Patterico's Pontifications

6/26/2020

Qualified Immunity Reform: The Cure Is Worse than the Disease

Filed under: General — Patterico @ 8:29 am



Everybody hates the cops these days, and everybody wants to do away with qualified immunity. I think the currently proposed cures are worse than the disease.

Let me begin by acknowledging that there is an issue with qualified immunity. You may have been led to believe that it is virtually absolute immunity for cops, but (at least in theory) it’s not — hence the word “qualified.” The doctrine in theory allows law enforcement to be liable only when they have violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It thus “provides ample protection to all but the plainly incompetent or those who knowingly violated the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

The problem we have is that courts have interpreted the concept of a “clearly established right” to mean that there is a case on point in the relevant jurisdiction that found liability to absurd levels of specificity. To me the absurd levels of specificity are the issue. If a cop beats someone excessively, some court will come along and say “well, sure, there is precedent saying you can be held liable for excessive force, but in that case the cops beat the suspect with flashlights. This cop beat the suspect excessively with a baton, so that’s totally different and there’s no way he could have known that was unlawful!” I made up that example, but the real life examples are almost as silly:

In one case the Supreme Court is deciding whether to hear, Nashville police officers released their dog on Alexander Baxter, a burglary suspect, who had surrendered and was sitting with his hands raised. A prior decision in the 6th Circuit had held that officers violated the Fourth Amendment when they released a police dog on a suspect who had surrendered by lying down. But the appeals court ruled that this precedent did not “clearly establish” that it was unconstitutional to release a police dog on a surrendering suspect sitting with his arms raised.

The hairsplitting regularly reaches absurd levels. In another case pending before the Supreme Court, the 8th Circuit granted qualified immunity to an officer who wrapped a small woman in a bear hug and then slammed her to the ground, breaking her collarbone and knocking her unconscious. Although earlier cases had made clear that an officer cannot use force against a nonviolent person simply because they are walking away, the appeals court concluded that the law was not clearly established because in none of those cases did a “deputy … use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”

I had hoped that the Supreme Court might clean up its own mess, but you know that first case that the author says the justices of the Supreme Court were considering taking up? They declined to do so — just as they declined to take up every other qualified immunity case that was pending.

So yes: there is a problem and it demands a legislative solution. I don’t know, at this precise moment, how I would draw up legislation that would fix the problem. I’d have to think about that. But I don’t think this — language from Senator Mike Braun’s “Reforming Qualified Immunity Act” — is the answer:

(b)(1) Except as provided in paragraph (2), it shall not be a defense to any action brought under this section [i.e., under Section 1983] that, at the time of the deprivation—

(A) the defendant was acting in good faith;

(B) the defendant believed, reasonably or otherwise, that his or her conduct was lawful;

(C) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established; or

(D) the state of the law was such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

There is also a safe harbor provision:

If the defendant could show that, at the time they were alleged to have violated someone’s rights, (1) their challenged conduct was specifically authorized by a federal or state statute, or federal regulation, (2) no court had held that this statute or regulation was unconstitutional, and (3) they had a reasonable, good-faith belief that their actions were lawful.

If the defendant could show that, at the time they were alleged to have violated someone’s rights, (1) their challenged conduct was specifically authorized by then-applicable judicial precedent, and (2) they had a reasonable, good-faith belief that their actions were lawful.

What is the goal of reforming qualified immunity? Presumably it is to reform police abuse and change behavior. But if someone acting in good faith cannot reasonably know what they were doing was illegal, how are you going to change their behavior?

Robert VerBruggen at National Review explains the problem well:

Another part of the bill basically gives cops a safe harbor if what they did was explicitly authorized by a law or court decision. Even so, however, the text quoted above outright states that cops can be held liable even if they did not know and could not have been expected to know that they were violating the Constitution — which is to say that courts can make up the law as they go along and apply it retroactively.

Those are VerBruggen’s original italics.

You hear a lot of horror stories, but going too far the other way could create horror stories going in the other direction. Let’s say the local jurisdiction says a judge is considered retired the moment he conveys his resignation to the presiding judge. An old judge decides he’s had enough, and composes an email to the presiding judge. Five seconds after he hits send, there is a knock on his door. The police want a warrant signed to search the house of a murder suspect they have dead to rights. The judge decides not to tell them he just resigned and signs the warrant. The cops search the suspect’s house and find the murder weapon. They also find the murder suspect, who yells “fuck the police” and shoots at them. A cop along for the search fires back and severely wounds the defendant.

