8 ms·

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

by 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)
jakelazaroff 4y ago
Because cops are above the law. And, as both major political parties compete to be perceived as more pro-police than the other, no one in power will do anything to change that.
- ejb999 4y ago
  there are more than a few cops sitting in jail right now that would disagree with your blanket statement.
  - vkou 4y ago
    Our prisons would be empty if locking away the average convict took half the effort that was necessary to put them where they are.
    - nkurz 4y ago
      It took me several re-readings to conclude that "them" and "they" at the end of this sentence are referring to different people! I think what vkou is saying (and I agree) is that while there currently are some police in prison who have been convicted of crimes, the difficulty factor of convicting a police officer is much higher than the difficulty of convicting a normal person. If the same higher standard for obtaining a conviction was applied to everyone else, hardly anyone would be sent to prison.
  - jakelazaroff 4y ago
    I can't tell — did you interpret my comment as "not a single police officer, without exception, suffers any sort of legal punishment for their actions," or are you trying to tell me that it's common for cops to be held accountable when they break the law?
    - seti0Cha 4y ago
      Not OP but I think it probably is fairly common for them to be held accountable. I haven't seen any statistics on it, but I regard it is the most plausible case. You're claiming otherwise. What reason can you give for me to change my opinion?
P5fRxh5kUvp2th 4y ago
That's a reasonable expectation for what qualified immunity is. But then there's the reality, which is that it's been abused via a "chicken and egg" problem. It's called "piercing the veil of qualified immunity" and the standard for doing so is "currently established law". IOW, if it's not been pierced in the past for exactly (and I mean exactly) the same thing, then the default is that qualified immunity applies. What ends up happening is that even if the broad strokes are exactly the same, they'll claim there is no currently established law if some of the minutia of the details is different. The police officer kicked the pregnant woman in the face instead of the stomach. The effect is that qualified immunity stopped being reasonable. --- If I may, I suspect most reasonable people understand that qualified immunity is there because police officers are human and mistakes happen. But it's been abused, and as such it needs to be reformed. --- editing this in as a perfect example of what I mean about courts using specificity to effectively make it impossible to pierce the veil of qualified immunity. Many thanks to btown for the link, I went looking for something similar and was unable to find it. 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... > 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.
- karmelapple 4y ago
  I hope Congress could pass a law ending qualified immunity. If you do, too, contact your US House legislators about HR 1470 and your desire to end qualified immunity: https://www.congress.gov/bill/117th-congress/house-bill/1470 https://www.congress.gov/bill/117th-congress/house-bill/1470
  - ufmace 4y ago
    It seems pretty obvious to me that it ought to be reformed to be basically what /u/SamBam thought it was instead of being eliminated entirely.

by SamBam 4y ago

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)

jakelazaroff 4y ago

Because cops are above the law. And, as both major political parties compete to be perceived as more pro-police than the other, no one in power will do anything to change that.

ejb999 4y ago
there are more than a few cops sitting in jail right now that would disagree with your blanket statement.
- vkou 4y ago
  Our prisons would be empty if locking away the average convict took half the effort that was necessary to put them where they are.
  - nkurz 4y ago
    It took me several re-readings to conclude that "them" and "they" at the end of this sentence are referring to different people! I think what vkou is saying (and I agree) is that while there currently are some police in prison who have been convicted of crimes, the difficulty factor of convicting a police officer is much higher than the difficulty of convicting a normal person. If the same higher standard for obtaining a conviction was applied to everyone else, hardly anyone would be sent to prison.
- jakelazaroff 4y ago
  I can't tell — did you interpret my comment as "not a single police officer, without exception, suffers any sort of legal punishment for their actions," or are you trying to tell me that it's common for cops to be held accountable when they break the law?
  - seti0Cha 4y ago
    Not OP but I think it probably is fairly common for them to be held accountable. I haven't seen any statistics on it, but I regard it is the most plausible case. You're claiming otherwise. What reason can you give for me to change my opinion?

P5fRxh5kUvp2th 4y ago

That's a reasonable expectation for what qualified immunity is. But then there's the reality, which is that it's been abused via a "chicken and egg" problem. It's called "piercing the veil of qualified immunity" and the standard for doing so is "currently established law". IOW, if it's not been pierced in the past for exactly (and I mean exactly) the same thing, then the default is that qualified immunity applies. What ends up happening is that even if the broad strokes are exactly the same, they'll claim there is no currently established law if some of the minutia of the details is different. The police officer kicked the pregnant woman in the face instead of the stomach. The effect is that qualified immunity stopped being reasonable. --- If I may, I suspect most reasonable people understand that qualified immunity is there because police officers are human and mistakes happen. But it's been abused, and as such it needs to be reformed. --- editing this in as a perfect example of what I mean about courts using specificity to effectively make it impossible to pierce the veil of qualified immunity. Many thanks to btown for the link, I went looking for something similar and was unable to find it. 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... > 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.

karmelapple 4y ago
I hope Congress could pass a law ending qualified immunity. If you do, too, contact your US House legislators about HR 1470 and your desire to end qualified immunity: https://www.congress.gov/bill/117th-congress/house-bill/1470 https://www.congress.gov/bill/117th-congress/house-bill/1470
- ufmace 4y ago
  It seems pretty obvious to me that it ought to be reformed to be basically what /u/SamBam thought it was instead of being eliminated entirely.