Patterico's Pontifications

6/3/2020

Justin Amash To Introduce Qualified Immunity Act

Filed under: General — Dana @ 8:09 am



[guest post by Dana]

Over the past few days, we’ve been discussing the possibility of eliminating qualified immunity, and what that might look like. Here is what Amash is introducing:

As part of the Civil Rights Act of 1871, Congress allowed individuals to sue state and local officials, including police officers, who violate their rights. Starting in 1967, the Supreme Court began gutting that law by inventing the doctrine of qualified immunity.

Under qualified immunity, police are immune from liability unless the person whose rights they violated can show that there is a previous case in the same jurisdiction, involving the exact same facts, in which a court deemed the actions to be a constitutional violation.

This rule has sharply narrowed the situations in which police can be held liable—even for truly heinous rights violations—and it creates a disincentive to bringing cases in the first place.

If a plaintiff knows there is no prior case that is identical to theirs, they may decline to even file a lawsuit because they are very unlikely to win.

Even if a plaintiff does file a case, a judge may dismiss it on qualified immunity grounds and decline to decide whether the plaintiff’s rights were violated, meaning the constitutional precedent still isn’t established and so the next plaintiff still can’t recover.

This can create a permanent procedural roadblock for plaintiffs, preventing them from obtaining damages for having their rights violated.

Qualified immunity was created by the Supreme Court in contravention of the text of the statute and the intent of Congress. It is time for us to correct their mistake.

My bill, the Ending Qualified Immunity Act, does this by explicitly noting in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability.

The brutal killing of George Floyd by Minneapolis police is merely the latest in a long line of incidents of egregious police misconduct.

This pattern continues because police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve. That must change so that these incidents of brutality stop happening.

Until then, we must ensure that those whose rights are violated by police aren’t forced to suffer the added injustice of being denied their day in court.

–Dana

UPDATE BY PATTERICO: I agree with Amash on many things but completely eliminating qualified immunity is not one of them. I understand his position is popular on the Internet — indeed, supporting law enforcement is not popular, because radical leftists are anti-law enforcement, and our criminal president has undermined respect for the rule of law on the right. But it is not immediately clear to me that it is a good idea to force police officers to defend themselves against claims that fail to establish they unreasonably violated a clearly established constitutional right. The doctrine might need some reining in. It should not be eliminated.

111 Responses to “Justin Amash To Introduce Qualified Immunity Act”

  1. Good morning.

    Dana (0feb77)

  2. This is a good idea. I hope it gets a vote.

    Time123 (9f42ee)

  3. This sounds like a good start.

    John B Boddie (f44786)

  4. Sounds like a grandstanding play by a soon to be ex-congressman. No dobut Amash is looking forward to a CNN Gig. We don’t need to change anything. We have 1,000 crooks killed annually by the police every year for the last 5 years. There hasn’t been an explosion of police killings. That’s a fact. You know how many of those 5,000 crooks killed were black? 25% How many were white? 45%

    How many black unarmed crooks have been killed by the police 2015-2019? About 100. That’s 25 a year. We need to overturn hundreds of years of police immunity for 35 people a year. And we Certainly don’t need the Federal Govt to do it.

    Note – All stats from that “Right wing” Washington Post database.

    rcocean (2e1c02)

  5. Its always amazing how you scratch a libertarian, and you find a liberal underneath. It never fails.

    rcocean (2e1c02)

  6. UPDATE BY PATTERICO: I agree with Amash on many things but completely eliminating qualified immunity is not one of them. I understand his position is popular on the Internet — indeed, supporting law enforcement is not popular, because radical leftists are anti-law enforcement, and our criminal president has undermined respect for the rule of law on the right. But it is not immediately clear to me that it is a good idea to force police officers to defend themselves against claims that fail to establish they unreasonably violated a clearly established constitutional right. The doctrine might need some reining in. It should not be eliminated.

    Patterico (115b1f)

  7. [Ignoring the ignoramus.]

    Good for Justin. I was flabbergasted at the oral arguments of the “Bongs For Jesus” case, and Scalia’s remarks to the effect that a high school principal needed a court precedent to tell her what the kindergartners in her school know: “Keep your hands to yourself!”

    nk (1d9030)

  8. Patterico, you wrote

    The doctrine might need some reining in. It should not be eliminated.

    If you feel that Amash’s proposal goes too far what would recommend as a more appropriate reform?

    Time123 (cd2ff4)

  9. Which is to say that although Justin is using George Floyd as his hook, it will apply much more broadly than that. From Sheriff Clark’s prisoner who was locked up without water and died of thirst, to the nurse suspected of Ebola she did not have who was locked up in a plastic bubble in the middle of a hospital floor, and can any deniers here think of any coronavirus-related violations of people’s civil rights by the police? Hmm? Can you?

    nk (1d9030)

  10. RCoceean,

    Try to at least be consistent with the facts that are clearly stated in the post.

    You wrote

    How many black unarmed crooks have been killed by the police 2015-2019? About 100. That’s 25 a year. We need to overturn hundreds of years of police immunity for 35 people a year. And we Certainly don’t need the Federal Govt to do it.

    From the post

    Starting in 1967, the Supreme Court began gutting that law by inventing the doctrine of qualified immunity.

    Time123 (cd2ff4)

  11. Patterico –

    I’d love to hear your thoughts on what you think a reform would look like, that (a) provided cops with the freedom of motion they need to do their job, while (b) providing an actual, functional mechanism to take bad cops off the street.

    In any case, QI is classic judicial activism. If you pass a law telling them to stop, they’ll invent a new mechanism.

    john (cd2753)

  12. #10 As usual, you have nothing of interest to say on the subject at hand, but simply quibble over how years we’ve had immunity for police. Here’s a cookie. well done.

    rcocean (2e1c02)

  13. Who do you think would be stupid enough to sign up for police work under these conditions?

    beer ‘n pretzels (b2a70c)

  14. We expect the police to go into harm’s way and we give them qualified immunity to protect them when they do it (and also to protect the sovereign treasury if they hurt someone). Training helps but there is no magic bullet that will prevent police mistakes or wrongdoing. Eliminating qualified immunity will make it easier for people to make successful claims but it won’t reform the police. It will make the police less willing to act, which is want ANTIFA and looters want.

    DRJ (15874d)

  15. What I would like to see is the proper level of law enforcement held accountable:

    1 – Prosecutors who do not push for the maximum sentences;
    2 – Judges who do not impose the maximum sentences; and
    3 – Probation and Parole Boards who release criminals before the completion of their sentences

    should be held accountable for any crimes committed by someone who was in their hands and previously convicted for a crime for which he did not serve the maximum sentence allowed by law within the period of that maximum sentence.

    How many heard of murders or rapes or robberies being committed by someone who should still have been in prison had he been treated seriously by law enforcement.

