9 ms·

Unfortunately, this case isn't about whether the police did something wrong, but about the principle of qualified immunity that the Supreme Court created, and h

Unfortunately, this case isn't about whether the police did something wrong, but about the principle of qualified immunity that the Supreme Court created, and has now become de facto law. The best outcome we're likely to get is that the court will rule that the police department's actions do not fall under qualified immunity, and the city's taxpayers will pay for the damages awarded.

deleted 4y ago
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voxic11 4y ago
If the officers actions don't fall under qualified immunity then he can be sued personally and would be responsible for paying any damages awarded. The taxpayers might elect to cover the officers damages but they are generally not required to by state or federal law. There are some exceptions to this like New Mexico which abolished qualified immunity but at the same time required that the employer of the police cover any damages resulting from cases where the officer would have previously been covered by qualified immunity.
- matthewmcg 4y ago
  Even if indemnification is not required by law, it's frequently written into the terms of many employment contracts and collective bargaining agreements. A recent study [1] using public records requests found that virtually all officers are indemnified, meaning they don't have to personally satisfy a judgement against them. [1] https://www.nyulawreview.org/issues/volume-89-number-3/police-indemnification/ https://www.nyulawreview.org/issues/volume-89-number-3/polic...
  - aidenn0 4y ago
    I'm actually fine with indemnification because it creates an incentive for departments to not employ cops that are going to get them sued.
    - deleted 4y ago
      [deleted]
    - msbarnett 4y ago
      This might be true if the lawsuit damages were paid out of police budgets, but in many instances this isn't the case – the lawsuits are paid out of a combination of municipal liability insurance claims and the general city budget, eg) https://abcnews.go.com/US/millions-lawsuit-settlements-hidden-cost-police-misconduct-legal/story?id=70999540 https://abcnews.go.com/US/millions-lawsuit-settlements-hidde... or https://www.npr.org/2020/09/19/914170214/police-settlements-how-the-cost-of-misconduct-impacts-cities-and-taxpayers https://www.npr.org/2020/09/19/914170214/police-settlements-... There's a broad disconnect between the police departments, their hiring and disciplinary practices, and the consequences of the lawsuits their actions generate.
      - lotsofpulp 4y ago
        Tax revenue is fungible, it does not make a difference which budget it comes from. The city’s residents are still going to have the same expectation of police services. It has to be individual police that are liable.
        msbarnett 4y ago
        The overall fungibility of tax revenue is irrelevant to the criticism of the perverse incentives at play here. Tying the payouts specifically to the police budget would mean that when the city's residents' policing service expectations failed to be met, one could point to that being a direct consequence of police actions costing them their own policing budget, increasing pressure on the public to do things like elect effective police oversight commissioners who will act to reign in their abuses and provide good value-for-cost policing. The status quo instead disconnects the oversight from the consequences, leading to the quiet defunding of other services for political reasons (since it would require city counsels to constantly vote to cut police budgets in proportion to each damage award, rather than happening "neutrally" by centering the legal defense and payouts within the police budget to begin with).
- stonogo 4y ago
  Your point is irrelevant as Novak is suing the city, not any individual officer. This has nothing to do with qualified immunity. Edit: the above is wrong, and I apologize. I got all hopped up thinking of the wrong case.
  - msbarnett 4y ago
    Completely wrong. The 6th circuit's affirmation of the lower court's summary judgement was entirely based on the officers' entitlement to qualified immunity. Read the opinion yourself: https://law.justia.com/cases/federal/appellate-courts/ca6/18-3373/18-3373-2019-07-29.html https://law.justia.com/cases/federal/appellate-courts/ca6/18... . That's the particular dispute that's heading to the Supreme Court. The municipal liability is unrelated to this amicus brief, which is entirely about the QI dispute.
  - lotsofpulp 4y ago
    He is suing the individual officers: https://reason.com/2022/09/28/a-parodist-asks-scotus-to-let-him-sue-the-cops-who-arrested-him-for-making-fun-of-them/ https://reason.com/2022/09/28/a-parodist-asks-scotus-to-let-... >After a jury unanimously acquitted Novak of that felony, he sued seven officers for violating his First Amendment rights. >But this year the U.S. Court of Appeals for the 6th Circuit concluded that the officers he sued were protected by qualified immunity, which shields police from liability for violating constitutional rights unless their alleged misconduct ran afoul of "clearly established" law.
SamBam 4y ago
