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Supreme Court Will Hear Case That Could Let Cops Dodge Police Brutality Lawsuits

Supreme Court Will Hear Case That Could Let Cops Dodge Police Brutality Lawsuits

Postby smix » Wed May 13, 2020 5:24 pm

Supreme Court Will Hear Case That Could Let Cops Dodge Police Brutality Lawsuits
Forbes

URL: https://www.forbes.com/sites/nicksibill ... 932c5c927b
Category: Police
Published: March 30, 2020

Description: On Monday, the U.S. Supreme Court agreed to hear the case of James King, who was brutally assaulted and almost choked to death by an FBI agent and a police officer in Grand Rapids, Michigan. Though the question presented hinges on a highly technical federal statute, it could have major implications for excessive force lawsuits. The Justice Department, which filed the petition urging the court to grant cert, has demanded that the Supreme Court throw out James’s entire case, a move that would let the officers escape any potential legal liability. Should the Supreme Court side with the Justice Department, it would become even more challenging to sue the government over police brutality and other forms of misconduct, in a legal system that is already fiendishly complex. “In short, the government is asking the court to provide another shell for its shell game that would make it harder for plaintiffs to bring claims against government officers and easier for officers to avoid accountability for their constitutional violations,” said Scott Bullock, president and general counsel at the Institute for Justice, which is representing James as part of its newly launched Project on Immunity and Accountability. Nearly six years ago, Grand Rapids Police Detective Todd Allen and FBI Special Agent Douglas Brownback mistook James, then a 21-year-old college student, for a wanted fugitive. Based on the flimsiest of descriptions, the two members of a joint task force stopped and seized James, before beating him into submission. After the attack, police arrested and charged James—not the officers—with three felonies. A jury acquitted him on all charges. Vindicated, James then hauled both the federal government and the officers into federal court, only to step into a legal minefield. Against Brownback and Allen, James filed a so-called Bivens claim, named after a 1971 Supreme Court case that lets individuals sue federal agents for violating the Fourth Amendment. In addition to his constitutional lawsuit, James also sued for damages under the Federal Tort Claims Act (FTCA). Although the federal government is typically shielded from lawsuits, the FTCA waives sovereign immunity for certain personal injury torts committed by federal agents, like assault and battery, if a private individual could be sued under similar circumstances. A district court tossed James’s case, ruling that his FTCA claim wasn’t properly stated. Moreover, the court declared that the officers weren’t “unreasonable” when they attacked James, and so they were entitled to “qualified immunity” from his constitutional claims. On appeal, the Sixth Circuit agreed with the lower court that it “lacked subject-matter jurisdiction over [James’s] FTCA claim,” but forcefully rejected qualified immunity for the officers. However, the Justice Department is arguing that James’s lawsuit must be thrown out because when the district court dismissed his FTCA claim, it triggered the Act’s “judgment bar.” Originally crafted by Congress to prevent “duplicative litigation,” the judgment bar bans filing new claims on the “same subject matter,” if they have already been decided on the merits. As the Sixth Circuit noted, “because the district court did not reach the merits of Plaintiff’s FTCA claim, the FTCA’s judgment bar does not preclude Plaintiff from pursuing his claims against Defendants.” But under the Justice Department’s interpretation, merely bringing an FTCA claim would eradicate someone’s Bivens claims against a government officer; the judgment bar would metastasize into yet another form of immunity for federal agents. “If our constitutional rights mean anything, we must be able to enforce them,” explained IJ attorney Anya Bidwell. “People shouldn’t face a system rigged against them when they are trying to vindicate their rights, especially when those rights have been so clearly violated, as in King’s case.”





Qualified Immunity -- A Rootless Doctrine The Court Should Jettison
Forbes

URL: https://www.forbes.com/sites/georgeleef ... abc61931c7
Category: Police
Published: March 21, 2018

Description: In my previous article, I discussed the Supreme Court’s near abandonment of an actual, necessary part of the Constitution, namely the Contract Clause. Contrariwise, a case that the Court should hear involves a harmful legal doctrine that it simply made up, namely “qualified immunity.” Here’s the background. After the Civil War, most members of Congress were concerned that if the states had a free hand, they and their officials would often violate the civil rights of freed slaves and other unpopular groups. So Congress passed and President Grant signed the Civil Rights Act of 1871, which included this provision language (now known as 42 U.S. Code Section 1983): “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, of the District of Columbia, subjects or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit, or equity, or other proper proceeding for redress.” Thus, individuals whose rights were violated by police or other officials could sue them in federal court. It was supposed to deter bad actors who violate the rights of people in the course of their duties. The law says nothing whatsoever about those officials having any defenses against those suits. Nevertheless, the Supreme Court invented a defense known as “qualified immunity.” Jay Schweikert, a Policy Analyst with Cato Institute’s Project on Criminal Justice, explains here, “This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit legal misconduct unless they violated ‘clearly established law.’ That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.” One legal scholar who has made an exhaustive study of qualified immunity is Professor William Baude of the University of Chicago Law School. In his paper “Is Qualified Immunity Unlawful?” Professor William Baude explains that the Court has over time advanced three justifications for qualified immunity: “One is that it derives from a common law ‘good faith’ defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides ‘fair warning’ to government officials, akin to the rule of lenity.” But all three justifications fail, Baude shows. “There was no such defense, there was no such mistake, and lenity ought not to apply.” And in the early Sec. 1983 cases, the Court rejected the argument that there was or should be a “good faith” defense for officials, instead applying the statute exactly as written. In the 1960s, however, the Court began to read “qualified immunity” into the law. That crack in the dike has led to the situation today where, Baude says, we have virtually unqualified immunity, meaning that suits against government officials almost never succeed. The Supreme Court could, however, change the law of qualified immunity if it were to accept a Tenth Circuit case, Pauly v. White, which raises the issue. On a rainy night in 2011, three New Mexico police officers received a tip about a road rage incident that had occurred on Interstate 25. That information took them to a rural house. The officers stormed into the home with guns drawn, shouting that they had it surrounded. They lacked probable cause and did not identify themselves as police. Not knowing what dangers they faced, Samuel and his brother Daniel armed themselves with guns kept in the house. Daniel fired two shots intended to scare off the unidentified intruders. At that point, Samuel was shot dead through a window by officer Ray White. Pauly’s father filed a Sec. 1983 suit against the police officers for the death of his son, arguing that the officers violated his rights against excessive force under the Fourth Amendment. Why shouldn’t they be liable when they failed to follow proper police procedures and thereby caused what should have been a routine matter to escalate into deadly violence? The Tenth Circuit agreed that the officers had violated Samuel Pauly’s rights, but still shielded them with qualified immunity because there was no prior case with sufficiently similar facts and therefore their conduct did not did not violate “clearly established” law. Notice how extraordinarily strange this is: When ordinary citizens violate a law (usually that they had no reason to think even existed, given the vast reach of the law today), they can’t escape responsibility by saying, “But we did not know that was illegal.” But when it comes to the police and other government officials, they can and do escape responsibility because the courts say, “How were they to know their conduct was illegal?” Pauly has asked the Supreme Court to review the case. Cato Institute’s amicus brief makes a strong argument that it should take it and use the opportunity to review the mess it has created with qualified immunity. “While qualified immunity itself is not a constitutional rule,” write Cato attorneys Clark Neily and Jay Schweikert, “it vitiates the very statute that was intended to protect all persons in the United States in their rights, and to furnish the means of that vindication.” One federal judge who agrees is Jon Newman of the Second Circuit. In this Washington Post op-ed published shortly after the acquittal of the officer charged with the death of Freddie Gray while he was under arrest in Baltimore, he wrote, “Suing the officer for money damages in a federal civil rights suit is the only realistic way to establish police misconduct and secure at least some vindication for victims and their families.” The Court should go back to its original understanding of Section 1983 – that it imposes strict liability on government officials for violations of citizens’ constitutional rights. Then if Congress wants to rewrite Sec. 1983 to include a rule of lenity or any other way to weaken officials’ liability when they violate the rights of individuals, let it do so. Congress is supposed to amend the laws it writes, not the Supreme Court.
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Brownback v. King

Postby smix » Wed May 13, 2020 5:51 pm

Brownback v. King
Institute for Justice

URL: https://ij.org/case/brownback-v-king/
Category: Police
Published: February 14, 2020

Description: You probably don’t know it, but federal agents are working closely with police where you live. Over the past few decades, joint task forces staffed by both state and federal police have become common. They now number more than one thousand. As a result of these federal/state partnerships, the government often plays what amounts to a shell game that makes it impossible to hold individual officers to account if they violate someone’s constitutional rights by, for example, engaging in police brutality or other misdeeds. Here’s how it works: The tools an individual can use to hold a government officer to account for violating the Constitution depend on whether the officer was acting under state or federal law. But if an officer acts under both state and federal law—as it does when a joint task force is involved—the question becomes murkier. An officer accused of abusing his federal authority can claim he was actually acting using his state-law authority, and an officer accused of abusing his state-law authority can say he was really acting as a federal officer. Plaintiffs are left guessing and sometimes end up thrown out of court altogether. James King, a law-abiding college student in Grand Rapids, Michigan, was forced to play this game after he was brutally beaten in an unjustifiable case of mistaken identity. Task force members misidentified James as a fugitive; stopped, searched, beat and choked him into unconsciousness; and then—even after it was clear they had the wrong man—arrested James and charged him with a series of felonies to cover their tracks. After fighting a criminal prosecution aimed at preventing James from vindicating his constitutional rights and sending him to prison, James was acquitted. But that was just the beginning. When James filed a lawsuit against the officers to hold them to account for their actions, the officers argued they were entitled to several forms of immunity and persuaded the court to throw out James’ case. An appeals court reversed the worst parts of that decision, but the government has now taken James’ case to the U.S. Supreme Court, asking the Court to shield the officers from any accountability for violating the Constitution. James has partnered with the Institute for Justice to protect the rights of all Americans who encounter federal and state task forces. As part of IJ’s Project on Immunity and Accountability, James and IJ are asking the Supreme Court to end the shell game and hold officers to account when they violate individuals’ Constitution rights. If citizens must follow the law, the government must follow the Constitution. This brief video provides an overview of James King’s case:





U.S. Supreme Court Will Hear Police Accountability Case
Institute for Justice

URL: https://ij.org/press-release/u-s-suprem ... lity-case/
Category: Police
Published: March 30, 2020