    The Dana in Kentucky (6a5316)

  16. Section 1983 is for state officials. Bivens is for federal officials. Could the bill be extended to Bivens actions, so that K. T. McFarland could sue Robert Mueller for serving her Evian instead of Perrier at her interviews? Or not, since Bivens is judge-made not statutory?

    (Yes, yes, I am tweaking the Trumpkins who are constantly grievancing about the way the FBI juiced their orange.)

    nk (1d9030)

  17. I would have more faith in the system if the internal police disciplinary system and judicial system didn’t look the other way, or issue way too many slap on the wrists, for bad police officers.

    Since they can’t police themselves, maybe the loss of immunity will help them.

    Hoi Polloi (7cefeb)

  18. I am curious why people are so sure there is universally poor oversight, sanctions and/or penalties for police misconduct.

    DRJ (15874d)

  19. It will make the police less willing to act, which is want ANTIFA and looters want.

    DRJ (15874d) — 6/3/2020 @ 9:08 am

    Many of the same people pushing for this reform are demanding my city drastically reduce the budget for the police department and stop hiring more officers (we’re hundreds short). That means no cops available for community work because they are constantly just trying to stay afloat on their best day.

    I don’t have to walk y’all through what this means. Communities will pay, cops will be crappier, justice will certainly not be achieved.

    I agree that reforms are needed. I also think that people rolling their eyes at the idea removing some legal protection would keep quality candidates from becoming cops are very wrong. I recommended such people go ahead and apply to be police officers, same as I hope all activists demanding better policing do. I don’t say that obnoxiously. I really think that’s how to fix the problem. Many communities are hurting for intelligent, honest people to keep them safe, demanding someone do it, and also making it hard to do. If you read Reason.com, being a cop is not dangerous, it’s overpaid, it’s easy, and most situations where a cop makes a mistake could be easily handled better. It’s time for such people to fill the desperate need in our communities for these improved cops.

    Dustin (d59cff)

  20. I don’t believe any “reforms” are needed. Nothing in the Floyd case, shows that “reforms” are required. The Ferguson policeman who was slandered and villified had his life destroyed for simply defending himself against Mr. Brown. The four policeman involved in the Floyd death have been fired, and Chauvin is awaiting trial.

    As stated before, the number of unarmed crooks killed by the police every year in country of 320 million is absurdly low. Its about 100 a year per the WaPo database. Almost all of them resulted in the police being found not guilty of any criminal wrongdoing.

    We don’t need to change qualified immunity. or “fix” something that’s not broken.

    rcocean (846d30)

  21. How bout this, as a middle ground: eliminate qualified immunity in cases where state actors cause death and/or serious bodily injury. Let those cases be adjudicated on their merits.

    Leviticus (efada1)

  22. Police should have serious disincentive to hurt or kill people.

    Leviticus (efada1)

  23. You need who needs to fix ‘qualified immunity’? The SCOTUS. As usual, over the years they’ve twisted and turned in this case and that, so that you now have a Judicial doctrine that needs to be made clear and consistent with bright lines.

    rcocean (846d30)

  24. #10 As usual, you have nothing of interest to say on the subject at hand, but simply quibble over how years we’ve had immunity for police. Here’s a cookie. well done.

    rcocean (2e1c02) — 6/3/2020 @ 9:03 am

    Your point that we didn’t need to do anything is based on two parts.
    1. That there’s no problem with police use of force on black ppl.
    2. That this reform would upend a policing rule that had been in place for the entirety of our nation (hundreds of years).

    what you call a quibble invalidated one of your two justifications.

    Time123 (cd2ff4)

  25. I don’t believe any “reforms” are needed. Nothing in the Floyd case, shows that “reforms” are required. The Ferguson policeman who was slandered and villified had his life destroyed for simply defending himself against Mr. Brown. The four policeman involved in the Floyd death have been fired, and Chauvin is awaiting trial.

    As stated before, the number of unarmed crooks killed by the police every year in country of 320 million is absurdly low. Its about 100 a year per the WaPo database. Almost all of them resulted in the police being found not guilty of any criminal wrongdoing.

    We don’t need to change qualified immunity. or “fix” something that’s not broken.

    rcocean (846d30) — 6/3/2020 @ 9:36 am

    And uses of force, or other violation in civil rights that don’t result in death?

    Time123 (cd2ff4)

  26. Police should have serious disincentive to hurt or kill people.

    Absolutely. And then there’s the real world.

    Who would sign up to put their lives in danger daily under such conditions? Would you?

    beer ‘n pretzels (6bee5a)

  27. Good for Amash. It’s a decent place to start, and I’m glad he put it out there, but it doesn’t make up for his bad decision to not run for prez.

    Paul Montagu (466a99)

  28. beer ‘n pretzels (6bee5a) — 6/3/2020 @ 9:46 am

    Who would sign up to put their lives in danger daily under such conditions? Would you?

    Maybe the same type of people who signed up prior to 1967.

    frosty (f27e97)

  29. “Who would sign up to put their lives in danger daily under such conditions? Would you?”

    – beer ‘n pretzels

    No. I have no interest in policing others. But maybe the folks who sign up to be firefighters, paramedics, social workers, nurses, or a dozen other professions dangerous professions where you’re not allowed to kill the people you interact with just because you are scared?

    Leviticus (efada1)

  30. Its about 100 a year per the WaPo database

    First, how do you know they were all crooks?

    Second, did it ever occur to you that maybe the figure we want is 0 per year, and that 100 per year is 100 too many?

    Kishnevi (2f77b7)

  31. Meanwhile the Police State and Executive Power are ever-expansive:

    “The Drug Enforcement Administration has been granted sweeping new authority to “conduct covert surveillance” and collect intelligence on people participating in protests over the police killing of George Floyd, according to a two-page memorandum obtained by BuzzFeed News.”

    https://www.documentcloud.org/documents/6935297-LEOPOLD-DEA-Memo-George-Floyd-Protests.html

    JRH (52aed3)

  32. beer ‘n pretzels (6bee5a) — 6/3/2020 @ 9:46 am

    Who would sign up to put their lives in danger daily under such conditions? Would you?

    Maybe the same type of people who signed up prior to 1967.

    frosty (f27e97) — 6/3/2020 @ 9:55 am

    LMAO

    Time123 (cd2ff4)

  33. Eliminating qualified immunity may or may not set the scales of justice into greater balance but whether you do it or not, it’s still ignoring the main causes of the pathologies in the community (including bad/incompetent cops).

    As a veteran of the civil rights movement, one of the great promises we gave to lower-income blacks is that if you were to elect blacks to public office through voting rights acts, and we were running those institutions, that all of black America would be better off.