I'm clearly just an idiot, but I thought that qualified immunity was to protect officials from liability while they are performing their duties in a reasonable manner, in the heat of the moment. I fail to see why it should protect the police from engaging in cold, calculated retribution of perceived enemies.
- btown 4y ago
  I mean, this is how it should work morally, and arguably how the law was designed to work. But it has since been interpreted as this: even if it is clear to all parties that the duties were not performed in a reasonable manner, qualified immunity applies unless the case fits the exact pattern of a prior case that held officials accountable. How exact must the match of circumstances be? https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure#stringency-clearly-established-law https://www.cato.org/policy-analysis/qualified-immunity-lega... (note: opinions in this article and by this organization are not mine) has examples: > A prior Sixth Circuit case had already held that an officer clearly violated the Fourth Amendment when he used a police dog without warning against an unarmed residential burglary suspect who was lying on the ground with his hands at his sides.42 But the court here held that this prior case was insufficient because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put Harris on notice that a canine apprehension was unlawful in these circumstances.”43 In other words, prior case law holding it unlawful to deploy police dogs against nonthreatening suspects who surrendered by laying on the ground did not make it clear that it was unlawful to deploy police dogs against nonthreatening suspects who surrendered by sitting on the ground with their hands up. > Nevertheless, in spite of this objectively unreasonable shooting, a majority of the Sixth Circuit panel found that the officer was entitled to qualified immunity. The court itself acknowledged that several prior cases had clearly established that “shooting a driver while positioned to the side of his fleeing car violates the Fourth Amendment, absent some indication suggesting that the driver poses more than a fleeting threat.”46 Even though that statement would seem to govern this case exactly, the majority held that these prior cases were “distinguishable” because they “involved officers confronting a car in a parking lot and shooting the non‐ violent driver as he attempted to initiate flight,” whereas here “Phillips shot Latits after Latits led three police officers on a car chase for several minutes.”47 The lone dissenting judge in this case dryly observed that “the degree of factual similarity that the majority’s approach requires is probably impossible for any plaintiff to meet.”48 To make an analogy to our industry, it's like the famous Reflections on Trusting Trust compiler paper here: https://www.cs.cmu.edu/~rdriley/487/papers/Thompson_1984_ReflectionsonTrustingTrust.pdf https://www.cs.cmu.edu/~rdriley/487/papers/Thompson_1984_Ref... - if your compiler is compromised to the extent that even when compiling a compiler, it inserts the same exact compromise in the newly compiled compiler... then there's no turning back. And here we have a concept of qualified immunity that cannot ever be given nuance, because it's impossible to adjudicate based on a no-longer-existing version of the case law that allows nuance to be added to the concept of qualified immunity. It's, quite literally, a cancer from any logical perspective. We should be ashamed as a society to have allowed such a system to exist. Only new national legislation, to my knowledge, can stop the rot, and that will come far too late for many who have suffered at the hands of law enforcement officials. (IANAL, this is not legal advice)
Spoom 4y ago
And the worst outcome is that parody is no longer protected under the First Amendment unless it is explicitly disclaimed. I fear that we may see that ruling come through.
- not2b 4y ago
  Doubt it. As bad as the current court is, some of the conservative members take the First Amendment seriously (Gorsuch, Roberts) so I think the parodist will win.
  - jacobr1 4y ago
    And even the others who might have different views on obscenity, still hold political special to be special.
- gopher_space 4y ago
  We will just end up with another popup you'll dismiss without reading. I love how easy it is to shift legal and moral burdens these days. /s
not2b 4y ago
No, that's a separate question. Qualified immunity is about whether the cops can be punished for their misconduct, but what is being appealed is a crazy court decision that basically says satire and parody isn't protected speech unless is basically says "THIS IS SATIRE" at the very beginning. Often courts rule that a search was invalid or a conviction is tossed out, but almost never are the cops punished for the invalid search or arrest.
michaelmrose 4y ago
Qualified immunity is the concept that an individual acting for the state in certain roles may not be directly pursued for damages save for certain egregious circumstances. It is not now nor has it ever been a shield protecting the local government as a whole from being found liable as it routinely is. It is likely a non-issue in this case where the issue at hand is that the government violated this individuals rights and the benefit to society would be a ruling that they clearly aren't allowed to do so in the future.