Description: Arlington, Virginia—This morning the U.S. Supreme Court announced it would review the case of James King, an innocent college student who was savagely beaten in 2014 by a police officer and FBI agent in Grand Rapids, Michigan, after being unreasonably misidentified as a fugitive. The officers were working as members of a joint state-federal police task force. Ever since the unjustified assault, the government has played what amounts to a shell game to prevent King from holding the officers to account. Now, the nation’s highest court will weigh in on whether to provide the government yet another tool to shield its agents from accountability. The Institute for Justice (IJ), which represents King, will urge the Court to instead allow King to get compensation for his injuries. This case is fundamentally about the obstacles that the government and courts have placed in the way of citizens trying to make law enforcement pay for intentional, outrageous abuses. In King’s case, he brought two kinds of federal claims because he was uncertain of the officers’ status as joint agents. First, King brought constitutional claims against the officers themselves. Second, he brought claims against the U.S. government under a statute called the Federal Tort Claims Act (FTCA). Bringing different kinds of claims is normal in American law. But now the U.S. Solicitor General is taking the position that because James brought claims under the FTCA, he cannot also bring constitutional claims against the officers. In other words, the government is asserting that simply bringing an FTCA claim is like stepping on a tripwire that destroys your constitutional claims. “We hope the Court will reject the government’s request for yet another way to shield officers from constitutional accountability,” said IJ Attorney Patrick Jaicomo. “Because members of joint federal-state task forces have power under both state and federal law, they should be more accountable, not less, when they use that power to violate the Constitution.” The government first argued for this novel immunity from liability before the 6th U.S. Circuit Court of Appeals, where the court rejected the argument and also held that the officers were not entitled to another form of immunity under the doctrine of “qualified immunity.” But before the case could proceed, the U.S. Solicitor General petitioned the Supreme Court to carve out a new form of immunity under the FTCA that would preclude plaintiffs like King from bringing alternative claims under the FTCA and Constitution. “In short, the government is asking the Court to provide another shell for its shell game that would make it harder for plaintiffs to bring claims against government officers and easier for officers to avoid accountability for their constitutional violations,” said IJ President and General Counsel Scott Bullock. “If our constitutional rights mean anything, we must be able to enforce them,” explained IJ attorney Anya Bidwell. “People shouldn’t face a system rigged against them when they are trying to vindicate their rights, especially when those rights have been so clearly violated, as in King’s case.” IJ will ask the Court not to create another means for the government to shield officers from constitutional accountability. “There are already too many, and we are hopeful the Supreme Court will agree,” Bidwell said. Although the Court accepted the government’s appeal, it did not accept King’s cross-petition in this case. This is the first U.S. Supreme Court case the Institute for Justice will argue before the High Court as part of its Project on Immunity and Accountability, which seeks to hold government officials more accountable when they violate individual rights.
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Special Report: For cops who kill, special Supreme Court protection

Postby smix » Wed May 13, 2020 9:08 pm

Special Report: For cops who kill, special Supreme Court protection
Reuters

URL: https://www.reuters.com/article/us-usa- ... SKBN22K18C
Category: Police
Published: May 8, 2020