    In the past 50 years $22 trillion has been spent on poverty programs; 70% goes not to the poor but those who serve poor people. So many of those people taking office used this money to create a class of people who are running these cities. And now, after 50 years of liberal Democrats running the inner cities where we have all of these inequities that we have, race is being used as a ruse, as a means of deflecting attention away from critical questions, such as: Why are poor blacks failing in systems run by their own people if race was an issue, even in the criminal justice system?“ – Bob Woodson, former head of the National Urban League Department of Criminal Justice

    https://www.dailywire.com/news/watch-former-head-of-national-urban-league-department-of-criminal-justice-rips-rioters-liberal-democrats-eric-holder-race-is-being-used-as-a-ruse
    _

    harkin (9c4571)

  34. How bout this, as a middle ground: eliminate qualified immunity in cases where state actors cause death and/or serious bodily injury. Let those cases be adjudicated on their merits.

    Leviticus (efada1) — 6/3/2020 @ 9:37 am

    I think that would be worth a try in death cases. I think the possibility that serious injury could lead to death would be sufficient to alter behavior.

    Including “serious bodily injury” effectively means any injury, so it would eliminate immunity.

    DRJ (15874d)

  35. Interesting idea, Leviticus. Thank you.

    DRJ (15874d)

  36. How bout this, as a middle ground: eliminate qualified immunity in cases where state actors cause death and/or serious bodily injury. Let those cases be adjudicated on their merits.

    I think that this is a good middle ground starting point. The tendency to over-correct because of the upheaval we are experiencing could quite possibly be more damaging in the long run.

    Dana (0feb77)

  37. JRH (52aed3) — 6/3/2020 @ 9:58 am.

    I think that was the point of designating this domestic terrorism. It opens the door to existing federal powers from the Patriot Act.

    DRJ (15874d)

  38. JRH, there was also DOJ Proposed Suspending Constitutional Rights During Coronavirus.

    It’s true DOJ has proposed legislation that would grant nationwide authority to federal judges to extend deadlines and pause or suspend statutes of limitation, which are essentially court-case deadlines that afford the accused speedy trials. The DOJ, which consists of federal litigators, is part of Republican President Donald Trump’s executive branch. However, per a DOJ statement, these proposed powers would not be conferred upon the executive branch. The proposal would apply to federal district judges and would expire with the end of the national emergency brought by the pandemic.

    Whether the proposal will be adopted is unknown, and it would have to clear a Democratic-controlled U.S. House of Representatives first.

    Colonel Klink (Ret) (305827)

  39. @4-rcocean: Remember this case?:

    Police Owe Nothing To Man Whose Home They Blew Up, Appeals Court Says

    An armed shoplifting suspect in Colorado barricaded himself in a stranger’s suburban Denver home in June 2015. In an attempt to force the suspect out, law enforcement blew up walls with explosives, fired tear gas and drove a military-style armored vehicle through the property’s doors.

    After an hours-long siege, the home was left with shredded walls and blown-out windows. In some parts of the interior, the wood framing was exposed amid a mountain of debris.

    A federal appeals court in Denver ruled this week that the homeowner, who had no connection to the suspect, isn’t entitled to be compensated, because the police were acting to preserve the safety of the public.

    “Under no circumstances in this country should the government be able to blow up your house and render a family homeless,” Leo Lech, the house’s owner, told NPR. “This family was thrown out into the street without any recourse.”
    ……

    Rip Murdock (80e6b4)

  40. Also, reining in the power of police unions in order to make it easier to terminate bad cops would seem another viable avenue of reform.

    Dana (0feb77)

  41. I think that was the point of designating this domestic terrorism. It opens the door to existing federal powers from the Patriot Act.

    DRJ (15874d) — 6/3/2020 @ 10:12 am

    Within the Patriot Act there is no mention of an ability to designate any group a terrorist, foreign or domestic, since there are other laws that define that.

    Section 8 would have some teeth around “harboring or providing economic or material support” of folks that are helping a designated terrorist organization.

    Generally I think this whole line of thought comes from the muddy brain of DJT, he’s done with it now, he said it, so he assume it’s now the law of the land. Everyone else continues to follow the constitution as best as they can.

    Some don’t do a great job, basically the cabinet officers, lower level line leadership seems to ignore most of the idiotic things Trump says, but sometimes a bit leaks through, like roughing up the protesters in Lafayette Park, they weren’t all choirboys, but 99% were according to the video and your own eyes. Then the cover up that they didn’t use “tear gas” came, tear gas is a generic description of a category of products called lachrymator agents, the primary one being Pepper Spray. They thing the park police said they did use.

    Colonel Klink (Ret) (305827)

  42. Court Rules Cop Who Shot Unarmed 15-Year-Old Is Protected by Qualified Immunity

    A panel of judges for the U.S. Court of Appeals for the 9th Circuit has ruled that an officer with the Los Angeles Police Department (LAPD) is protected by qualified immunity after shooting a 15-year-old boy as he made his way to school. ….
    ….
    The panel for the U.S. Court of Appeals for the 9th Circuit wrote in summary that the shooting violated Green’s due process rights. “Under the circumstances, a rational finder of fact could find that Gutierrez’s use of deadly force shocked the conscience and was unconstitutional under the Fourteenth Amendment,” they said. Even so, “the panel held that because no analogous case existed at the time of the shooting, the district court erred by denying Gutierrez qualified immunity for this claim.”

    Two Cops Were Given Qualified Immunity After Allegedly Stealing $225,000. SCOTUS Won’t Hear the Case.

    Last year, the U.S. Court of Appeals for the 9th Circuit Court decided that two police officers in Fresno, California, who allegedly stole more than $225,000 in assets while executing a search warrant, could not be sued over the incident. Though “the City Officers ought to have recognized that the alleged theft was morally wrong,” the unanimous 9th Circuit panel said, the officers “did not have clear notice that it violated the Fourth Amendment.”
    …..
    Prison Guard Who Hid While Inmate Raped a Nurse Cannot Be Sued, Federal Court Rules
    A federal court has ruled that a prison guard who flouted protocol and unshackled an inmate, who then terrorized a local hospital, cannot be sued in connection with the incident.

    Writing for a unanimous three-judge panel, Judge Frank H. Easterbrook of the U.S. Court of Appeals for the 7th Circuit Court ruled that while the officer, Shawn Loomis, is a “feckless coward,” current case law has not “clearly established that permitting a prisoner to escape violates the Constitution.” Loomis is thus protected by qualified immunity, a legal doctrine which effectively holds that public servants can only face civil suits if the conduct in question has explicitly been ruled unconstitutional in an earlier case.
    …….
    Contrary to rcocean’s claim, qualified immunity just doesn’t protect killer cops.

    Rip Murdock (80e6b4)

  43. Maybe so, Colonel. The ACLU has a different view:

    Section 802 of the USA PATRIOT Act (Pub. L. No. 107-52) expanded the definition of terrorism to cover “”domestic,”” as opposed to international, terrorism. A person engages in domestic terrorism if they do an act “dangerous to human life” that is a violation of the criminal laws of a state or the United States, if the act appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping. Additionally, the acts have to occur primarily within the territorial jurisdiction of the United States and if they do not, may be regarded as international terrorism.