deleted 4y ago

[deleted]

voxic11 4y ago

If the officers actions don't fall under qualified immunity then he can be sued personally and would be responsible for paying any damages awarded. The taxpayers might elect to cover the officers damages but they are generally not required to by state or federal law. There are some exceptions to this like New Mexico which abolished qualified immunity but at the same time required that the employer of the police cover any damages resulting from cases where the officer would have previously been covered by qualified immunity.

matthewmcg 4y ago
Even if indemnification is not required by law, it's frequently written into the terms of many employment contracts and collective bargaining agreements. A recent study [1] using public records requests found that virtually all officers are indemnified, meaning they don't have to personally satisfy a judgement against them. [1] https://www.nyulawreview.org/issues/volume-89-number-3/police-indemnification/ https://www.nyulawreview.org/issues/volume-89-number-3/polic...
- aidenn0 4y ago
  I'm actually fine with indemnification because it creates an incentive for departments to not employ cops that are going to get them sued.
  - deleted 4y ago
    [deleted]
  - msbarnett 4y ago
    This might be true if the lawsuit damages were paid out of police budgets, but in many instances this isn't the case – the lawsuits are paid out of a combination of municipal liability insurance claims and the general city budget, eg) https://abcnews.go.com/US/millions-lawsuit-settlements-hidden-cost-police-misconduct-legal/story?id=70999540 https://abcnews.go.com/US/millions-lawsuit-settlements-hidde... or https://www.npr.org/2020/09/19/914170214/police-settlements-how-the-cost-of-misconduct-impacts-cities-and-taxpayers https://www.npr.org/2020/09/19/914170214/police-settlements-... There's a broad disconnect between the police departments, their hiring and disciplinary practices, and the consequences of the lawsuits their actions generate.
    - lotsofpulp 4y ago
      Tax revenue is fungible, it does not make a difference which budget it comes from. The city’s residents are still going to have the same expectation of police services. It has to be individual police that are liable.
      - msbarnett 4y ago
        The overall fungibility of tax revenue is irrelevant to the criticism of the perverse incentives at play here. Tying the payouts specifically to the police budget would mean that when the city's residents' policing service expectations failed to be met, one could point to that being a direct consequence of police actions costing them their own policing budget, increasing pressure on the public to do things like elect effective police oversight commissioners who will act to reign in their abuses and provide good value-for-cost policing. The status quo instead disconnects the oversight from the consequences, leading to the quiet defunding of other services for political reasons (since it would require city counsels to constantly vote to cut police budgets in proportion to each damage award, rather than happening "neutrally" by centering the legal defense and payouts within the police budget to begin with).
stonogo 4y ago
Your point is irrelevant as Novak is suing the city, not any individual officer. This has nothing to do with qualified immunity. Edit: the above is wrong, and I apologize. I got all hopped up thinking of the wrong case.
- msbarnett 4y ago
  Completely wrong. The 6th circuit's affirmation of the lower court's summary judgement was entirely based on the officers' entitlement to qualified immunity. Read the opinion yourself: https://law.justia.com/cases/federal/appellate-courts/ca6/18-3373/18-3373-2019-07-29.html https://law.justia.com/cases/federal/appellate-courts/ca6/18... . That's the particular dispute that's heading to the Supreme Court. The municipal liability is unrelated to this amicus brief, which is entirely about the QI dispute.
- lotsofpulp 4y ago
  He is suing the individual officers: https://reason.com/2022/09/28/a-parodist-asks-scotus-to-let-him-sue-the-cops-who-arrested-him-for-making-fun-of-them/ https://reason.com/2022/09/28/a-parodist-asks-scotus-to-let-... >After a jury unanimously acquitted Novak of that felony, he sued seven officers for violating his First Amendment rights. >But this year the U.S. Court of Appeals for the 6th Circuit concluded that the officers he sued were protected by qualified immunity, which shields police from liability for violating constitutional rights unless their alleged misconduct ran afoul of "clearly established" law.