Description: MADILL, Oklahoma (Reuters) - Sick with pneumonia, agitated and confused, Johnny Leija refused to return to his hospital room. Moments later, with three police officers pinning him on the floor, Leija was dead at age 34. Staff at the local hospital in tiny Madill, Oklahoma, had called the police in the early evening of March 24, 2011, for help giving Leija an injection to calm him. Security cameras captured much of the ensuing encounter. The officers, after shooting Leija with a stun gun, follow him down a corridor, shock him again, and wrestle him to the floor. One officer then straddles Leija’s back, trying to handcuff him as the others struggle to pull back his arms. They get one handcuff on. Leija goes limp. The officers step back. Hospital staff drop to Leija’s side and begin a futile effort to resuscitate him. The Oklahoma Chief Medical Examiner’s Office determined that Leija, his lungs already compromised by pneumonia, was starved for oxygen in his struggle with the police and died from “respiratory insufficiency.” The county sheriff and the Madill police chief defended the officers’ actions as appropriate to the situation. The cops were not charged with any wrongdoing. Erma Aldaba, however, blamed the officers for her son’s death. “My son wasn’t a criminal, my son was sick,” she said in an interview. So Aldaba took the only other route open to people in her situation: She sued. Her lawsuit in federal district court in Muskogee, Oklahoma, alleged that the three officers used excessive force, violating her son’s civil rights under the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure. But almost immediately, her case hit a formidable obstacle: a little-known legal doctrine called qualified immunity. This 50-year-old creation of the U.S. Supreme Court is meant to protect government employees from frivolous litigation. In recent years, however, it has become a highly effective shield in thousands of lawsuits seeking to hold cops accountable when they are accused of using excessive force. At first, it looked like Aldaba would clear the hurdle. The judge hearing her case, and then a federal appeals court, rejected the officers’ claim of qualified immunity. The appeals panel based its decision on a two-question test courts use to weigh police requests for immunity. The first is whether the evidence shows or could convince a jury that the officers used excessive force in violation of the Fourth Amendment. The second question is whether the officers should have known they were breaking “clearly established” law – a Supreme Court coinage for a court precedent that had already found similar police actions to have been illegal. To both questions, the court determined, the answer was yes. Then, at the officers’ request, the Supreme Court intervened. The justices ordered the appeals court to reconsider its ruling, indicating that they disagreed with the lower court. Back at the appeals court, Aldaba’s lawyer argued, as he had the first time around, that the cops’ treatment of Leija was “clearly established” as illegal. To support his argument, he cited earlier cases in which police were held liable for using excessive force on unarmed, mentally compromised people. Not similar enough, the court now said, so the cops had no reason to think they were breaking the law. The police got immunity. Aldaba’s case was dead. “It makes me feel that there was a mistake, but we can’t win,” Aldaba, 60, said. “We can’t win fighting the cops.”
EFFECTIVE BARRIER
Aldaba’s lament has become an increasingly common one. Even as the proliferation of police body cameras and bystander cellphone video has turned a national spotlight on extreme police tactics, qualified immunity, under the careful stewardship of the Supreme Court, is making it easier for officers to kill or injure civilians with impunity. The Supreme Court’s role is evident in how the federal appeals courts, which take their cue from the high court, treat qualified immunity. In an unprecedented analysis of appellate court records, Reuters found that since 2005, the courts have shown an increasing tendency to grant immunity in excessive force cases – rulings that the district courts below them must follow. The trend has accelerated in recent years. It is even more pronounced in cases like Leija’s – when civilians were unarmed in their encounters with police, and when courts concluded that the facts could convince a jury that police actually did use excessive force. Reuters found among the cases it analyzed more than three dozen in which qualified immunity protected officers whose actions had been deemed unlawful. Outside of Dallas, Texas, five officers fired 17 shots at a bicyclist who was 100 yards away, killing him, in a case of mistaken identity. In Heber City, Utah, an officer threw to the ground an unarmed man he had pulled over for a cracked windshield, leaving the man with brain damage. In Prince George’s County, Maryland, an officer shot a man in a mental health crisis who was stabbing himself and trying to slit his own throat. The increasing frequency of such cases has prompted a growing chorus of criticism from lawyers, legal scholars, civil rights groups, politicians and even judges that qualified immunity, as applied, is unjust. Spanning the political spectrum, this broad coalition says the doctrine has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights. The high court has indicated it is aware of the mounting criticism of its treatment of qualified immunity. After letting multiple appeals backed by the doctrine’s critics pile up, the justices are scheduled to discuss privately as soon as May 15 which, if any, of 11 such cases they could hear later this year. Justice Sonia Sotomayor, one of the court’s most liberal members, and Clarence Thomas, its most conservative, have in recent opinions sharply criticized qualified immunity and the court’s role in expanding it. In a dissent to a 2018 ruling, Sotomayor, joined by fellow liberal Justice Ruth Bader Ginsburg, wrote that the majority’s decision favoring the cops tells police that “they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” In that case, Kisela v. Hughes, the justices threw out a lower court’s ruling that denied immunity to a Tucson, Arizona, cop who shot a mentally ill woman four times as she walked down her driveway while holding a large kitchen knife. A year earlier, Sotomayor in another dissent called out her fellow justices for a “disturbing trend” of favoring police. “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity,” Sotomayor wrote, citing several recent rulings. “But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity.” Sotomayor was responding to the majority’s decision not to hear an appeal brought by Ricardo Salazar-Limon, who was unarmed when a Houston police officer shot him in the back, leaving him paralyzed. A lower court had granted the officer immunity. The Reuters analysis supports Sotomayor’s assertion that the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police. Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court’s acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs’ appeals, the acceptance rate was slightly below the court’s average. In the cases it accepts, the court nearly always decides in favor of police. The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal. “You get the impression that the officers are always supposed to win and the plaintiffs are supposed to lose,” University of Chicago law professor William Baude said. In his research, Baude has found that qualified immunity, as a doctrine, enjoys what he calls “privileged status” on the Supreme Court, which extends to cases the court decides without even hearing arguments – a relatively rare occurrence. In such cases, the court disproportionately reversed lower courts’ denials of immunity. All nine current justices declined to be interviewed for this article. They have offered few explanations of the court’s stance on qualified immunity beyond writing in opinions that the doctrine balances individuals’ rights with the need to free officials from the time-consuming and costly burden of unnecessary litigation.
DEFINING ‘CLEARLY ESTABLISHED’
The main challenge for plaintiffs in excessive force cases is to show that police behavior violated a “clearly established” precedent. The Supreme Court has continually reinforced a narrow definition of “clearly established,” requiring lower courts to accept as precedent only cases that have detailed circumstances very similar to the case they are weighing. “We have repeatedly told courts not to define clearly established law at a high level of generality,” the court wrote in a November 2015 opinion, repeating its language from an earlier ruling. In that 2015 opinion, the justices reversed a lower court decision and granted immunity to Texas State Trooper Chadrin Mullenix, who had stopped a high-speed chase by shooting at a vehicle from an overpass, killing the driver. Critics of qualified immunity say the high court’s guidance has created a ludicrously narrow standard. Even some judges feel constrained. In a 2018 decision, James Browning, a judge in federal district court in New Mexico, said he was ruling “with reluctance” in favor of an officer who had slammed an unarmed man to the floor in his own home while he was yelling at the police. The force the cop used, Browning ruled, was excessive. But the officer had to be granted immunity, he said, because of subtle differences with the earlier case Browning had considered as a possible “clearly established” precedent. Those differences included the distance between the men and the officers and what the men were yelling. Even the locations of the respective incidents could be a factor, the judge noted, the earlier case having occurred in a Target parking lot. In his ruling, Browning criticized the high court’s approach because “a court can almost always manufacture a factual distinction” between the case it is reviewing and an earlier case. In February, the federal appeals court in Cincinnati, Ohio, granted immunity to an officer who shot and wounded a 14-year-old boy in the shoulder after the boy dropped a BB gun and raised his hands. The court rejected as a precedent a 2011 case in which an officer shot and killed a man as he began lowering a shotgun. The difference between the incidents was too great, the court determined, because the boy had first drawn the BB gun from his waistband before dropping it. In other recent cases, courts have sided with police because of the difference between subduing a woman for walking away from an officer, and subduing a woman for refusing to end a phone call; between shooting at a dog and instead hitting a child, and shooting at a truck and hitting a passenger; and between unleashing a police dog to bite a motionless suspect in a bushy ravine, and unleashing a police dog to bite a compliant suspect in a canal in the woods. The Supreme Court in 2009 raised the bar even higher for plaintiffs to overcome qualified immunity. In Pearson v. Callahan, it gave judges the option to simply ignore the question of whether a cop used excessive force and instead focus solely on whether the conduct was clearly established as unlawful. In the decade since then, the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished. The case of Khari Illidge shows this perverse dynamic at work. One cool spring evening in 2013, sheriff’s deputies in Phenix City, Alabama, a suburb of Columbus, Georgia, responded to a trespassing call. They found Illidge wandering along a quiet, tree-lined road. The 25-year-old was naked, covered in scratches and behaving erratically. In the encounter, the deputies shocked Illidge six times with a stun gun before he fell to the ground. As he lay face-down, one deputy shocked him 13 more times as two others struggled to handcuff his wrists, according to their testimony. They then shackled his ankles with leg irons and fastened them to his handcuffs – an extreme form of restraint, known as a hogtie, that many police departments across the country have banned. A 385-pound officer then kneeled on Illidge’s upper back until he went limp. Illidge was pronounced dead on arrival at the hospital. The autopsy report lists cardiac arrest as the cause of death. “They treated him like an animal,” Gladis Callwood, Illidge’s mother, said. “Or maybe even worse.” Callwood sued the police, alleging excessive force. The cops claimed qualified immunity. They said they did what was necessary to subdue an aggressive man who resisted arrest and who, according to a friend who had seen him earlier, had probably taken LSD. A toxicology report found no traces of the drug in his blood. “You have to make split-second decisions,” Ray Smith, one of the deputies who had shocked and hogtied Illidge, told Reuters. Hesitation can be deadly, he said. Judge W. Harold Albritton in federal district court in Montgomery, Alabama, sided with the cops. In his ruling, the judge said there was no precedent establishing that the officers’ treatment of Illidge was unlawful. The Atlanta-based 11th U.S. Circuit Court of Appeals agreed – even though it had heard a case involving hogtying in Florida in 2009. In that earlier case, Donald George Lewis died after West Palm Beach cops hogtied him on the side of the road where they had found him disoriented and stumbling through traffic. But the appeals court in that earlier case granted immunity without addressing whether the force police used was excessive. As a result, the court didn’t establish a precedent that could apply in subsequent cases – including Callwood’s. By allowing judges to consider only the question of clearly established law in excessive force cases, the Supreme Court created a closed loop in which “the case law gets frozen,” said lawyer Matt Farmer, who represented Lewis’s family. In October 2018, the Supreme Court declined to review Callwood’s case. Her lawsuit, like Aldaba’s, was dead.
HIGH-PROFILE OUTLIERS
Police have difficult, high-risk jobs. Few would dispute that. Qualified immunity is essential, proponents say, because police need latitude to make split-second decisions in situations that could put lives, including their own, at risk. “It is very easy to second-guess the decision making of a police officer when you are sitting at a desk,” said Chris Balch, an Atlanta-based lawyer who represents police departments in civil rights cases. Larry James, general counsel of the National Fraternal Order of Police, said the trend in appeals courts to favor immunity reflects the high volume of meritless lawsuits civil rights lawyers file. “Plaintiffs’ lawyers sue everyone under the sun, irrespective of the facts,” he said. Even so, as the Reuters analysis found, appellate courts have ruled in favor of plaintiffs, denying cops immunity, in 43 percent of cases in recent years. As opponents of qualified immunity point out, denial of immunity doesn’t automatically mean cops will be held liable for alleged excessive force. When such cases go to trial, juries may side with police after weighing the facts of a case. Also, local governments or their insurers, not the cops themselves, typically bear the financial burden of litigation, settlements or jury awards. The U.S. government does not maintain comprehensive data on civilians killed or seriously injured by police. According to media organizations and police-accountability groups that compile numbers from police reports, news accounts and other sources, the number of deaths alone is about 1,000 a year. A handful of those incidents draw national attention to police tactics – for example, the 2014 death of Eric Garner after New York City police put him in a lethal chokehold. In such high-profile cases, qualified immunity rarely comes into play. Instead, police departments, often under heavy political pressure and facing public protests, typically offer big dollar settlements to victims or their survivors. The cops may also face disciplinary action or criminal charges. In the far more numerous incidents of alleged excessive force that don’t make national headlines, police departments are under less pressure to settle, and officers are even less likely to be prosecuted or otherwise disciplined. In those cases, federal civil rights lawsuits provide the obvious avenue for holding cops accountable. The United States first allowed citizens to sue government officials for civil rights violations in a law passed in 1871. These so-called Section 1983 lawsuits were intended to give citizens a path to justice when state and local authorities in the post-Civil War era turned a blind eye to – or even participated in – acts of racist violence by groups like the Ku Klux Klan. Nearly a century later, the Supreme Court introduced qualified immunity, articulating the doctrine in a 1967 ruling to limit Section 1983 lawsuits. The court reasoned that police should not face liability for enforcing the law in good faith. The court refined the doctrine in 1982 to include the “clearly established” test. Today, after decades of Supreme Court tweaks to how excessive force cases are judged, plaintiffs’ lawyers say the deck is unfairly stacked against their clients. “Why are there so many police shootings?” said Dale Galipo, a prominent California civil rights attorney. “I would say one of the reasons is there’s no accountability, there’s no deterrent.” Several lawyers told Reuters they decline to take cases they think may have merit in large part due to the high barrier of qualified immunity. “I have turned down dozens of police misconduct cases and have routinely referred the potential plaintiffs to qualified immunity as a major problem,” said Victor Glasberg, a civil rights lawyer in Virginia. The American Association for Justice, the plaintiff bar’s main lobbying group and a backer of efforts to curb qualified immunity, knows that its “members would like to pursue cases where people are treated unjustly,” said Jeffrey White, the group’s senior associate general counsel. But, he added, lawyers must think carefully when “the chances of obtaining justice are tilted heavily towards defendants.”
GENTLE AND LOYAL
Johnny Leija spent his life in small towns in the dry, flat farming and oil country on both sides of the Oklahoma-Texas border, quitting school after junior high to take a series of temporary construction jobs. He was gentle and fiercely loyal to his family, friends and relatives told Reuters. They recounted the time Leija ended up with a broken leg after sticking up for his sister in a fight with her abusive boyfriend. In his early 20s, he spent a year in Marshall County jail for marijuana possession. After that, his family said, he never indulged in anything harder than the occasional Bud Light. Leija moved to Madill in early 2011 with his girlfriend, Olivia Flores, and the four children they were raising – one of their own and three by Flores from an earlier relationship. He soon got a job welding and painting horse trailers, but money was tight. Leija, Flores and the children were sleeping on the floor of their still-unfurnished house. In late March, when Leija started complaining about pain in his chest and torso, Flores had to pawn a radio to buy medicine. On the morning of March 24, 2011, after Leija spent most of the night vomiting, he and Flores headed to the emergency room at Integris Marshall County Medical Center, now called AllianceHealth Madill. Details of what happened over the next 12 hours come from a review of hundreds of pages of medical, police and court records and interviews with people involved. When first examined, Leija was agreeable and alert, but his blood oxygen levels were dangerously low. He was put on oxygen and given antibiotics through an intravenous line. He soon seemed on the mend and was admitted to a room down the hall. Flores left midafternoon to pick up the children from school. Soon after, Leija’s breathing became labored. His blood-oxygen level plunged again. He became distressed and aggressive. The doctor on call, John Conley, prescribed over the phone an anti-anxiety pill. Leija refused it, claiming that the hospital staff was trying to poison him. “I am Superman,” he yelled. “I am God!” He somehow cut the IV line and told a nurse that he needed to leave. Conley, again by phone, told nurses to give Leija an injection to calm him. The hospital had no security staff, so a nurse called the police to help restrain Leija for the shot. Conley arrived minutes later, finding Leija in the bathroom still insisting he had to leave the hospital. Madill Police Officer Brandon Pickens and Marshall County Deputy Sheriffs Steve Atnip and Steve Beebe were eating dinner at La Grande, a Tex-Mex joint on a highway north of Madill, when they got the call about an unruly patient at the hospital. They had little information when they arrived. Beebe thought Leija, dressed in a white T-shirt and pajama bottoms, was a visitor, not a patient. According to the officers’ accounts, Leija pulled the gauze from his IV site and yelled, “This is my blood!” as it dripped on the floor. The officers ordered Leija to his knees. He did not comply. Beebe aimed his Stinger stun gun at Leija and fired, hitting Leija in the chest. It had little effect. Leija “hollered out, shook a bit,” a nurse later testified. Beebe, Pickens and Atnip then grabbed Leija, 5 foot 8 and 230 pounds, and pushed him against a wall, where Beebe pressed the Stinger against Leija’s back and shocked him again. The four toppled onto the lobby floor with a thud. Pickens and Atnip were holding Leija face down and Beebe was trying to handcuff him when he grunted and stopped moving. Clear fluid poured from his mouth and pooled on the floor around his head. Conley and staff spent 40 minutes trying to revive Leija. At 7:29 p.m., he was pronounced dead, a Stinger dart still stuck in his chest. Marc Harrison, a forensic pathologist with the Oklahoma Chief Medical Examiner’s Office, testified in a sworn deposition that Leija’s manner of death was “natural,” but that “it would be reasonable to assume” that two shocks with a stun gun and Leija’s physical struggle with police would have “required an elevated need for oxygen.” Through the medical examiner’s office, Harrison said he stands by his opinion.
STERN DENIALS
When Aldaba’s lawsuit against the officers landed in federal court in Muskogee, Oklahoma, the officers’ lawyers quickly asked that the case be thrown out on the grounds of qualified immunity. It was “abundantly clear” that the force used on Leija was not excessive, the police lawyers argued. Further, they said, no established precedent put the officers on notice that they would violate Leija’s rights “by attempting to subdue an individual so that medical staff could properly treat him.” Judge Frank Seay disagreed. He noted that officers’ accounts differed from each other about the extent of the threat Leija posed and what the officers knew about his medical condition. For instance, the two sheriff deputies said Leija was “slinging blood” and had challenged them to fight, but officer Pickens did not make those claims. And while all three officers said Leija was bleeding heavily, two nurses present testified that he wasn’t. “Leija was a hospital patient. He was not armed in any fashion. While it is alleged that he was using his blood as a weapon, there is no evidence that any blood spattered on any of the officers,” Seay said in his April 5, 2013, ruling. The case against the three officers could now move forward. Beebe, the deputy who twice shocked Leija, said in an interview that his biggest regret about the fatal encounter was not having more details on Leija and his medical condition. “Maybe we could have done things different if we had that information,” Beebe said. “The last thing you want to do is end up with somebody dying.” He added: “I’m sad for the family. We all live in the same community.” Beebe also serves as pastor at a Southern Baptist church in a nearby town – a role that he said has helped him understand the need to de-escalate stressful situations. In the encounter with Leija, however, he and the other officers “did the right thing” to protect themselves and the people in the hospital, he said. “I think we need to be held accountable,” Beebe said. “But when we go out, sometimes we have to use force…. We shouldn’t have to worry about being sued every time.” Pickens, now a firefighter in Madill, directed questions to his police superiors. City Manager James Fullingim, who was police chief at the time of Leija’s death, said immunity is important for officers to perform their jobs. “The officers absolutely did not do anything wrong,” he said. Atnip died in a motorcycle accident in 2015. Conley, the doctor who treated Leija, declined to comment. The police took their case to the 10th U.S. Circuit Court of Appeals in Denver, Colorado. That court was no less stern in denying the officers’ appeal, faulting their decision to “Tase and wrestle to the ground a hospital patient whose mental disturbance was the result of his serious and deteriorating medical condition.” Leija did not commit any crime, the court said, and he posed a threat only to himself, passively resisting the officers. “The situation the police officers faced in this case called for conflict resolution and de-escalation, not confrontation and Tasers,” the court said. The officers then petitioned the Supreme Court to review the case. Their appeal arrived just as the justices were weighing the case of Texas State Trooper Mullenix, the cop who shot and killed a fleeing driver from an overpass. The lower courts had denied Mullenix immunity, saying it was unclear how much of a risk the driver had posed. But on Nov. 9, 2015, the Supreme Court reversed the lower courts. Ignoring whether the force used was illegal, the justices focused on whether Mullenix’s actions had been clearly established as illegal. It concluded that none of the three car-chase cases it had previously decided were similar enough. The same day, the justices ordered the 10th Circuit to use the Mullenix ruling as a guide in reconsidering whether qualified immunity should apply in Aldaba’s case. Aldaba’s lawyer, Jeremy Beaver, pointed out to the appellate panel a handful of “strikingly similar” rulings from the 10th Circuit going back nearly 20 years that provided “ample warning” to the police that their actions were unlawful. Case law since 2001, Beaver noted, required police to consider a person’s diminished mental health or capacity when determining what force to use. A 2007 case denounced the beating and Tasing of an unarmed, nonviolent person who was not fleeing. So did a similar case from 2010. “Mr. Leija had a clearly established right to be free from Tasering and tackling while he was a hospital patient who had committed no crimes, was unarmed, was not a threat to the officers or the public, and was mentally and physically compromised,” Beaver argued in court papers. That wasn’t enough. The revised appeals court decision, written by Judge Gregory Phillips, dismissed Beaver’s arguments because the “offered cases differ too much from this one.” Phillips said the cases Beaver cited involved force to detain people for “non-medical” reasons and did not involve hospital personnel “standing by observing” the incident. “We have found no case presenting a similar situation,” the judge wrote. Phillips did not respond to a request for comment. The outcome, Beaver said, highlights the painful paradox of qualified immunity. Aldaba “had to live with the fact that at every stage, every judge that reviewed the case determined that there were constitutional violations that had occurred,” he said. “Despite that, she still couldn’t have a trial.”