    Section 802 does not create a new crime of domestic terrorism. However, it does expand the type of conduct that the government can investigate when it is investigating “terrorism.” The USA PATRIOT Act expanded governmental powers to investigate terrorism, and some of these powers are applicable to domestic terrorism.

    I think Barr’s DOJ agrees with the ACLU.

    DRJ (15874d)

  44. “I think that would be worth a try in death cases. I think the possibility that serious injury could lead to death would be sufficient to alter behavior.”

    Including “serious bodily injury” effectively means any injury, so it would eliminate immunity.”

    – DRJ

    Since we are probably talking about a statutory fix, I think “serious bodily injury” could be sufficiently defined and constrained: broken bones, paralysis, coma, etc.

    There is the deterrence aspect of the fix, but there is also the compensatory aspect of the fix. Your proposal would create significant deterrence, I think, but would not satisfy the compensatory need when the deterrent failed.

    Leviticus (efada1)

  45. Then make the statutory fix specific like a tort claims act, not a change in the overall immunity concept.

    DRJ (15874d)

  46. “We don’t need to change qualified immunity. or “fix” something that’s not broken.”

    – rcocean

    “You [know] who needs to fix ‘qualified immunity’? The SCOTUS… you now have a Judicial doctrine that needs to be made clear and consistent with bright lines.”

    – rcocean literally three minutes later

    Leviticus (efada1)

  47. In other words, legislatively carve out the claims that immunity will no longer cover, but leave the concept of immunity in place. It will be easier to modify that legislation if needed, but it won’t be easy to tinker with qualified immunity in general.

    DRJ (15874d)

  48. “Then make the statutory fix specific like a tort claims act, not a change in the overall immunity concept.”

    – DRJ

    I’d be fine with that, generally speaking.

    I don’t necessarily like the implications of putting “qualified immunity” alongside “sovereign immunity.” It has morphed into something close to that, though.

    Leviticus (efada1)

  49. There was a time when the federal government refused to pay if one of its employees (like Post Office vehicles) caused car wrecks. So they passed the Federal Tort Claims Act in 1946 to remedy that. Something like that, maybe?

    DRJ (15874d)

  50. More data around the problem.

    About 20 percent of Minneapolis’s population of 430,000 is black. But when the police get physical — with kicks, neck holds, punches, shoves, takedowns, Mace, Tasers or other forms of muscle — nearly 60 percent of the time the person subject to that force is black.

    …All of that means that the police in Minneapolis used force against black people at a rate at least seven times that of white people during the past five years.

    David Schultz, a professor at Hamline University in St. Paul who has studied local police tactics for two decades.

    “It just mirrors the disparities of so many other things in which Minneapolis comes in very badly,” Mr. Schultz said.

    When he taught a course years ago on potential liability officers face in the line of duty, Mr. Schultz said, he would describe Minneapolis as “a living laboratory on everything you shouldn’t do when it comes to police use of force.”

    Time123 (b0628d)

  51. Also, reining in the power of police unions in order to make it easier to terminate bad cops would seem another viable avenue of reform.

    Dana (0feb77) — 6/3/2020 @ 10:25 am

    This is key! I think it needs to go a step further. Police departments should not be penalized by state commissions and unemployment insurance for firing people, even if they can’t clearly prove misconduct but have a bad apple in some grey area. And there needs to be some way to stop bad cops from simply moving to another jurisdiction.

    Since we are probably talking about a statutory fix, I think “serious bodily injury” could be sufficiently defined and constrained: broken bones, paralysis, coma, etc.

    I guess it’s nit picking but the SBI language just doesn’t work because even with your stipulation that would instantly be undone in a liberal jurisdiction. In Texas SBI means almost any real harm. I think this might be a good idea to allow suits when harm above a certain level and be demonstrated. Remember, this would still be ‘qualified immunity’. We’re just changing what’s qualified, reigning in the concept somewhat. However, I also want to point out that almost all the examples of why we need to get rid of qualified immunity, like Amash talking about George Floyd or nk talking about someone dying of thirst… these aren’t reasonable actions be cops (or jailers) and shouldn’t be protected by qualified immunity already. I think almost all the time someone actually dies wouldn’t get the protection.

    So much of police reform boils down to hiring good people, but a lot of it also boils down to funding. Police departments do weird things to generate revenue, ranging from traffic enforcement strategies to making units to get grants. These initiatives take people away from walking a beat and talking to their community, but they also steer the definition of the department. Maybe in a lot of places, a great cop is a guy who writes 25 tickets to people commuting to and from their jobs every day. Or it’s someone who knows how to write a great grant request (I worked with such an officer and I’ve literally never seen him interact with a criminal).

    In this economy, business needs to be protected and cops should be outside, patrolling, talking to people. They should want to do that. A lot of cops don’t. People who really feel passionate about improving the profession should do it.

    Dustin (d59cff)

  52. Except for this phrase: our criminal president has undermined respect for the rule of law on the right I agree with Patterico. The respect for the law on the Right was severely wounded by earlier presidents, notably Clinton, Nixon and Johnson. Trump may have provided the coup de grace, but the patient was already at death’s door.

    But that aside, the idea is to prevent police, officers of the court, and some other officials, from being subjected to harassment suits that will make their jobs impossible and will drive individuals out of public service. Sarah Palin’s resignation as AK governor reflects this danger.

    There are serious problems with the current interpretation, particularly in egregious cases (the Floyd case, prosecutors who hide exculpatory information, officials abusing their authority for personal reasons, etc). Some of this can be dealt with through criminal law, but some of it never is. The government entity should always remain liable, and courts shouldn’t dismiss due to lack of identical precedent — the Cath-22 there is obvious.

    But, as in most cases, all-or-nothing presents 2 bad choices. I’ve had enough of bad choices of late.

    Kevin M (ab1c11)

  53. Its always amazing how you scratch a libertarian, and you find a liberal underneath. It never fails.

    What do you find when you scratch a Trump partisan?

    Kevin M (ab1c11)

  54. Trump calls for Supreme Court to reconsider flag burning laws

    Classic election-year shiny object to manipulate the base and distract from his failures.

    I predict it won’t work.

    Dave (1bb933)

  55. Starting in 1967, the Supreme Court began gutting that law by inventing the doctrine of qualified immunity.

    Hmmm … I’d say the Supreme Court BEGAN gutting the Reconstruction-era civil rights laws about 1876, with Cruikshank.

    Kevin M (ab1c11)

  56. @53, I agree with you that we need a way to hold people who make horrible mistakes accountable without allowing them to be harassed by frivolous lawsuits. Seems like a solvable problem.

    Time123 (cd2ff4)

  57. Classic election-year shiny object to manipulate the base and distract from his failures.

    I think he’d get more traction from anti-blasphemy laws.