SamBam 4y ago

I'm clearly just an idiot, but I thought that qualified immunity was to protect officials from liability while they are performing their duties in a reasonable manner, in the heat of the moment. I fail to see why it should protect the police from engaging in cold, calculated retribution of perceived enemies.

btown 4y ago
I mean, this is how it should work morally, and arguably how the law was designed to work. But it has since been interpreted as this: even if it is clear to all parties that the duties were not performed in a reasonable manner, qualified immunity applies unless the case fits the exact pattern of a prior case that held officials accountable. How exact must the match of circumstances be? https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure#stringency-clearly-established-law https://www.cato.org/policy-analysis/qualified-immunity-lega... (note: opinions in this article and by this organization are not mine) has examples: > A prior Sixth Circuit case had already held that an officer clearly violated the Fourth Amendment when he used a police dog without warning against an unarmed residential burglary suspect who was lying on the ground with his hands at his sides.42 But the court here held that this prior case was insufficient because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put Harris on notice that a canine apprehension was unlawful in these circumstances.”43 In other words, prior case law holding it unlawful to deploy police dogs against nonthreatening suspects who surrendered by laying on the ground did not make it clear that it was unlawful to deploy police dogs against nonthreatening suspects who surrendered by sitting on the ground with their hands up. > Nevertheless, in spite of this objectively unreasonable shooting, a majority of the Sixth Circuit panel found that the officer was entitled to qualified immunity. The court itself acknowledged that several prior cases had clearly established that “shooting a driver while positioned to the side of his fleeing car violates the Fourth Amendment, absent some indication suggesting that the driver poses more than a fleeting threat.”46 Even though that statement would seem to govern this case exactly, the majority held that these prior cases were “distinguishable” because they “involved officers confronting a car in a parking lot and shooting the non‐ violent driver as he attempted to initiate flight,” whereas here “Phillips shot Latits after Latits led three police officers on a car chase for several minutes.”47 The lone dissenting judge in this case dryly observed that “the degree of factual similarity that the majority’s approach requires is probably impossible for any plaintiff to meet.”48 To make an analogy to our industry, it's like the famous Reflections on Trusting Trust compiler paper here: https://www.cs.cmu.edu/~rdriley/487/papers/Thompson_1984_ReflectionsonTrustingTrust.pdf https://www.cs.cmu.edu/~rdriley/487/papers/Thompson_1984_Ref... - if your compiler is compromised to the extent that even when compiling a compiler, it inserts the same exact compromise in the newly compiled compiler... then there's no turning back. And here we have a concept of qualified immunity that cannot ever be given nuance, because it's impossible to adjudicate based on a no-longer-existing version of the case law that allows nuance to be added to the concept of qualified immunity. It's, quite literally, a cancer from any logical perspective. We should be ashamed as a society to have allowed such a system to exist. Only new national legislation, to my knowledge, can stop the rot, and that will come far too late for many who have suffered at the hands of law enforcement officials. (IANAL, this is not legal advice)

Spoom 4y ago

And the worst outcome is that parody is no longer protected under the First Amendment unless it is explicitly disclaimed. I fear that we may see that ruling come through.

not2b 4y ago
Doubt it. As bad as the current court is, some of the conservative members take the First Amendment seriously (Gorsuch, Roberts) so I think the parodist will win.
- jacobr1 4y ago
  And even the others who might have different views on obscenity, still hold political special to be special.
gopher_space 4y ago
We will just end up with another popup you'll dismiss without reading. I love how easy it is to shift legal and moral burdens these days. /s

not2b 4y ago

No, that's a separate question. Qualified immunity is about whether the cops can be punished for their misconduct, but what is being appealed is a crazy court decision that basically says satire and parody isn't protected speech unless is basically says "THIS IS SATIRE" at the very beginning. Often courts rule that a search was invalid or a conviction is tossed out, but almost never are the cops punished for the invalid search or arrest.

michaelmrose 4y ago

Qualified immunity is the concept that an individual acting for the state in certain roles may not be directly pursued for damages save for certain egregious circumstances. It is not now nor has it ever been a shield protecting the local government as a whole from being found liable as it routinely is. It is likely a non-issue in this case where the issue at hand is that the government violated this individuals rights and the benefit to society would be a ruling that they clearly aren't allowed to do so in the future.