When cops kill, redress is rare - except in famous cases
Reuters

URL: https://www.reuters.com/article/us-usa- ... SKBN22K193
Category: Police
Published: May 8, 2020

Description: (Reuters) - The 2014 shooting death of black teen Michael Brown by a white police officer in Ferguson, Missouri, prompted angry protests and trained a national spotlight on a perceived lack of police accountability for violent encounters with the public. Since then, the “Black Lives Matter” movement – sparked by the killing of black teen Trayvon Martin by civilian George Zimmerman in Florida in 2012 – has become closely associated with critiques of overly aggressive policing, particularly against black people. Heightened public awareness, enhanced by the increasing prevalence of cellphone video, has kept the issue front and center through a series of incidents that have made national headlines in recent years. These high-profile cases – unlike most excessive force lawsuits against police that Reuters reviewed – are outliers, resulting in generous settlement offers and sometimes even criminal charges before police had any recourse to claiming qualified immunity. Here is a summary of some of those cases and their outcomes:
* MICHAEL BROWN, a black teen killed by a white police officer in Ferguson, Missouri, in 2014.
Settlement: $1.5 million.
Criminal charges: None.
* ERIC GARNER, a black man who died after repeatedly crying “I can’t breathe” while placed in a chokehold by a New York City cop during an attempted 2014 arrest.
Settlement: $5.9 million.
Criminal charges: None.
* TAMIR RICE, a 12-year-old black boy who was holding a toy gun when shot dead by a Cleveland, Ohio, police officer in 2014.
Settlement: $6 million.
Criminal charges: None.
* FREDDIE GRAY, a black man who died from injuries he sustained while in handcuffs and leg irons after being thrown into the back of a Baltimore police van in 2015.
Settlement: $6.4 million.
Criminal charges: The six officers criminally charged in Gray’s death were acquitted or the charges were dropped.
* WALTER SCOTT, an unarmed black man shot in the back while fleeing on foot from a traffic stop in North Charleston, South Carolina, in 2015.
Settlement: $6.5 million.
Criminal charges: The officer pleaded guilty to federal civil rights charges and was sentenced to 20 years in prison.
* PHILANDO CASTILE, a black man shot and killed during a 2016 traffic stop in a St. Paul, Minnesota, suburb after telling police he had a gun in the vehicle.
Settlement: Close to $3 million.
Criminal charges: A jury acquitted the officer on charges of felony manslaughter and reckless discharge of a firearm.
* JUSTINE DAMOND, an unarmed white Australian-American woman shot dead by police who were responding to her 911 call to report a possible rape in 2017.
Settlement: $18 million paid to her family, and $2 million donated to gun violence prevention.
Criminal charges: A jury convicted the officer of murder.
* STEPHON CLARK, an unarmed black man killed by Sacramento, California, police in 2018 after they chased him into his grandmother’s back yard.
Settlement: Clark’s two children received $1.2 million each. Claims by other family members are pending.
Criminal charges: None.
* ATATIANA JEFFERSON, a black woman shot dead by a Fort Worth, Texas, cop in 2019 while standing in her home with a handgun after hearing noises outside.
Settlement: No lawsuit filed yet.
Criminal charges: The officer, who resigned, is awaiting trial for murder.



How Reuters analyzed court data on qualified immunity
Reuters

URL: https://www.reuters.com/article/us-usa- ... SKBN22K18J
Category: Police
Published: May 8, 2020

Description: (Reuters) - Supreme Court Justice Sonia Sotomayor has repeatedly criticized her fellow justices for creating, as she put it in a 2018 dissent, an “absolute shield” for police officers accused of excessive force. So Reuters reporters decided to test her words. Sotomayor isn’t alone in faulting the court for making it too easy for cops accused of violating the Fourth Amendment to the U.S. Constitution, which protects the public from unreasonable search and seizure. Groups from across the political spectrum have set their sights on the obscure legal doctrine known as qualified immunity, created half a century ago to shield police and other government employees from legal liability for actions they take on the job. But no one had measured whether the critics were right: Were the Supreme Court’s actions making it easier for police to beat back lawsuits by claiming qualified immunity? And how were the high court’s interventions playing out in the lower courts? To answer these questions, Reuters reporters built and analyzed a database made up of information from all three levels of the federal courts: district and appellate courts and the Supreme Court.
APPELLATE COURTS
Reporters first analyzed 529 federal circuit court opinions published from 2005 through 2019 on appeals of cases in which cops accused of excessive force raised a qualified immunity defense. Not all opinions are published, but those that are set precedent for lower courts. We identified the cases by searching written opinions in Westlaw, a legal research service owned, like Reuters, by Thomson Reuters Corp. Westlaw researchers estimate that our search captured nearly all relevant cases. We excluded claims against corrections officers for incidents that occurred in jails and prisons. For every relevant opinion, reporters recorded dozens of characteristics related to the facts of the case, such as whether and how the civilian was armed, the type of force the officers applied, and whether the civilian was injured or died in the encounter with police. We also recorded whether the court granted qualified immunity and some specifics about that decision. For example, did the court find that the civilian’s civil rights may have been violated, or did the court skip this question? Did the court find a clearly established precedent that the force was unconstitutional? Our analysis of this data showed the appellate courts’ growing tendency, influenced by guidance from the Supreme Court, to grant police immunity. More than ever, they are ignoring the question of whether cops have violated a plaintiff’s constitutional rights, thereby avoiding establishing a precedent for future cases and making it harder to win cases against the police. The failure to set precedents is particularly challenging for plaintiffs because the data also showed that appellate courts are increasingly requiring a nearly identical case from the past to serve as a precedent that clearly establishes an officer’s actions as illegal – a high standard that again makes it hard to win against the police.
SUPREME COURT
In one of her dissents, Justice Sotomayor called out a “disturbing trend” in which the Supreme Court intervened more often at the request of officers than civilians. To quantify just how often this was happening, Reuters downloaded the Supreme Court’s docket and paired it with Westlaw data to identify police use-of-force cases mentioning qualified immunity. Reuters used decisions from the Supreme Court’s terms from 2005 through 2018, the last term for which complete data was available. Reporters again manually reviewed cases to determine which party petitioned the court and the petition’s outcome. We excluded pro se cases, those in which petitioners served as their own lawyers, because requests not drafted by attorneys have a significantly lower success rate. In total, Reuters identified 121 relevant petitions – 65 submitted by police and 56 submitted by civilians. Our data confirmed Sotomayor’s statement. An officer was 3.5 times more likely than a civilian to have a petition accepted. The circumstances of a case – whether a civilian drew a weapon or resisted arrest, for example – can influence judicial decisions on qualified immunity. Yet even after controlling for such factors, we still found a significant increase over time in appeals decisions granting qualified immunity and in the Supreme Court’s own decisions about whether to take a case.



