia.org/wiki/Qualified_immunity#:~:text=Criticism%20is%20aimed%20in%20particular,%22clearly%20established%20law%22%20test.&text=This%20doctrine%2C%20invented%20by%20the,violated%20'clearly%20established%20law' https://en.wikipedia.org/wiki/Qualified_immunity#:~:text=Cri....

SkyBelow 6y ago

>There's nothing wrong with the idea of qualified immunity. A government worker should not be held responsible if they make an honest mistake. In a legal system where the average person is held responsible for an honest mistake, I think it is necessary for government agents to be held to the same standard. >Qualified immunity already doesn't protect you if you knowingly break the law Given how prosecutors so often refuse to hold cops accountable, qualified immunity prevents seeking justice through the last remaining system in place. >But we're underreaching if we focus on the fallback instead of the primary issue of holding people accountable for crimes. This is letting perfect become the enemy of better.

koheripbal 6y ago
No, this is not accurate. This is like you going to work at Starbucks, spilling coffee on a customer, and then YOU getting sued, rather than Starbucks. Employees are generally shielded from this. If you want to open it up liability against all workers, then that's a major setback for worker rights. If you only want to do this for police officers... well, then that's so unfair, no one is going to become a police officer.
- ryanlol 6y ago
  What protects the Starbucks employee from getting sued besides their lack of assets?
  - koheripbal 6y ago
    It is a core principle in Tort Law. Employers are the ones responsible for the liability of their employees. https://www.inc.com/articles/1999/11/15396.html https://www.inc.com/articles/1999/11/15396.html So what people are demanding here would set police officers specifically, in a different lesser class than the general public.
    - SkyBelow 6y ago
      In that case it would be a trade off for their increased ability to deploy lethal force or imprison a person. Honestly, I'm thinking the trade off would still be weighted too much in their favor. An alternative is to have it so police have no ability to detail, imprison, or use forced against anyone that you or I also don't have (and this would also extent to rights to be armed in places you or I don't have rights to be armed, and other similar rights).

deleted 6y ago

[deleted]