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Qualified immunity, a doctrine made up out of whole cloth by the courts, means that cops often can’t be prosecuted or even sued for the most egregious of conduc

Qualified immunity, a doctrine made up out of whole cloth by the courts, means that cops often can’t be prosecuted or even sued for the most egregious of conduct. Qualified immunity has nothing to do with criminal liability, it is a civil affirmative defense and a sound one. Essentially, it provides personal protection for ordinary negligence. When an employee at Pottery Barn drops a plate, we don't deduct it from their paycheck. If we did, no one would work there.

_jal 6y ago
That's a lovely theory which somehow manages to ignore the industrial-scale, inhuman abuses excused every day. There are far more examples of egregious abuse excused by the courts by QI than you can stomach looking at; just start searching. Feel free to quibble about all the 'good calls we don't hear about', and then dive in to 'second guessing split-second life or death situations'. We've all been through this discussion before.
- tiahura 6y ago
  That's a lovely theory which somehow manages to ignore the industrial-scale, inhuman abuses excused every day. On what planet? I'll admit, I don't do a ton of criminal work, but, I've spent more than my fair share of time sitting through criminal dockets observing cops and criminals and I just don't see it. My good friend won the last significant police brutality case in my metro of 2M people and that was 5 years ago. Here's another tell. Watch daytime TV for an hour and you'll see attorneys advertising re: Insurance companies, J&J Talc, Monsanto, Me Too, the Catholic Church, the Boy Scouts, Monsanto, Mesh manufacturers, Asbestos claims, Elmiron claims, ad infinitum. But, you won't see any police brutality commercials, and it's not because us ambulance chasers are afraid of the police. It's because the cases are so few and far between that it doesn't make sense to waste resources seeking them out.
  - burkaman 6y ago
    It's not because you're afraid of the police, it's because the courts have made it clear that accountability is impossible and cases are pointless. The standard is that you can't convict an officer for constitutional violations unless there was clearly established precedent before the violation occurred. It's an obvious catch 22: to establish precedent you must convict an officer, but you can't convict them unless there was already precedent. Maybe some court cases will help explain. Here's Mattos v. Agarano, where officers tased a defenseless, completely non-threatening pregnant woman for fun: https://cdn.ca9.uscourts.gov/datastore/opinions/2011/10/17/08-15567.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2011/10/17/0... A clear framing of the catch 22: > In determining whether an officer is entitled to qualified immunity, we employ a two-step test: first, we decide whether the officer violated a plaintiff’s constitutional right; if the answer to that inquiry is “yes,” we proceed to determine whether the constitutional right was “clearly established in light of the specific context of the case” at the time of the events in question. Even a general precedent isn't enough, you must find a previous incident relevant to the specific context of the case, which again is impossible because any officers in the past ~50 years would also have been protected by qualified immunity. > In sum, Brooks’s alleged offenses were minor. She did not pose an immediate threat to safety of the officers or others. She actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to remove her from her car. Brooks did not evade arrest by flight, and no other exigent circumstances existed at the time. She was seven months pregnant, which the officers knew, and they tased her three times within less than one minute, inflicting extreme pain on Brooks.