A united front takes aim at police immunity from lawsuits
Reuters

URL: https://www.reuters.com/article/us-usa- ... SKBN22K18R
Category: Police
Published: May 8, 2020

Description: (Reuters) - The diverse opponents of qualified immunity have thrown their weight behind at least five appeals now awaiting the Supreme Court’s attention, each considered a potential means of removing or softening the doctrine. One of them is the case of Alexander Baxter, a homeless man arrested in Nashville, Tennessee, during a Jan. 8, 2014, home break-in. By Baxter’s account, he had already put up his hands in surrender when police released a service dog that then rushed Baxter and bit him, resulting in an injury that required hospital treatment. The officers said they did not see his hands raised before they released the dog. While serving the 12-year prison sentence arising from his conviction for attempted theft on the night of the alleged attack, Baxter – originally representing himself – sued the cops in federal court, alleging that they used excessive force by setting the dog on him. A federal district court judge hearing Baxter’s case allowed it to move forward. But in a Nov. 8, 2018, ruling, the 6th U.S. Circuit Court of Appeals in Cincinnati, Ohio, granted the officers immunity. Baxter then petitioned the Supreme Court to overturn the lower court. “I felt like the officers were wrongly getting away with spilling my blood,” Baxter told Reuters in a handwritten letter sent from prison in Tennessee. Now, the liberal American Civil Liberties Union and the libertarian Cato Institute are providing legal support for Baxter. The Alliance Defending Freedom, a conservative Christian advocacy group, the NAACP Legal Defense & Educational Fund, a civil rights group, and a diverse collection of legal scholars are also backing some of the cases awaiting the high court’s attention. In the Baxter petition, one of 11 qualified immunity appeals the Supreme Court plans to discuss on May 15, the ACLU has explicitly asked the justices to consider whether qualified immunity should be “narrowed or abolished.” Cato, meanwhile, has filed friend-of-the-court briefs for Baxter’s case and others like it as part of a campaign to end qualified immunity. If the justices were to take up Baxter’s case or another like it, the ACLU, Cato and other foes of qualified immunity are ready with arguments that the doctrine is improperly and inconsistently applied; that it has no basis in civil rights law; and that its purported benefits – to avoid second-guessing officers or saddling them with distracting lawsuits – do not justify trampling civil rights. The critics do not universally agree on what could replace the doctrine, or, if the justices refuse to abolish it, how it can be improved. Some suggest removing protections for officers that have been built up over years to avoid disclosing evidence, for instance, or assessing whether they acted in good faith. Others call for a rethink of the two-question test for deciding requests for qualified immunity. “I don’t know we know the right answer yet,” said Emma Andersson, the lead ACLU lawyer on the Baxter appeal.



Six takeaways from Reuters investigation of police violence and 'qualified immunity'
Reuters

URL: https://www.reuters.com/article/us-usa- ... SKBN22K1AM
Category: Police
Published: May 8, 2020

Description: (Reuters) - Michael Brown. Eric Garner. Freddie Gray. Their names are seared into Americans’ memories, egregious examples of lethal police violence that stirred protests and prompted big payouts to the victims’ families. But for every killing or injury that grabs national attention, there are hundreds of others that do not. In these, police departments face far less public pressure to pay damages, and officers are even less likely to be disciplined. That leaves one option for victims or their families to seek justice: sue the cops for civil rights violations under the Fourth Amendment to the U.S. Constitution. A new Reuters investigation, however, has found that more often than not, these last-ditch excessive force lawsuits fail to win victims any redress - all because of a little-known legal defense called qualified immunity. This 50-year-old creation of the U.S. Supreme Court is meant to protect government employees from frivolous litigation. In recent years, though, it has become a highly effective shield in thousands of lawsuits seeking to hold cops accountable for using excessive force. Here are six takeaways from our investigation:
* Even as cellphone video taken by bystanders has turned a national spotlight on extreme police tactics, the qualified immunity doctrine - painstakingly erected over the years by the U.S. Supreme Court - is making it easier for officers to kill or injure civilians with impunity.
* The Supreme Court’s decisions have had far-reaching effects that tilt the scales in favor of officers. Reuters conducted the first-ever comprehensive review of hundreds of appeals filed in excessive force cases in federal courts. We found that police won 56% of cases in which they claimed qualified immunity from 2017 through 2019. That’s up sharply from the three prior years, when they won 43% of the time.
* Even when U.S. courts confirm cops violated a victim’s civil rights, police can still escape liability. That’s because the Supreme Court has continually raised the bar for challenges to the qualified immunity defense. Reuters found dozens of examples of this.
* Cops win these cases so often that plaintiffs’ lawyers say they are reluctant to take on clients harmed in violent encounters with police.
* A growing chorus, spanning the political spectrum, is calling for the Supreme Court to make changes. Among the critics are two of the court’s own justices: the liberal Sonia Sotomayor and the conservative Clarence Thomas. Sotomayor, in a 2018 dissent, wrote that the court’s decision favoring cops sends a dangerous signal: “They can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
* The high court is now indicating it is aware of the outcry over qualified immunity. Multiple appeals backed by the doctrine’s critics have piled up before the Supreme Court. The justices are scheduled to discuss privately as soon as May 15 which, if any, of 11 such cases they could hear later this year.
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Supreme Court Justices Are Considering 13 Petitions Involving the Pernicious Doctrine of Qualified Immunity

Postby smix » Wed May 13, 2020 9:37 pm

Supreme Court Justices Are Considering 13 Petitions Involving the Pernicious Doctrine of Qualified Immunity
Townhall

URL: https://townhall.com/columnists/jacobsu ... y-n2568682
Category: Police
Published: May 13, 2020

Description: Based on an erroneous report of a "domestic assault," police officers came to rescue Melanie Kelsay from the man who supposedly was attacking her at a community swimming pool in Wymore, Nebraska. Then one of them actually assaulted her, lifting the 130-pound woman off the ground in a bear hug and throwing her to the ground, breaking her collarbone and knocking her unconscious, because she disobeyed his command to "get back here." Last year, the U.S. Court of Appeals for the 8th Circuit ruled that the assault did not violate Kelsay's "clearly established" Fourth Amendment rights, meaning she could not sue the sheriff's deputy who had injured her. Kelsay's appeal of that decision is one of 13 cases involving "qualified immunity" that the U.S. Supreme Court will consider for review on Friday, giving the justices ample opportunity to revisit a misbegotten doctrine that shields police officers from liability for egregious misconduct. Qualified immunity, which the Court invented in 1982, is supposed to protect government officials from the chilling effect of frivolous lawsuits under a federal statute that allows people to seek damages for violations of their constitutional rights. But in practice, the doctrine often means that victims like Kelsay cannot pursue their claims unless they can locate a precedent that closely matches the facts of their case. In a recent analysis of 252 excessive-force cases decided by federal appeals courts from 2015 through 2019, Reuters found that most of the lawsuits were blocked by qualified immunity. It also found that the share of cases decided in favor of police has risen during the last decade and a half, from 44% in 2005-07 to 57% in 2017-19. After 2009, when the Supreme Court said judges could grant police qualified immunity without deciding whether their actions were unconstitutional, that shortcut became increasingly common, making it even harder for victims of police abuse to find apposite precedents. As 5th Circuit Judge Don Willett has observed, "important constitutional questions go unanswered precisely because those questions are yet unanswered." Hard as it may be to believe, those questions include whether police in Idaho violated the Constitution when they wrecked a woman's home with tear gas grenades after she gave them permission to "get inside" so they could arrest her boyfriend (who was not actually there). While musing that getting inside could be construed to include firing toxic, destructive projectiles into the house, the U.S. Court of Appeals for the 9th Circuit last year declined to decide whether that would be "reasonable" under the Fourth Amendment. That ruling, which the Supreme Court also has been asked to review, not only left the plaintiff without recourse; it gave other police officers license to do exactly the same thing, since the 9th Circuit approved qualified immunity without resolving the constitutional issue. So did the 6th Circuit in a 2018 case involving a Nashville officer who sicced a police dog on a burglary suspect who said he had already surrendered and was sitting on the ground with his hands up. Another petition the justices are mulling this week involves a Georgia sheriff's deputy who received qualified immunity after he shot a 10-year-old boy while trying to kill his dog. Neither the boy nor the dog had done anything to justify the use of lethal force, except that they happened to be in their own yard when the cops chased an unarmed suspect into it. Further fodder for the Supreme Court's potential reconsideration of qualified immunity: The Fresno cops who allegedly stole cash and property worth more than $225,000 while executing a search warrant. Although the officers should have understood that theft was "morally wrong," the 9th Circuit ruled last year, "they did not have clear notice that it violated the Fourth Amendment." Qualified immunity, by contrast, definitely gives police clear notice. It tells them they can get away with violating people's rights as long as they find new ways to do it.
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How Supreme Court Doctrine Protects Cops Who Kill (or Otherwise Use Excessive Force)

Postby smix » Wed May 13, 2020 9:50 pm

How Supreme Court Doctrine Protects Cops Who Kill (or Otherwise Use Excessive Force)
Reason

URL: https://reason.com/2020/05/11/how-supre ... ive-force/
Category: Police
Published: May 11, 2020