    Kevin M (ab1c11)

  58. Dustin, along with reining in the power of police unions, I’m also considering the viability and possible benefits of having some sort of unified, national standard on police use of force, and putting an end civil asset forfeiture.

    Dana (0feb77)

  59. Prosecutors who do not push for the maximum sentences

    Not all crimes are equal. I for one WANT the system to be able to make judgements. My real problem with discretion is when it is abused to favor or disfavor people for political reasons. Sandy Berger should have done hard time for destroying a document sought by a national commission; Daniel D’Souza should have been convicted of a misdemeanor and served probation for his meaningless offense. Prosecutors should have been fired in both cases.

    Kevin M (ab1c11)

  60. putting an end civil asset forfeiture

    This. Asset forfeiture as the result of a (related) criminal conviction should be terrible and swift. Asset forfeiture from an inability to prove innocence is a stain on the Constitution, worse than anything Trump has ever done.

    Kevin M (ab1c11)

  61. Esper probably read the Constitution.

    Art IV, Section 4:

    The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

    Kevin M (ab1c11)

  62. I don’t necessarily like the implications of putting “qualified immunity” alongside “sovereign immunity.” It has morphed into something close to that, though.

    “Executive privilege” has more going for it actually.

    Kevin M (ab1c11)

  63. What I would like to see is a change to court procedure such that when a case is dismissed for qualified immunity, the court is expected to rule on whether the behavior in question violates the constitution.

    Right now there are a lot of situations in which:

    * someone sues
    * qualified immunity
    * someone sues later for essentially indistinguishable conduct in another situation
    * qualified immunity
    * lather, rinse repeat

    if the first case were handled with “qualified immunity BUT this is a constitutional violation and future police are on notice”, a lot of the anger would dissipate.

    aphrael (7962af)

  64. How bout this, as a middle ground: eliminate qualified immunity in cases where state actors cause death and/or serious bodily injury. Let those cases be adjudicated on their merits.

    There are other situations, too. The prosecutor or police officer who destroys or manufactures evidence, and the guy serves 20 years. Lots of people have been sprung from jail due to such misconduct, but I’m pretty sure that few officials have paid the price in civil or criminal court.

    Maybe Nfong and the Duke case, but that’s really really rare.

    Kevin M (ab1c11)

  65. lather, rinse repeat

    Classic “Catch-22″

    Kevin M (ab1c11)

  66. What do you find when you scratch a Trump partisan?

    That’s that stuff they spray on top of Cheetos to make them addictive, it’s part hallucinogen, part Valium, and really orange.

    Colonel Klink (Ret) (305827)

  67. @50: I’ll bet 50% of the population of Minneapolis is male, yet 95% of the time when police use physical force it’s with a male.

    How very profound.

    beer ‘n pretzels (63146f)

  68. 6. The problem with qualified immunity, at least to my mind, is the number of cases with merit that never see the inside of a courtroom. In practice, it makes law enforcement into an elite class of citizens; such thinking is what makes things like the George Floyd incident possible.

    Gryph (08c844)

  69. 72. I’m pretty sure that won’t stop some level of off-label prescribing.

    Gryph (08c844)

  70. @73 Essential Oils and Healing Crystals have never been shown to be effective but they still sell.

    Time123 (cd2ff4)

  71. 74. Given the current state of “scientific” study, I take the conclusions drawn on HCQ with a grain of salt.

    Gryph (08c844)

  72. Time123 (b0628d) — 6/3/2020 @ 10:58 am

    This

    About 20 percent of Minneapolis’s population of 430,000 is black.

    isn’t directly related to

    But when the police get physical — with kicks, neck holds, punches, shoves, takedowns, Mace, Tasers or other forms of muscle — nearly 60 percent of the time the person subject to that force is black.

    and it doesn’t automatically make

    …All of that means that the police in Minneapolis used force against black people at a rate at least seven times that of white people during the past five years.

    proof positive of institutional racism.

    The “nearly 60 percent of the time the person subject to that force” is an oddly worded statement. At first, it sounds like there is a 60/40 split even though only 20% of the population is black. There is a 60/40 split but you have to assume a lot of other statistics to relate it to the 20% of the population number and those assumptions are key to the implication in the seven times statement.

    frosty (f27e97)

  73. In the Lancet study—which was published May 22 and reported by Ars—researchers aimed to provide some clarity of the drugs’ effects in COVID-19 patients. The researchers claimed to do so using the largest set of data to date, involving more than 96,000 hospitalized COVID-19 patients from six continents. According to the authors, a thorough hashing of the data indicated that those taking either hydroxychloroquine or chloroquine had significantly higher risks of death and heart complications compared with COVID-19 patients who did not take either of the drugs.

    The safety issues were concerning enough that on May 26, the World Health Organization announced that it was suspending the use of hydroxychloroquine in its global Solidarity Trial, which is evaluating several potential COVID-19 therapies. Regulators in the UK and France also changed their recommendations surrounding the drugs.

    Amid the global influence, outside researchers began closely examining the data behind the study—or at least tried to do so—and have been left concerned.

    https://arstechnica.com/science/2020/06/doubt-looms-over-hydroxychloroquine-study-that-halted-global-trials/

    Colonel Haiku (2601c0)

  74. @76, Frosty, you said that wasn’t proof positive of institutional racism. I agree, it’s not. The article does provide some relevant information and you’re free to take it as seriously as you feel appropriate. If you had a chance to follow the link there’s a lot there. If you want to a really deep and thorough debate around institutional racism and the evidence for and against I’m not going to be able to do the subject justice.

    But I think it’s clear that it’s there, and I think it’s very clear that a lot of people are saying they’re hurt by it.

    Time123 (b0628d)

  75. @Pat:

    UPDATE BY PATTERICO: I agree with Amash on many things but completely eliminating qualified immunity is not one of them. I understand his position is popular on the Internet — indeed, supporting law enforcement is not popular, because radical leftists are anti-law enforcement, and our criminal president has undermined respect for the rule of law on the right. But it is not immediately clear to me that it is a good idea to force police officers to defend themselves against claims that fail to establish they unreasonably violated a clearly established constitutional right. The doctrine might need some reining in. It should not be eliminated.

    @DRJ:

    We expect the police to go into harm’s way and we give them qualified immunity to protect them when they do it (and also to protect the sovereign treasury if they hurt someone). Training helps but there is no magic bullet that will prevent police mistakes or wrongdoing. Eliminating qualified immunity will make it easier for people to make successful claims but it won’t reform the police. It will make the police less willing to act, which is want ANTIFA and looters want.

    DRJ (15874d) — 6/3/2020 @ 9:08 am

    100% all of this.

    I *do* think it need to be enshrined via legislative statute instead of an Article III creation.

    The best reform, imo, is to disallow police unions (and really, all public sector unions).

    whembly (c30c83)

  76. 74. Given the current state of “scientific” study, I take the conclusions drawn on HCQ with a grain of salt.