[10] A reasonable fact-finder could conclude, taking the evidence in the light most favorable to Brooks, that the officers’ use of force was unreasonable and therefore constitutionally excessive. Of course, qualified immunity applied, there was no reason to further investigate the constitutional violation, case dismissed. You can look at Kaufman County v. Winzer, where officers shot (17 times) and killed a mentally impaired man 6 seconds after seeing him, because a completely different man had shot at them and they were scared. https://www.scotusblog.com/case-files/cases/kaufman-county-texas-v-winzer/ https://www.scotusblog.com/case-files/cases/kaufman-county-t... If you like, you can also read about how qualified immunity doesn't even achieve its alleged purpose, to shield officers from wasting time with discovery and other trial-related obligations. https://www.yalelawjournal.org/pdf/Schwartz_1ki1sac4.pdf https://www.yalelawjournal.org/pdf/Schwartz_1ki1sac4.pdf You can read a much better researched article on this topic from an actual legal scholar, rather than a random internet commenter: http://ndlawreview.org/wp-content/uploads/2018/08/2-Schwartz.pdf http://ndlawreview.org/wp-content/uploads/2018/08/2-Schwartz... You can read Jessop v. City of Fresno, where officers who literally stole $200,000+ could not be sued, because no officer before the advent of qualified immunity had been convicted of that particular crime, and the legislature hadn't thought to pass a law saying "police officers can't steal": https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/17-16756.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/1... > At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers are entitled to qualified immunity. Let me know how many more cases it will take to convince you, and I'll be happy to list them.
  - wtetzner 6y ago
    > But, you won't see any police brutality commercials, and it's not because us ambulance chasers are afraid of the police. It's because the cases are so few and far between that it doesn't make sense to waste resources seeking them out. Which is because no matter how much police violate our rights, it's basically impossible to win a case against them.
  - mindslight 6y ago
    General murders are also few and far between, yet it is in society's interest that murderers be prosecuted. The rarity of a type of crime has nothing to do with whether it should be prosecuted - achieving justice for low-frequency events is literally the entire point of the criminal justice system.
mattnewton 6y ago
> When an employee at Pottery Barn drops a plate, we don't deduct it from their paycheck. If we did, no one would work there. Actually, in professions where we are talking about serious damages to people or property, the institution doesn’t cover it and makes the practitioners buy insurance. Can you imagine if Surgeons and Lawyers operated on this pottery barn standard?
- jcrawfordor 6y ago
  Indeed, traditional professions such as doctors and lawyers are typically prohibited by law from being shielded by liability by a corporate veil. This is why, depending on the states, doctors and lawyers are typically organized as professional corporations or other similar terms rather than limited liability companies: they are specifically required to remain personally liable for their actions. Traditionally, this is what "professional" meant: that you were individually accountable for your actions. Perhaps we should consider applying the same to law enforcement, a field which by its own rhetoric seemingly holds "professionalism" in high regard.
guitarbill 6y ago
Surprisingly, police do fine in other countries without qualified immunity. And judges can strip QI, but this happens far, far too rarely. So maybe it shouldn't be the default.
8note 6y ago
Yeah the criminal defense is through union action to ensure that police get extra time to manufacture stories and the like before evidence can be collected
deleted 6y ago
[deleted]
ashtonkem 6y ago
> When an employee at Pottery Barn drops a plate, we don't deduct it from their paycheck. If we did, no one would work there. Call me crazy, but I’d like to hold the armed representatives of the state to a higher standard than the minimum wage employees at Pottery Barn. When Pottery Barn employees start legally shooting patrons for dropped plates, we can revisit this.