Description: A Reuters report suggests changes in qualified immunity doctrine have immunized police officers sued for misconduct.
The doctrine of qualified immunity serves to shield government employees for liability for their actions. Basically, the doctrine holds that a government actor is immune from suit for discretionary actions performed within their official capacity, unless their actions violated "clearly established" law. So, for example, if a police officer is sued for using excessive force on a civilian, qualified immunity will protect them unless it was "clearly established" by prior court decisions (or relevant statutes) that their actions were unlawful or unconstitutional. Qualified immunity is very difficult for victims of government misconduct to overcome. First, the Supreme Court has made clear that courts are to conduct a very narrow inquiry in determining what is "clearly established." Basically, if there's not a case on point in which government officials engaged in precisely the same misconduct, it's unlikely it will be considered "clearly established" that what the defendants in a subsequent case did is wrong. Second, the way qualified immunity cases proceed today prevents courts from concluding that conduct was unlawful, so the unlawfulness of much wrongful conduct escapes ever being classified as "clearly established." Historically, under Saucier v. Katz, courts conducted a two-part inquiry in qualified immunity cases. First, a court was to look at whether the alleged conduct would make out a violation of a constitutional right. Then, if so, the Court would consider whether that right was clearly established at the time of the defendant's alleged misconduct. Under this approach, courts could conclude that what a government official did was wrong, and still find them immune. Importantly, however, such a ruling would put others on notice that those who engage in similar conduct would not receive qualified immunity. In 2009 the Supreme Court overturned Saucier in Pearson v. Callahan. Under Pearson, a reviewing court can simply answer the second question: Was it "clearly established" at the time of the alleged conduct that the conduct was wrong? By truncating the inquiry in this way, Pearson made things easier for lower courts. Pearson also ensures that the wrongfulness of much wrongful conduct never becomes "clearly established." A new investigative report by Reuters suggests that this change has had a significant effect on the rate at which courts find qualified immunity. Between 2005-07 and 2017-19, the percentage of qualified immunity cases won by plaintiffs dropped from 57 percent to 45 percent.
In the decade since [Pearson], the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

I am sure that the shift is due to a range of factors, and I hope that Reuters will make its data available to other researchers who would like to build on and refine their findings. It is important to understand how slight doctrinal shifts affect facts on the ground. Beyond the doctrinal changes, the Supreme Court has also sent a clear signal to lower courts that it's more suspicious of rulings denying qualified immunity than those allowing suits to proceed.
Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court's acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs' appeals, the acceptance rate was slightly below the court's average. In the cases it accepts, the court nearly always decides in favor of police. The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal. "You get the impression that the officers are always supposed to win and the plaintiffs are supposed to lose," University of Chicago law professor William Baude said. In his research, Baude has found that qualified immunity, as a doctrine, enjoys what he calls "privileged status" on the Supreme Court, which extends to cases the court decides without even hearing arguments – a relatively rare occurrence. In such cases, the court disproportionately reversed lower courts' denials of immunity.

Fortunately, current qualified immunity doctrine is subject to increasing criticism, including from academics across the political spectrum. Perhaps this will encourage the Court to change course. Justices may think that a strict qualified immunity doctrine protects cops, but this would be mistaken. I would argue that by insulating bad cops from accountability for their actions, qualified immunity actually endangers the vast majority of cops who do not engage in egregious misconduct. Insulating officers from accountability reduces trust of officers across the board. Allowing suits to go forward against the small percentage of cops that truly do wrong would make it easier for more communities to have faith in the important work that police do.
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As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight

Postby smix » Wed May 13, 2020 10:12 pm

As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight
Cato Institute

URL: https://www.cato.org/blog/supreme-court ... oins-fight
Category: Police
Published: January 17, 2020

Description: The Wall Street Journal recently published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the raging battle against qualified immunity, a court‐​confected doctrine that provides rights‐​violating police and other government officials with what Cato has described as an “unlawful shield” against accountability for their misconduct. IJ’s focus on this issue will be a welcome addition to a fight that Cato has been waging for nearly two years with help from an astonishingly cross‐​ideological cast of public interest organizations ranging from the ACLU and the NAACP Legal Defense Fund to the Alliance Defending Freedom and the Second Amendment Foundation. Cato launched its strategic campaign to challenge the doctrine of qualified immunity—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s—on March 1, 2018. Cato’s kick‐​off panel featured Judge Lynn Adelman of the Eastern District of Wisconsin, who has sharply criticized the doctrine; Professor Will Baude, whose enormously influential law review article has formed the backbone of the legal challenge to qualified immunity; and Andy Pincus and Victor Glasberg, two practitioners with ample experience confronting the harsh realities of the doctrine. Shortly after that conference, George Will noted on Meet the Press that there would be a “national discussion” about qualified immunity, “led by the Cato Institute.” The centerpiece of Cato’s strategic campaign to take down qualified immunity has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. Since launching the campaign in March 2018, Cato has filed dozens of additional amicus briefs in our own name, but we have also organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity—what Judge Don Willett recently called “perhaps the most diverse amici ever assembled.” This “cross‐​ideological brief” was first filed in July 2018, in support of the cert petition in Allah v. Milling, a case involving the illegal and unconstitutional solitary confinement of a pretrial detainee in Connecticut for nearly seven months. So unsettled was the state by the onslaught of amicus support that it settled the case by offering the plaintiff more to dismiss his cert petition than he had been awarded at trial. A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench. To give just a few notable examples:
* Judge Don Willett, a Trump appointee to the Fifth Circuit, has explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly,” and sharply notes that “this entrenched, judge‐​created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.”
* Judge James Browning, a George W. Bush appointee to the District of New Mexico, has now issued several opinions that include a blistering criticism of the Supreme Court’s “clearly established law” standard, and citing Cato’s amicus briefs for the argument that “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.”
* Judge Dale Drozd, an Obama appointee to the Eastern District of California, cited Cato’s March 2018 forum in his discussion of the campaign to challenge qualified immunity, and announced that “this judge joins with those who have endorsed a complete re‐​examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”
Now, almost two years into Cato’s campaign, the Supreme Court finally appears to be preparing to confront the question of whether qualified immunity should be reconsidered. There are currently six major qualified immunity cert petitions pending before the Court, and the manner in which the Supreme Court has repeatedly rescheduled consideration of these cases strongly suggests that the Justices may be preparing to consider them together—which in turn suggests that they’re looking closely at the fundamental question of whether qualified immunity should be reconsidered. We first discussed this possibility back in October of last year, and we now have even more evidence suggesting the Court may be preparing to take up this issue. Here are the key details about each of the six cases:
* Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. The ACLU filed a cert petition back in April 2019, asking whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” Cato filed a brief in support of the petition, and we also helped to coordinate the filing of an updated cross‐​ideological brief. Jay Schweikert and Emma Andersson (one of the ACLU attorneys on the case) wrote a joint op‐​ed discussing the case back in July, and Law360 ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?”
* Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐​law roots of qualified immunity.”
* Zadeh v. Robinson and Corbitt v. Vickers. We’ve discussed these cases in more detail previously, but Zadeh is the case where the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. And Corbitt is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both cases are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross‐​ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.
* Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The cert petition in this case was filed on November 26, 2019, and while it doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.
* West v. Winfield. As related in the IJ op‐​ed mentioned above, police officers told Shaniz West that they were looking for her ex‐​boyfriend and thought he might be inside her house, so she gave them permission to go in and look. But instead of entering, they instead called a SWAT team, who bombarded it from the outside with tear‐​gas grenades, effectively destroying her home and all her possessions (the ex‐​boyfriend wasn’t even inside). The Ninth Circuit granted immunity to the officers, on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that Ms. West gave to allow officers to enter her home. Yesterday, the IJ filed a cert petition on behalf of Ms. West asking the Court to clarify and limit the scope of qualified immunity. As noted, this case marks the launch of IJ’s “Project on Immunity and Accountability,” which is focused on challenging doctrines like qualified immunity that erroneously permit public officials to operate above the law. IJ has previously joined various iterations of the Cato‐​conceived cross‐​ideological brief described above, but we’re looking forward to filing our own amicus brief in support of IJ’s cert petition in West.
The Court has yet to make a final decision about any of these cert petitions, but there’s good reason to think the Justices are preparing to consider at least some of them jointly. First, in every single one of these cases (except West, as it was just filed yesterday), the Court has “called for a response” to the cert petition. Although a CFR alone is no guarantee of a cert grant, it’s an encouraging sign that at least some of the Justices are looking closely at the case, and want to hear more from the respondents about the issue. Second, the Court’s repeated rescheduling decisions strongly suggest that they’re planning to consider them together, meaning they’re likely to address the fundamental, underlying question of whether qualified immunity itself should be reconsidered. Specifically, Baxter and Brennan were both fully briefed and originally set to be considered in October 2019. But since then, the Baxter petition has been rescheduled five times, and Brennan has been rescheduled three times, most recently on January 8th in both cases. January 8th also happens to be the same day in which the Court called for a response in both Zadeh and Corbitt (with the Kelsay CFR following five days later, on January 13th). It’s hard to imagine why else the Court would postpone these fully briefed petitions for over three months, unless they were holding them to consider along with these more recent petitions raising the same ultimate question. Of course, this is all still speculative to some degree, and even if the Court does grant cert in one or more of these cases, there’s a wide range of potential outcomes. But the confluence of so many powerful petitions pending at the same time, combined with the Court’s obvious focus on this issue, makes undeniable what Cato has been saying for years—one way or another, the Supreme Court is going to have to confront the glaring legal inadequacies of qualified immunity, together with the massive injustices the doctrine has perpetrated on countless individuals whose rights have been violated with impunity by unaccountable police and other government officials.