    Gryph (08c844) — 6/3/2020 @ 12:26 pm

    Agree 100%. But remember that we should be starting from the assumption that things don’t have an effect. If I told you that a Gin massage prevented CV you’d expect me to show you proof that it worked, not that you were obligated to prove i’m wrong. Over and over again studies, observational and controlled, are failing to show that it has a positive impact. Which is unfortunate because my life would be better if we had a treatment or preventative.

    Time123 (b0628d)

  77. 80. I don’t think expecting the police to go into harm’s way means we have to canonize them and give them privileges and protections that citizens don’t enjoy.

    Gryph (08c844)

  78. @51 “cops should be outside, patrolling, talking to people. They should want to do that.”

    I absolutely agree.

    I think one of the issues with law enforcement is one of exposure. If you are a police officer as things currently are, generally speaking you see victims and perpetrators. Maybe some witnesses. Every day you mostly see people at their worst because all you are doing is responding to calls or following up on those. All they see is the negativity, so it isn’t surprising if they think of the community in a negative way and react to that thought pattern.

    A lot of officers never get to know the community and the community doesn’t get to know them. The community, when they hear “police” also mostly just thinks about the guy who threw their nice cousin Johnny down to the ground and bruised him up before arresting him. They don’t see Officer Bob, who had stopped and had a quiet word with Johnny’s mom 3 weeks ago because Officer Bob didn’t know enough to be able to have that quiet word, or doesn’t exist at all.

    My closest interactions with the local police have been with our school resource officers. They are great and the kids know and mostly like them. They know the kids and the parents by name and parents know who to call if they need someone to have a serious talk with their kid. Even in the community, I will sometimes see one of our resource officers in uniform at the local shopping center and the kids will often be gathered around him talking to him. But that doesn’t happen with the other officers in town, because the community doesn’t know them, they are in cars all the time.

    Nic (896fdf)

  79. Time123 (b0628d) — 6/3/2020 @ 12:51 pm

    If I told you that a Gin massage prevented CV you’d expect me to show you proof that it worked

    That depends on who’s giving the message and whether Gin is the only option. For various answers to those questions, I might be willing to take your word for it.

    frosty (f27e97)

  80. Most Americans sympathize with protests, disapprove of Trump’s response
    A majority of Americans sympathize with nationwide protests over the death of an unarmed black man in police custody and disapprove of President Donald Trump’s response to the unrest, according to a Reuters/Ipsos poll released on Tuesday.
    ….
    The survey conducted on Monday and Tuesday found 64% of American adults were “sympathetic to people who are out protesting right now,” while 27% said they were not and 9% were unsure.

    The poll underscored the political risks for Trump, who has adopted a hardline approach to the protests and threatened to deploy the U.S. military to quell violent dissent. The Republican president faces Democrat Joe Biden in November’s election.

    More than 55% of Americans said they disapproved of Trump’s handling of the protests, including 40% who “strongly” disapproved, while just one-third said they approved – lower than his overall job approval of 39%, the poll showed.
    …..
    Even in rural and suburban areas largely unaffected by the demonstrations, most people expressed support. A little more than half of rural residents said they were sympathetic to the protesters, while seven out of 10 suburbanites agreed.

    Forty-seven percent of registered voters said they planned to support Biden in the Nov. 3 election, compared with 37% favoring Trump. Biden vowed not to “fan the flames of hate” in a speech on Tuesday about the unrest.
    ……

    Rip Murdock (80e6b4)

  81. Sen. Paul acknowledges holding up anti-lynching bill, says he fears it would be wrongly applied
    Sen. Rand Paul (R-Ky.) acknowledged Wednesday that he is holding up a bill with broad bipartisan support that would make lynching a federal hate crime, saying he fears it could allow enhanced penalties for altercations that result in only “minor bruising.”
    ……
    ….[He] claimed that the bill might “conflate lesser crimes with lynching,” which he said would be a “disservice to those who were lynched in our history” and result in “a new 10-year penalty for people who have minor bruising.”
    …..
    Paul’s office did not immediately respond to a request for elaboration on how the bill could apply to altercations that result in “minor bruising.”
    ……

    Rip Murdock (80e6b4)

  82. Mr nevi wrote:

    Second, did it ever occur to you that maybe the figure we want is 0 per year, and that 100 per year is 100 too many?

    In 1999, the company ‘management team,’ of which I was a part, had divided responsibilities, and the (not very successful) MBA who was the company president assigned Safety to a guy named Ken, the northern region Area Production Manager. (I was APM for the southern region.) We had to prepare our numerical goals for the next year, and Ken had his numbers for Lost Time Injuries. he added, jokingly (?), “So, if we’re short as the year ends, does that mean we have to go out and hurt a few people?”

    The point was that the goal is always zero, but zero is unattainable except in heaven, and there had to be a tolerable, though still reduced, number of injuries with which to judge the safety programs.

    Yes, 100 per year is 100 too many, but in the real world we have to try to reduce that number while still being realistic.

    The Dana in Kentucky (6a5316)

  83. Mr M quoted:

    Its always amazing how you scratch a libertarian, and you find a liberal underneath. It never fails.

    It fails rather a lot. Scratch me, and you aren’t going to find a liberal.

    The Dana in Kentucky (6a5316)

  84. #60 this is just the usual MSM/WaPo nonsense that is reported to make Trump look bad. Everytime he makes a descion or a statement, The Wapo/Nyt finds some anonymous staffer “familiar with the situation” who says everyone disagrees with Trump. Or, as they did with Espry, they lie about Trump said, and claim Espry is “Disagreeing with Trump”. False. Trump said he would use the Military if the Governors or Mayors didn’t adequately defend their honest citizens and maintain law and order. Trump DID NOT say he would use the Military Today or Tomorrow.

    The media – as usual – left out Trump’s IF. Espry is saying that RIGHT NOW, he sees no need for the military. So, The DoD Secretary and Trump are NOT disagreeing. They MAY disagree in the Future.

    rcocean (fcc23e)

  85. It sucks how they keep making Trump look like a clown by quoting him in context.

    Time123 (b0628d)

  86. Mr M wrote:

    Prosecutors who do not push for the maximum sentences (me)

    Not all crimes are equal. I for one WANT the system to be able to make judgements. My real problem with discretion is when it is abused to favor or disfavor people for political reasons. Sandy Berger should have done hard time for destroying a document sought by a national commission; Daniel D’Souza should have been convicted of a misdemeanor and served probation for his meaningless offense. Prosecutors should have been fired in both cases.

    Philadelphia Police Officer Charles Cassidy is stone-cold graveyard dead because District Attorney Lynne Abraham declined to prosecute drug criminal John Lewis, instead offering him some form of rehab, and allowing him to continue to live with his mother, who was a corrections officer who carried a gun. Mr Lewis was robbing a store when Officer Cassidy walked in, and Mr Lewis killed him.