_jal 6y ago

That's a lovely theory which somehow manages to ignore the industrial-scale, inhuman abuses excused every day. There are far more examples of egregious abuse excused by the courts by QI than you can stomach looking at; just start searching. Feel free to quibble about all the 'good calls we don't hear about', and then dive in to 'second guessing split-second life or death situations'. We've all been through this discussion before.

tiahura 6y ago
That's a lovely theory which somehow manages to ignore the industrial-scale, inhuman abuses excused every day. On what planet? I'll admit, I don't do a ton of criminal work, but, I've spent more than my fair share of time sitting through criminal dockets observing cops and criminals and I just don't see it. My good friend won the last significant police brutality case in my metro of 2M people and that was 5 years ago. Here's another tell. Watch daytime TV for an hour and you'll see attorneys advertising re: Insurance companies, J&J Talc, Monsanto, Me Too, the Catholic Church, the Boy Scouts, Monsanto, Mesh manufacturers, Asbestos claims, Elmiron claims, ad infinitum. But, you won't see any police brutality commercials, and it's not because us ambulance chasers are afraid of the police. It's because the cases are so few and far between that it doesn't make sense to waste resources seeking them out.
- burkaman 6y ago
  It's not because you're afraid of the police, it's because the courts have made it clear that accountability is impossible and cases are pointless. The standard is that you can't convict an officer for constitutional violations unless there was clearly established precedent before the violation occurred. It's an obvious catch 22: to establish precedent you must convict an officer, but you can't convict them unless there was already precedent. Maybe some court cases will help explain. Here's Mattos v. Agarano, where officers tased a defenseless, completely non-threatening pregnant woman for fun: https://cdn.ca9.uscourts.gov/datastore/opinions/2011/10/17/08-15567.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2011/10/17/0... A clear framing of the catch 22: > In determining whether an officer is entitled to qualified immunity, we employ a two-step test: first, we decide whether the officer violated a plaintiff’s constitutional right; if the answer to that inquiry is “yes,” we proceed to determine whether the constitutional right was “clearly established in light of the specific context of the case” at the time of the events in question. Even a general precedent isn't enough, you must find a previous incident relevant to the specific context of the case, which again is impossible because any officers in the past ~50 years would also have been protected by qualified immunity. > In sum, Brooks’s alleged offenses were minor. She did not pose an immediate threat to safety of the officers or others. She actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to remove her from her car. Brooks did not evade arrest by flight, and no other exigent circumstances existed at the time. She was seven months pregnant, which the officers knew, and they tased her three times within less than one minute, inflicting extreme pain on Brooks.[10] A reasonable fact-finder could conclude, taking the evidence in the light most favorable to Brooks, that the officers’ use of force was unreasonable and therefore constitutionally excessive. Of course, qualified immunity applied, there was no reason to further investigate the constitutional violation, case dismissed. You can look at Kaufman County v. Winzer, where officers shot (17 times) and killed a mentally impaired man 6 seconds after seeing him, because a completely different man had shot at them and they were scared. https://www.scotusblog.com/case-files/cases/kaufman-county-texas-v-winzer/ https://www.scotusblog.com/case-files/cases/kaufman-county-t... If you like, you can also read about how qualified immunity doesn't even achieve its alleged purpose, to shield officers from wasting time with discovery and other trial-related obligations. https://www.yalelawjournal.org/pdf/Schwartz_1ki1sac4.pdf https://www.yalelawjournal.org/pdf/Schwartz_1ki1sac4.pdf You can read a much better researched article on this topic from an actual legal scholar, rather than a random internet commenter: http://ndlawreview.org/wp-content/uploads/2018/08/2-Schwartz.pdf http://ndlawreview.org/wp-content/uploads/2018/08/2-Schwartz... You can read Jessop v. City of Fresno, where officers who literally stole $200,000+ could not be sued, because no officer before the advent of qualified immunity had been convicted of that particular crime, and the legislature hadn't thought to pass a law saying "police officers can't steal": https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/17-16756.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/1... > At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers are entitled to qualified immunity. Let me know how many more cases it will take to convince you, and I'll be happy to list them.
- wtetzner 6y ago
  > But, you won't see any police brutality commercials, and it's not because us ambulance chasers are afraid of the police. It's because the cases are so few and far between that it doesn't make sense to waste resources seeking them out. Which is because no matter how much police violate our rights, it's basically impossible to win a case against them.
- mindslight 6y ago
  General murders are also few and far between, yet it is in society's interest that murderers be prosecuted. The rarity of a type of crime has nothing to do with whether it should be prosecuted - achieving justice for low-frequency events is literally the entire point of the criminal justice system.

mattnewton 6y ago

> When an employee at Pottery Barn drops a plate, we don't deduct it from their paycheck. If we did, no one would work there. Actually, in professions where we are talking about serious damages to people or property, the institution doesn’t cover it and makes the practitioners buy insurance. Can you imagine if Surgeons and Lawyers operated on this pottery barn standard?

jcrawfordor 6y ago
Indeed, traditional professions such as doctors and lawyers are typically prohibited by law from being shielded by liability by a corporate veil. This is why, depending on the states, doctors and lawyers are typically organized as professional corporations or other similar terms rather than limited liability companies: they are specifically required to remain personally liable for their actions. Traditionally, this is what "professional" meant: that you were individually accountable for your actions. Perhaps we should consider applying the same to law enforcement, a field which by its own rhetoric seemingly holds "professionalism" in high regard.

guitarbill 6y ago

Surprisingly, police do fine in other countries without qualified immunity. And judges can strip QI, but this happens far, far too rarely. So maybe it shouldn't be the default.

8note 6y ago

Yeah the criminal defense is through union action to ensure that police get extra time to manufacture stories and the like before evidence can be collected

deleted 6y ago

[deleted]

ashtonkem 6y ago

> When an employee at Pottery Barn drops a plate, we don't deduct it from their paycheck. If we did, no one would work there. Call me crazy, but I’d like to hold the armed representatives of the state to a higher standard than the minimum wage employees at Pottery Barn. When Pottery Barn employees start legally shooting patrons for dropped plates, we can revisit this.