An Unqualified Injustice
Cato Institute

URL: https://www.cato.org/publications/comme ... -injustice
Category: Police
Published: January 1, 2018

Description: One of the most important tools we have for holding police and other public officials accountable is the ability to sue them when they violate our rights. But the Supreme Court has undermined this vital accountability mechanism with a legal fiction called “qualified immunity.” On Friday, the court will have an opportunity to change course by agreeing to hear a case involving a tragic miscarriage of justice. Andrew Scott was home playing video games with his girlfriend after midnight on June 15, 2015, when someone began pounding on the door to his apartment. The frightened couple retreated to Scott’s bedroom, where he retrieved his pistol and then made his way back to the living room. Carefully opening his front door, Scott saw an armed man and started to back up. The man immediately fired six shots, striking Scott three times and killing him. The shooter was Lake County, Florida, Sheriff’s Deputy Richard Sylvester, who was investigating an assault and battery involving a dark‐​colored motorcycle several miles away. Seeing a dark‐​colored motorcycle in the parking lot outside Scott’s apartment — but making no effort to connect the motorcycle to the assault or to Mr. Scott — deputies surrounded the unit, drew their weapons, and banged on the door without identifying themselves. When Mr. Scott answered the door with a gun in his hand, as he had a constitutional right to do, Mr. Sylvester shot him dead. Mr. Scott’s parents filed a lawsuit, and the deputies moved to dismiss on the grounds that they had not violated any “clearly established” right and were therefore entitled to qualified immunity. The trial judge and the court of appeals agreed. The Supreme Court should take the case and dial back qualified immunity for three reasons. First, qualified immunity was invented by the Supreme Court out of whole cloth and has no basis statutory text, legislative intent, or sound public policy. Federal law provides that police and other state actors are liable for the deprivation of “any rights.” But the Supreme Court has qualified that standard (hence the term qualified immunity) by substituting the phrase “clearly established” for “any.” That was a blatant act of judicial policymaking, as University of Chicago law professor Will Baude demonstrates in a recent law review article that utterly destroys the originalist pretensions of qualified immunity. Second, the clearly established standard is both malleable and perverse. It is malleable because it asks whether existing case law was sufficiently analogous to put officers on notice that their conduct was illegal. But the answer to that question nearly always be gamed simply by dialing the level of generality up or down. For example, the Sixth U.S. Circuit Court of Appeals issued a decision last week, Latits v. Phillips, in which the judges unanimously agreed that a police officer violated the Constitution by shooting a fleeing suspect, but disagreed as to whether the violation was sufficiently clear to overcome qualified immunity. It all came down to their perception of whether existing case law placed the fact of the violation “beyond debate.” One judge said yes, two said no: case dismissed. The clearly established standard is not just malleable but also perverse because it provides the greatest protection for the worst conduct. Thus, the more outrageous an officer’s actions, the less likely it will be that anyone else has behaved similarly and the harder it will be to find a case on point. Pity the Georgia man who was recently ordered to cut the head off of his own dog by deputies who shot it for being aggressive. If he sues, the deputies might well win precisely because their conduct was so far beyond the pale. Finally and most importantly, qualified immunity sends police officers false signals about the constitutionality of their actions. Think about it from a cop’s perspective: The law says I’m liable for the deprivation of any right; this guy sued me for violating his rights, but the judge tossed the case; ergo, I must not have violated any of his rights. That is a grave mistake for one officer to make in a single case; the consequences when countless officers commit the same fallacy in hundreds of qualified immunity cases across the nation are horrendous. Just ask the parents of Andrew Scott.



The Supreme Court’s Dereliction of Duty on Qualified Immunity
Cato Institute

URL: https://www.cato.org/blog/supreme-court ... d-immunity
Category: Police
Published: June 15, 2020

Description: This morning, the Supreme Court denied all of the major cert petitions raising the question of whether qualified immunity should be reconsidered. This is, to put it bluntly, a shocking dereliction of duty. As Cato has argued for years, qualified immunity is an atextual, ahistorical judicial invention, which shields public officials from liability, even when they break the law. The doctrine not only denies justice to victims whose rights have been violated, but also exacerbates our crisis of confidence in law enforcement. By holding police officers to a far lower standard of accountability than ordinary citizens, qualified immunity deprives the entire law enforcement community of the public trust and credibility they need to do their jobs safely and effectively. There was simply no excuse for the Court to decline this golden opportunity to begin addressing its mistakes in creating and propagating the doctrine of qualified immunity. The petitions before the Court plainly demonstrated both the moral injustices and practical absurdities of the “clearly established law” standard. In Corbitt v. Vickers, for example, the Supreme Court let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten‐​year‐​old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone. And in Baxter v. Bracey, the Court let stand a Sixth Circuit decision which said that a prior case holding it unconstitutional for police to deploy a canine against a suspect who had surrendered by lying on the ground did not “clearly establish” that it was unlawful for police to deploy a canine against a suspect who had surrendered by sitting on the ground with his hands up. Justice Thomas was the only member of the Court who would have granted any of the petitions. He dissented in the Baxter case, writing that “because our § 1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.” It’s especially disappointing that Justice Gorsuch didn’t join this dissent, as he has otherwise demonstrated himself to be a principled advocate of textualism and originalism, and also willing to reconsider misguided precedent. And it’s surprising that Justice Sotomayor had nothing to say regarding these cases, given her previous comments in a dissent (joined by Justice Ginsburg) noting that qualified immunity had become an “absolute shield for law enforcement officers” that has “gutt[ed] the deterrent effect of the Fourth Amendment.” Perhaps one or more of these Justices will agree to hear some future case. But for now, Justice Thomas stands alone. In the tumultuous wake of George Floyd’s brutal death at the hands of Minneapolis police, this development could not come at a worse time. The senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐​zero accountability for law enforcement. And while this culture has many complex causes, one of the most significant is qualified immunity. By effectively rewriting and undermining the civil rights law that was supposed to be our primary means of holding public officials accountable, the Supreme Court shares a huge portion of the blame for our present crisis. It’s impossible to know for sure what motivated the Court to deny all of these petitions. But one possibility is that the Justices were looking closely at developments in Congress—where members of both the House and the Senate have introduced bills that would abolish qualified immunity—and decided to duck the question, hoping to pressure Congress to fix the Court’s mess. It is certainly encouraging that so many legislators have finally turned their attention to qualified immunity. But the mere fact that Congress can fix this mess doesn’t absolve the Supreme Court of its obligation to fix what it broke—the Court conjured qualified immunity out of nothing in the first place, and the Justices had both the authority and responsibility to correct their own blunders, no matter what happens in the legislature. Qualified immunity will go down in history as one of the Supreme Court’s most egregious, costly, and embarrassing mistakes. None of the Justices on the Court today were responsible for creating this doctrine, but they all had a responsibility to fix it—and except for Justice Thomas, they all shirked that responsibility. It is now all the more urgent that Congress move forward on this issue and ensure that all public officials—especially members of law enforcement—are held accountable for their misconduct.



Poll: 63% of Americans Favor Eliminating Qualified Immunity for Police
Cato Institute

URL: https://www.cato.org/publications/surve ... ity-police
Category: Police
Published: July 16, 2020

Description: 62% favor limiting police unions’ collective bargaining power; 55% worry criticism of police could drive up crime
The Cato Institute Summer 2020 National Survey of 2,000 Americans conducted with YouGov finds that nearly two‐​thirds (63%) of Americans support eliminating qualified immunity so that police officers can be sued for misconduct even if there is no previous legal case with similar facts that ruled officers may not engage in that conduct. Thirty‐​seven percent (37%) oppose ending qualified immunity. While once a fairly unknown legal doctrine, nearly half (47%) of Americans say they’ve heard about qualified immunity, while 53% say they have not. Those who have heard of qualified immunity are more in favor of ending it (69% favor) compared to those who had not heard of it before (58% favor). Even in situations where police officers did not know they were breaking the law, Americans say officers should be held accountable. Nearly 8 in 10 Americans (79%) say that if a police officer violates a person’s rights but was “unaware at the time that their actions were illegal” they should be held accountable for that misconduct. Most also believe lawsuits should be on the table. A similar share (77%) say police should not be able to avoid lawsuits for misconduct using ignorance of the law as a defense. Majorities of Black (69%), Latino (69%), and White Americans (62%) support eliminating qualified immunity. However, there is a partisan divide. While majorities of Democrats (79%) and independents (64%) support this, a majority of Republicans (58%) oppose ending qualified immunity. Forty‐​two percent (42%) of Republicans support it. Nevertheless, there is non‐​partisan support for the idea behind reforming qualified immunity. Strong majorities of Republicans (64%), independents (75%), and Democrats (91%) say police officers should be held accountable for misconduct even if they were “unaware at the time that their actions were illegal.”
Ferguson Effect?
Although Americans support ending or reforming qualified immunity for police officers, the public is also worried that intense criticism of the police could drive up crime rates. This is the idea behind the “Ferguson effect,” the theory that distrust of the police makes it difficult for the police to do their jobs, allowing crime to increase. Fifty‐​five percent (55%) believe ending qualified immunity for police would mean that police “may be too afraid to do their jobs effectively because they will fear being sued or harassed.” Similarly, 55% of Americans are worried that more intense criticism of police could disincentivize them from doing their jobs and crime could go up.
Police Unions
Americans are divided but lean in favor of continuing the practice required in many police union contracts of having an arbitrator review firings of police officers. Fifty‐​two percent (52%) favor allowing arbitrators review and sometimes overturn the firings of police officers for misconduct. Nearly as many (48%) oppose. A majority of Republicans (74%) support this practice as do a slim majority of independents (51%). But a strong majority of Democrats (64%) disagree. The public supports other police union reforms. For instance, many police union contracts require that police officers’ records of misconduct be erased every few years. However, 84% of Americans oppose this practice, including 58% who strongly oppose. Opposition is non‐​partisan with 89% of Democrats, 85% of independents, and 76% of Republicans who oppose. Nearly two‐​thirds, 62%, of Americans say police unions should not be allowed to collectively bargain with government officials “over the methods used to hold police officers accountable for misconduct.” Strong majorities of Democrats (71%) and independents (65%) oppose collective bargaining for this purpose. But Republicans stand out. A slim majority (52%) think police unions should get to collectively bargain over disciplinary methods, while nearly as many (48%) oppose.
Defunding the Police
The survey found 57% of Americans oppose “defunding police departments” while 43% favor defunding them. There are stark partisan divisions: 66% of Democrats favor defunding the police, while majorities of independents (62%) and Republicans (85%) oppose. These results indicate a notable shift among Democrats from a month ago when an Economist/​YouGov poll found that 34% of Democrats favored “cutting funding for police departments.”1 Twenty percent (20%) of independents and 11% of Republicans agreed. There is a racial divide as well: a majority (62%) of white Americans and slim majority (51%) of Latino Americans oppose defunding police departments while a majority (61%) of Black Americans support it. The phrase “defund police” has come to mean different things to different people, besides withdrawing all funds from police departments. For instance, the Economist/​YouGov poll found that only 19% of Democrats favor “abolishing the police,” as did 8% of independents and 5% of Republicans. Similarly, smaller shares of White Americans (8%), Black Americans (22%), and Hispanic Americans (20%) support abolishing police. This indicates that for a considerable number of people defunding the police is about reducing their funding, or redesigning their structure, rather than disbanding police altogether.
Experience with the Police
About 1 in 10 Americans (12%) say they personally have been physically mistreated or abused by a police officer, a quarter say they know someone who has. There is a stark racial divide in reported experiences with the police. Black (19%) and Hispanic Americans (17%) are more than twice as likely as White Americans (8%) to say they personally have been physically abused by police. When taking into account social networks, 44% of Black Americans and 38% of Hispanic Americans say they or someone they know has been abused by police, compared to 28% of White Americans.
Perceptions of Excessive Force
The survey found that Americans believe that about 25% of police officers regularly use excessive force when carrying out their duties. Perceptions vary widely across partisan and racial/​ethnic groups. White Americans think about 20% of police on average use too much force, while Black Americans think about 50% of police use excessive force. Latino Americans think the share is 45% of police. Republicans think far fewer police officers engage in routine misconduct, estimating that about 10% do. In contrast, Democrats (40%) and independents (30%) estimate significantly more police routinely use excessive force. The survey also asked the public about their perceptions about what they believed was the primary reason the police arrest disproportionately more African Americans: 40% said racial bias in either policing (30%) or the laws that police enforce (10%), 38% said different crime rates among different racial groups, 13% said different poverty levels among different groups, and 9% said some other reason. There are significant age differences in perceptions. A majority (52%) of Americans under 35 say racial bias is the primary cause of disparate arrest rates, while 26% say different crime rates, and 13% say different poverty levels. About half (49%) of Americans over 55 believe different crime rates are the primary cause, 31% say racial bias, and 11% say different poverty levels. Democrats view racial bias as the primary cause (64%), while 19% say different crime rates and 12% say different poverty levels. Republicans see things differently: 66% say different crime rates, 12% say racial bias, 10% say different poverty levels are the primary reason. There is a racial divide in perceptions as well. Among White Americans: 32% say systemic racism is the primary cause, 45% say different crime rates, 12% say different poverty levels. Black Americans have a different view: 77% say it’s due to racial bias in policing and the legal system, 9% say different crime rates among different racial groups, 9% say different poverty levels. Latinos are in between with 43% who say racism, 33% say different crime rates, and 17% say different poverty levels are the primary cause.
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To Restore Accountability for Police Abuse, Reform of “Qualified Immunity” Is Overdue