Now it comes to light that the judge was actually retired when he signed the warrant. The murder weapon was critical evidence and it is suppressed. (It probably wouldn’t be under good faith exceptions analogous to the good faith exceptions that this legislation is designed to abolish, but pretend we legislatively did away with those too, in the criminal law context as well as the civil.) Now the defendant wants to sue the police who violated his rights because they entered his house without a legal excuse. They respond that they acted in good faith. Too bad! That they were reasonable. Too bad! That there’s nothing they could have done; no way they could have known there was a problem.

Too bad!

What really needs to happen (and I say this as someone who has been the target of frivolous litigation) is wider litigation reform — an anti-SLAPP type of remedy applicable to all cases and not just First Amendment cases. Plaintiffs need to be able to show that they have a real and solid basis for bringing their claim, not just wild allegations that anyone could put down on paper. Then, perhaps we could come up with language that requires courts to analyze clearly established rights at a higher level of generality — one that is a little less absurd than what we’ve seen in some cases.

But allowing lawsuits against cops who acted reasonably and in good faith is not a good idea. And it will lead to all kinds of unintended consequences.

Slow down, let the current wave of hostility to law enforcement pass, and come back when everyone is not so angry. And then write something that does not gut protections for officers acting reasonably and in good faith.

In the current environment, society will already have a hard enough time getting quality people to apply to be a police officer. “Reform” like this will make that problem far worse.

65 Responses to “Qualified Immunity Reform: The Cure Is Worse than the Disease”

  1. How ’bout widening our thinking?

    Lawyers and Doctors and others have long established rules about “malpractice”. For which they carry insurance.

    I’d like to encourage the police public service labor unions to get some skin in the game. Don’t protect bad apples, but work with the government and the public to improve the breed. One way to help with that might be to have the labor unions bear some of the risk of “bad apple” behavior — and sharing risk is what insurance is all about. So, put the labor union on the hook for LEO’s malpractice insurance, and let the insurance companies define what sorts of behaviors they will, and won’t, cover.

    This also sort of limits the awards lawyers might seek. A city may be assumed to have infinite capacity to raise taxes and pay any judgement. A union or insurance company may cap out at some figure — 250000 or 2 million, whatever. Knowing the payoff helps determine how many enter the game.

    pouncer (b0e023)

  2. Interesting and deserves some thought.

    I will say this. You’re a minor public intellectual. I mean that as a compliment. If you put the time in to come up with a proposal there’s a likelihood that several hundred people will see it. Among them will be other ppl with reach. You don’t owe me anything, but I think putting forth solid ideas on how to fix this, ideas that have an opportunity of impacting the discussion happening today, could make a difference.

    Time123 (7507a9)

  3. Abolish it altogether. Make the standard for liability “wanton and willful”. Lots of precedent on that. Gift them ordinary negligence as far as Section 1983 is concerned, letting their departments discipline them for that.

    nk (1d9030)

  4. Here’s the thing. Criminal cops are like juvenile delinquents. They keep getting away with the small stuff, sometimes with a wrist slap and most often with nothing at all. Then they commit the big crime which makes people sit up and take notice, but it’s too late. For their victims, and for them, too.

    nk (1d9030)

  5. Patrick’s analysis is thoughtful, but I wonder if a different approach to policing entirely is needed.

    The most egregious and dangerous incidents of excessive force seem to occur when the police are dealing with someone who initially resists arrest. These situations are also extremely dangerous for the police.

    Tasers have helped by providing non-lethal assistance in subduing a resisting suspect, but clearly they haven’t solved the problem.

    Still, it seems like technology rather than legal hair-splitting might be a more promising (or complementary) avenue of attack. What about some type of chemical means of rendering a suspect harmless for long enough to secure them in custody?

    There are always going to be risks to someone who resists the police. One advantage here would be that any risks don’t vary from officer to officer, or based on the race of the suspect.

    Dave (1bb933)

  6. I struggle with this too.

    Qualified Immunity seems to be something born of judicial fiat… and on that basis alone, it should be unconstitutional. We MUST have legislation defining the parameters of some sort of qualified immunity, so that the sovereign, the people, have a say when they vote.