    Philadelphia Police Sergeant Stephen Liczbinski is stone-cold graveyard dead because a felon who was so dangerous that Police Commissioner Charles Ramsey pleaded with the judge that he was too dangerous to ever be released, and should be given the maximum 22-year sentence, but the soft-hearted and even softer headed judge sentenced him to only twelve. Then the idiotic parole board released him after 10½ years. Within just a couple of months, he shot and killed Sergeant Licsbinski, when he could and should have still been behind bars.

    Maurice Hill, 36, with a long, long rap sheet, was sentenced to seven years probation for a perjury charge. When Mr Hill was thrice brought before Common Pleas Court Judge Rayford Means, he was never ordered to prison to serve his probated sentence. Mr Hill later shot six Philadelphia Police officers, fortunately none fatally.

    Cody A Arnett was convicted for two bank robberies in 2014, and sentenced to ten years, in two consecutive five year terms, in the state penitentiary, which means that he should have still been in prison when he is alleged to have raped a Georgetown (Kentucky) College student in 2018. But the state parole board released him after four years, two consecutive two-year terms, the minimum at which he would have been eligible for parole on a five year term in the Bluegrass State. After his release, he broke into the student’s apartment and forcibly raped her. Mr Arnett had five prior violent offenses.

    Now, can you tell me why the officials who had these criminals in hand, but treated them leniently, sentenced them lightly, and released them early, shouldn’t be in some way held accountable for the crimes these thugs committed? If we start to hold prosecutors and judges and parole boards accountable, then a few prosecutions of them will send the message to the others: get f(ornicating) tough!

    The Dana in Kentucky (6a5316)

  87. They – the MSM Reporters – did with Dr. fauci, constantly claiming he DISAGREED With Trump on this or that and forcing the Good Doctor to go on TV and say that was FALSE. Or forcing Trump to say it was FALSE. But the MSM NEVER retract the LIE. Or name their sources.

    rcocean (fcc23e)

  88. Dana of the Bluegrass

    Those officials are exercising the discretion given them by the legislature of their jurisdiction. Do shouldn’t we push the responsibility on to the legislature for allowing anything less than the maximum?

    And of course, if they served the maximum, then committed another crime afterwards, perhaps it’s proper to blame the legislature for not enacting life sentences or the death penalty to ensure they re-offend!

    Kishnevi (95b6eb)

  89. Mr nevi wrote:

    Those officials are exercising the discretion given them by the legislature of their jurisdiction. Do shouldn’t we push the responsibility on to the legislature for allowing anything less than the maximum?

    That’s a good point, though the Supreme Court has a mixed record on mandatory minimum sentences.

    And of course, if they served the maximum, then committed another crime afterwards, perhaps it’s proper to blame the legislature for not enacting life sentences or the death penalty to ensure they re-offend!

    The problem with that logic is that the legislature writes laws which apply to everybody, and I was making my argument in individual cases.

    What I have suggested is harsh, but I think it reasonable and proper.

    The Dana in Kentucky (6a5316)

  90. Tom Cotton: Send In the Troops
    This week, rioters have plunged many American cities into anarchy, recalling the widespread violence of the 1960s.

    New York City suffered the worst of the riots Monday night, as Mayor Bill de Blasio stood by while Midtown Manhattan descended into lawlessness. Bands of looters roved the streets, smashing and emptying hundreds of businesses. Some even drove exotic cars; the riots were carnivals for the thrill-seeking rich as well as other criminal elements.
    ….
    One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers. But local law enforcement in some cities desperately needs backup, while delusional politicians in other cities refuse to do what’s necessary to uphold the rule of law.
    ….
    …..In these circumstances, the Insurrection Act authorizes the president to employ the military “or any other means” in “cases of insurrection, or obstruction to the laws.”

    This venerable law, nearly as old as our republic itself, doesn’t amount to “martial law” or the end of democracy, as some excitable critics, ignorant of both the law and our history, have comically suggested. In fact, the federal government has a constitutional duty to the states to “protect each of them from domestic violence.”
    …..

    Rip Murdock (80e6b4)

  91. Sure, why not? Even if they don’t do much to reduce the rioting, they’ll get a chance to do a little shopping at Frederick’s of Hollywood and Victoria’s Secret.

    nk (1d9030)

  92. A federal appeals court in Denver ruled this week that the homeowner, who had no connection to the suspect, isn’t entitled to be compensated, because the police were acting to preserve the safety of the public.

    This is a Takings case, not an immunity case.

    Kevin M (ab1c11)

  93. Patterico’s stated position is not very useful to this conversation. I’m surprised he doesn’t evidence much knowledge of the long-time arguments and positions concerning Qualified Immunity. Given that, guess I’m not surprised most of the commenters here don’t either

    I suggest checking out Eugene Volokh’s The Volokh Conspiracy, a conservative/libertarian legal blog of mostly law professors, which has long had on ongoing discussion with strong, knowledgeable advocates on both sides of the issue. Also, good info on the similar topic of Civil Forfeiture. Both of these will be addressed in SCOTUS cases this term.

    I like Patterico for common-sense, evidence-based views on many topics, but not on this.

    Purple Martin (34703c)

  94. Now, can you tell me why the officials who had these criminals in hand, but treated them leniently, sentenced them lightly, and released them earl

    Sure. Because nobody can predict the future. Your examples, which amount to “If it wasn’t for that jaywalker, I wouldn’t have turned left and got in that accident; that jaywalker caused it!” are silly. All the judge can do is work with the crime and evidence at hand. Not every dial needs to be turned up to “11”, just in case.

    If all criminals were sentenced to the maximum, and all crimes were prosecuted at the maximum level possible, very shortly thereafter both the maximum sentences would be lowered and the scope of criminal statutes would narrow.

    You argue for RoboCop. Have you seen the movie?

    Kevin M (ab1c11)

  95. Mr M quoted:

    Its always amazing how you scratch a libertarian, and you find a liberal underneath. It never fails.

    To be fair, he quoted that in opposition.

    Kevin M (ab1c11)

  96. No. I have no interest in policing others.

    Some days I would like the power to yank driver’s licenses.

    Kevin M (ab1c11)

  97. OT: Some good news. Valerie Plame, who was trying for the Dem nomination in my Congressionsal district, lost.

    Kevin M (ab1c11)

  98. Patterico’s stated position is not very useful to this conversation. I’m surprised he doesn’t evidence much knowledge of the long-time arguments and positions concerning Qualified Immunity. Given that, guess I’m not surprised most of the commenters here don’t either

    I suggest checking out Eugene Volokh’s The Volokh Conspiracy, a conservative/libertarian legal blog of mostly law professors, which has long had on ongoing discussion with strong, knowledgeable advocates on both sides of the issue. Also, good info on the similar topic of Civil Forfeiture. Both of these will be addressed in SCOTUS cases this term.

    I like Patterico for common-sense, evidence-based views on many topics, but not on this.