Postby smix » Thu May 14, 2020 12:26 am

To Restore Accountability for Police Abuse, Reform of “Qualified Immunity” Is Overdue
Constitutional Accountability Center

URL: https://www.theusconstitution.org/blog/ ... s-overdue/
Category: Police
Published: April 17, 2020

Description: Whenever the Senate holds confirmation hearings to fill a Supreme Court vacancy, nominees invariably profess that a Justice’s role is to interpret the laws and the Constitution as written, not to rule based on their own preferences—as Chief Justice John Roberts famously put it, “to call balls and strikes and not to pitch or bat.” For decades, though, the Court has prevented one of the nation’s landmark civil rights laws from functioning as it is written, while acknowledging that it has taken this course to promote its own views of good policy. The Court has achieved this goal through the doctrine of “qualified immunity,” a set of judge-made rules that lack any foundation in the text of this important law and that hinder its basic purpose. But a new case the Court is being asked to consider provides an opportunity to reform that doctrine and restore fidelity to the law. Under 42 U.S.C. § 1983, a person whose constitutional rights were violated by state or local officials can sue those officials in federal court for damages. Congress enacted this law nearly a century and a half ago to deter constitutional violations by imposing financial liability on the offenders. Yet the modern Supreme Court has made it nearly impossible for many victims to seek redress under Section 1983. The qualified immunity doctrine now enables officials to have such suits dismissed at the outset, as long as their conduct did not violate “clearly established statutory or constitutional rights.” In practice, this has come to mean that injured plaintiffs cannot proceed with their suits unless they can point to a prior decision establishing that precisely the same conduct violates the law. Worse still, when a court determines that the illegality of an official’s conduct is not “clearly established,” the court can dismiss the suit without determining whether that conduct actually violated the law. This means that the next time an official harms someone through the same conduct, there will still be no clearly established law for the victim to rely on—and it will still be impossible to hold anyone liable for violating the Constitution. Qualified immunity allows many types of government illegality to go unchecked, but its effects are especially pernicious when it comes to unjustified shootings and other abuses committed by police officers. These types of incidents involve a myriad of factual variations, making it extremely difficult for victims to identify a previous case involving the exact same scenario. The result is a nearly impenetrable barrier to recovery for people who are harmed without justification during police encounters—even though such violence can be an unreasonable “seizure” under the Fourth Amendment. And because states and localities rarely have to shell out money in damages for the actions of their law enforcement officers, they have little financial incentive to institute the kinds of trainings and policies that might prevent unnecessary shootings and other incidents of excessive force. As Justice Sonia Sotomayor put it in a dissent, qualified immunity has become “an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.” A new case that the Court is being asked to review illustrates just how high the barriers to recovery have become. After police officers searched the homes and business of Micah Jessop and Brittan Ashjian, more than $100,000 in cash and $125,000 in rare coins went missing. No criminal charges were ever filed against Jessop or Ashjian, and based on this apparent theft by police they brought a Section 1983 lawsuit against the City of Fresno and the officers—one of whom was later sentenced to prison for extorting bribes in another case. But the U.S. Court of Appeals for the Ninth Circuit held that qualified immunity prevented the officers from being sued. According to that court, it is not “clearly established” that stealing money and property while executing a search warrant violates the Fourth Amendment. Jessop and Ashjian have now asked the Supreme Court to review that decision. Their case is so egregious that the Court could reverse the Ninth Circuit even under existing qualified immunity standards: as the Court has said, some things are so obviously illegal that “even in novel factual circumstances … officials can still be on notice that their conduct violates established law.” Nevertheless, the Ninth Circuit’s decision is a predictable result of a qualified immunity doctrine that was designed to bend over backwards in service of shielding government officers from accountability. As CAC has explained in an amicus brief we filed earlier this week supporting review of that decision, modern qualified immunity doctrine subverts the text and purpose of Section 1983. After the Civil War, recalcitrant Southern states facilitated widespread persecution of formerly enslaved people and their allies, who were subjected to violence, theft, and other abuses at the hands of police officers, militias and mobs. At the time, the Constitution’s Bill of Rights restricted only the federal government, so in response to these horrendous abuses the nation ratified the Fourteenth Amendment, which “fundamentally altered” the federal system by requiring states to respect constitutional protections for individual liberties. Even that turned out to be insufficient, however. Southern states continued permitting the rights of citizens to be “systematically trampled upon,” in the words of one Congressman. In response, Congress enacted the Civil Rights Act of 1871, the first section of which is now 42 U.S.C. § 1983. To safeguard fundamental liberties, lawmakers resolved to “throw open the doors of the United States courts to those whose rights under the Constitution are denied or impaired.” Because Congress could not “compel proper legislation and its enforcement” in Southern states, it decided that “the injured party should have an original action in our Federal courts.” In short, Congress enacted Section 1983 to deter constitutional violations, expecting that the law would be interpreted broadly to promote its goals. And the text of the statute provides no immunities of any kind. The common law of that era did grant immunity to people performing certain types of government functions—to judges, for instance—and Congress may have intended for Section 1983 to incorporate these well-established rules. But those rules did not provide any general immunity to police officers, or anything remotely resembling modern qualified immunity doctrine. To the contrary, government officers traditionally were held liable for tort damages when they committed unlawful injuries, regardless of any excuse or justification they might offer, a rule the Supreme Court itself applied as far back as 1804. Today’s qualified immunity doctrine, therefore, cannot be justified by the text, history, or purpose of Section 1983. And indeed, the Supreme Court has been remarkably “forthright” in acknowledging where the doctrine actually does come from: the Justices’ own policy preferences. Majorities on the Court have long disliked subjecting police officers to suit, and the “driving force” behind modern qualified immunity has been their desire that “insubstantial claims” against officers be resolved as quickly as possible. In pursuing that goal, the Court has strayed far from the text of Section 1983, transforming the statute into something that would be unrecognizable to the Congress that enacted it. If the Justices believe in textualism and original meaning, and in their limited role as neutral umpires, then reform is long overdue. The Court should take steps toward restoring the robust civil remedy that Congress enacted Section 1983 to provide, and it can start by accepting the Jessop case for review.
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Federal Judge Asks Supreme Court to Overturn Qualified Immunity

Postby smix » Thu Aug 06, 2020 12:02 am

Federal Judge Asks Supreme Court to Overturn Qualified Immunity
Newsmax

URL: https://www.newsmax.com/politics/qualif ... /id/980752
Category: Police
Published: August 5, 2020

Description: A Mississippi federal judge is asking the U.S. Supreme Court to strike down qualified immunity, a legal doctrine that protects police officers from civil suits over abuse. U.S. District Court Judge Carlton Reeves sits on the federal bench in the Southern District of Mississippi and dismissed a portion of a lawsuit that claimed a white police officer violated the Fourth Amendment rights of a Black motorist. Reeves criticized qualified immunity, which forced him to exonerate the officer. "This Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity," Reeves wrote in a 72-page opinion. "The officer’s motion seeking as much is therefore granted. "But let us not be fooled by legal jargon," he continued. "Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine." South Carolina resident Clarence Jamison claims that officer Nick McClendon violated his constitutional rights after pulling him over in Pelahatchie, Mississippi, and searching his car for drugs without any basis for suspicion. "I do not envy the task before the Supreme Court," Reeves wrote. "Overturning qualified immunity will undoubtedly impact our society. Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of 'separate but equal,' so too should it eliminate the doctrine of qualified immunity." Qualified immunity has been the topic of debate and target of criticism since the death of George Floyd, a Black man who died in the custody of a white Minneapolis police officer. Its critics have said the doctrine unfairly shields police officers who've committed wrongdoing against citizens from facing civil punishment. The only way qualified immunity can be toppled in court is if a clear legal precedent shows that the officer's conduct was illegal. "Governing law requires that Officer McClendon be given qualified immunity in this case, regardless of whether there was a constitutional violation,"McClendon's defense attorney said during a 2018 court filing. Reeves said he couldn't punish McClendon because qualified immunity doctrine blocked him from doing so. But he urged the Supreme Court to remove the shield that protects officers who commit wrongdoing on the job. "Those who violate the constitutional rights of our citizens must be held accountable," Reeves wrote. "When that day comes we will be one step closer to that more perfect Union."
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