    I too recommend the Volokh Conspiracy. Great blog. Eugene is one of the great common-sense voices of our time.

    Your comment is “not very useful” to the commenters here, however, since nobody knows who you are and you come on here simply dismissing my opinions instead of mounting an actual argument against them. By the way, in case my use of quotation marks was too subtle, my use of the phrase “not very useful” is performative irony. The translation is: you disagree with me, but you want to infuse your disagreement with more significance than would normally be attributed to someone whose entire contribution is “I, an anonymous commenter with no track record, disagree with the host but have nothing positive to offer in the way of logic or evidence.” So instead you call my views “not very useful.”

    For what it’s worth, I didn’t offer an in-depth discussion, in case you didn’t notice. I was finishing my batch of oatmeal for the week and grateful one of the other posters had put something up, and wanted to offer my own two cents just so people would realize that there actually is another side to this.

    Patterico (115b1f)

  99. I guess that sounds a little snippy. Maybe I can be forgiven, given the tone of the comment I was responding to.

    Patterico (115b1f)

  100. And I went back just now and reviewed Mr. PurpleMartin’s previous comments and he seems like an OK fellow. You wouldn’t know if from reading his latest comment but I suppose every man gets indefensibly snotty on occasion. Maybe even I do.

    Patterico (115b1f)

  101. Dana, I missed your two points on a more standardized use of force policy nationwide and ending civil asset forfeiture. There is simply no argument against you. Use of force is a ‘forth amendment thing’ in my opinion and clarity around how it works would be great. Also, some rather sophisticated simulations have been developed for when and how to use force. I suspect many who are the harshest critics of qualified immunity would have their eyes opened if they participated.

    Like with Kevin, I think asset forfeiture should require the much higher burden of a criminal conviction. Insofar as this is a matter of funding police departments it goes back to my point about the perverse incentives of how cops are funded. Think of the argument that cops are always in their cars, perhaps trying to write more traffic tickets for the sake of revenue, instead of talking to folks. The kind of job being a cop is will naturally change the kind of person who chooses to do it.

    Dustin (d59cff)

  102. . . . I suppose every man gets indefensibly snotty on occasion. Maybe even I do.

    I know I do, and I revel in it.

    JVW (30a532)

  103. I guess that sounds a little snippy. Maybe I can be forgiven, given the tone of the comment I was responding to.

    Sorry if I sounded snippy, wasn’t really trying to (and I can, if I try). I ready you pretty often but try to comment only when I have something to add. But your short update was pretty simplistic…made it seems as if you really aren’t aware of the standard arguments. Of course, I have no idea whether that’s true or not; you may have just not considered it worth the effort to provide more on what was really just a notice of the Amash action.

    So just thought it might be useful to provide a reference that concentrates on the issue, for anyone looking for something a little deeper. And they realy have had some excellent discussion on the issue.

    Purple Martin (34703c)

  104. Qualified immunity is a police union thing.

    The vast majority of officers and deputies, and I personally know several, are good men and women. They serve to protect the community, and I admire and respect their commitment.

    However, there are a few bad apples. There is nothing worse than an officer with a badge and an attitude. These cops know they can do whatever they want to do, commit crimes such as harassment, battery, unlawful arrest, even murder, and the union will defend them from prosecution.

    That’s the real problem. It’s not renegade cops; it’s the unions which explain away and defend their offenses.

    That’s what these protests are all about. Institutional discrimination.

    Serious reform is required.

    Gawain's Ghost (b25cd1)

  105. Mr M wrote:

    Sure. Because nobody can predict the future. Your examples, which amount to “If it wasn’t for that jaywalker, I wouldn’t have turned left and got in that accident; that jaywalker caused it!” are silly. All the judge can do is work with the crime and evidence at hand. Not every dial needs to be turned up to “11”, just in case.

    It’s a little more direct than that: criminals who commit additional crimes when they could and should still have been in prison have a direct connection here. Had they still been in prison, they could not have committed the crime.

    Perhaps the Georgetown College coed who was forcibly raped by a guy sentenced to two consecutive five year terms, but released early could explain it to you better? Perhaps the several grieving widows of Philadelphia police officers might be able to say it more poignantly?

    Nobody can predict the future? Then-Police Commissioner Charles Ramsey did predict the future, when he told the soft-headed judge that it would never be safe to release that animal; he was leniently sentenced, then released early from that, and Commissioner Ramsey’s prediction came true.

    If all criminals were sentenced to the maximum, and all crimes were prosecuted at the maximum level possible, very shortly thereafter both the maximum sentences would be lowered and the scope of criminal statutes would narrow.

    Would they? The result would be that the crime rate would drop dramatically, as the criminals would have less time out in society to commit crimes. While we could never know which crimes didn’t happen, which felons didn’t commit another crime because they were still locked up, we’d see it in the statistics.

    Rudy Giuliani’s ‘broken windows’ policing turned New York City around, and even that wasn’t maximum sentence kind of stuff.

    You argue for RoboCop. Have you seen the movie?

    Nope! I am simply noting what has happened due to the failure of serious law enforcement after the perps have been arrested.

    The Dana in Kentucky (6a5316)

  106. @DRJ:
    We expect the police to go into harm’s way

    Nope, The Courts ruled Police have No duty to protect in Town of Castle Rock v. Gonzales.

    Paul L. (77c1af)

  107. Purple Martin,

    Patterico has posted about Volokh many times.

    DRJ (15874d)

  108. And yet many or even most do go into harms way, Paul L, despite the fact they have no legal duty to do so. If you take away qualified immunity, I think most will refuse to go into difficult or dangerous situations and the law says they don’t have to.

    DRJ (15874d)

  109. Mr Ghost wrote:

    However, there are a few bad apples. There is nothing worse than an officer with a badge and an attitude. These cops know they can do whatever they want to do, commit crimes such as harassment, battery, unlawful arrest, even murder, and the union will defend them from prosecution.

    That’s the real problem. It’s not renegade cops; it’s the unions which explain away and defend their offenses.

    Unions are expected to defend their members against everything. But what you listed are actionable crimes, and while the unions might pay for the officers’ attorneys, policemen who commit such crimes can, and should, be charged in criminal courts. The real difference as far as qualified immunity is concerned is that police officers, when operating in their assigned duties, can’t be privately sued. Given that torts have a much lower standard of proof, I think this is a good thing.

    My points about parole boards, judges and prosecutors are limited to those with decision taking authority, and who are not on the front lines.

    The Dana in Kentucky (6a5316)

  110. And yet many or even most do go into harms way,..most will refuse to go into difficult or dangerous situations

    Like the heroes cops of the Miami UPS shooting, BSO Deputies Sgt. Brian Miller Deputies Edward Eason, Joshua Stambaugh and Scot Peterson of the Parkland shooting and the Cheshire police in the Petit family murders.

    Paul L. (77c1af)


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