    Conversely, I 100% agree with this statement:

    But allowing lawsuits against cops who acted reasonably and in good faith is not a good idea. And it will lead to all kinds of unintended consequences.

    Basically, cops need to be ALLOWED to be wrong so long as it’s done in good faith. The hard part is this: what is the line to demark it as excessive?

    whembly (c30c83)

  7. First, how big a problem is this? We keep harping on these incredibly small number of cases where Police behave in an abusive fashion. Why can’t this be handled at the local and state level? As for “qualified Immunity” the whole point – unless you’re lawyer wanting make $$ suing policemen – is to discourage bad police behavior. Don’t we already have that? Aren’t the Police already subject to discipline from their Police Chiefs and from the local and state departments of Justice? Don’t they already get fired for abusing their authority.

    The Supreme Court has gotten into an area it never should have gotten into. Why can’t police issues be settled by the states? We got plenty of things for Federal Justices to do, besides deciding whether policeman over all the country are behaving in the approved fashion.

    rcocean (fcc23e)

  8. >The problem we have is that courts have interpreted the concept of a “clearly established right” to mean that there is a case on point in the relevant jurisdiction that found liability to absurd levels of specificity

    The other problem we have is that in many cases, when someone sues a cop because of outrageous behavior and a court finds that there is qualified immunity, they also decline to decide whether the behavior violated people’s rights (because since there’s qualified immunity there’s no controversy for a court to settle because there can be no damages), which makes it very difficult for it to ever become clearly established that the behavior violates people’s rights.

    aphrael (7962af)

  9. The only reason this is coming up is politics. The R’s want to show they love Black people too. And for some reason, police brutality has morphed into a racial issue, as if whites don’t get killed by police or black policeman are angels. So, the DC Pols have seized on qualified immunity, as a cheap and easy way to score political points, and to say “we’re doing something”, whether it actually helps or not.

    Thank God, Schumer decided to filibuster the R’s Police abuse bill. Who knows what crazy crap that Bill had in it. OR what nonsense the D’s would’ve added to it. Maybe, some day someone will explain why the most important issue for Congress to address in a country of 320 million, with massive unemployment, staggering deficits, CV-19, out-of-control illegal immigration, etc. is police brutality. Which is a LOCAL issue.

    rcocean (fcc23e)

  10. Set your phasers on stun? Nope, sorry. Technology is only as good as the person wielding it. A punk with a Taser is still a punk. A man without a Taser is still a man. Kind of like Article II that way, you know?

    nk (1d9030)

  11. The other problem is that idiots keep acting like Police are out there wrestling with suspects, and shooting them because they just decided it was fun. No, its there job. They’re out there trying to arrest crooks and deal with mentally ill people who don’t behave rationally. So, why should they get sued when they acting in good faith and had a good reason for doing something. Why can’t we sue Judges for bad decisions? Why do they get a pass?

    rcocean (fcc23e)

  12. Finally, this hatred of cops seems to be a class issue. you have a lot of well-to-do people who are more or less insulated from crime, who look down on cops. Reason? They don’t need the police. If you live in Beverly Hills or an expensive Manhattan Condo with excellent security, you can hire a security guard to protect yourself. So you get all these rich leftists sneering and jeering at the Police. And of course, middle class morons who don’t like authority and someone telling them what to do.

    Its white privilege – of the left wing sort.

    rcocean (fcc23e)

  13. When the revolution comes, you will not be allowed private security, and if susan risemberg is fronting this sham, im not kidding

    Narciso (7404b5)

  14. I’ll suggest what I suggested back on the Justin Amash thread a few weeks back:

    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)

  15. Now it comes to light that the judge was actually retired when he signed the warrant. The murder weapon was critical evidence and it is suppressed. (It probably wouldn’t be under good faith exceptions analogous to the good faith exceptions that this legislation is designed to abolish, but pretend we legislatively did away with those too, in the criminal law context as well as the civil.) Now the defendant wants to sue the police who violated his rights because they entered his house without a legal excuse. They respond that they acted in good faith. Too bad! That they were reasonable. Too bad! That there’s nothing they could have done; no way they could have known there was a problem.

    This hypothetical has to do with good faith about a fact — is the judge who signed the warrant still a judge, or did he just resign before signing the warrant.

    The issue in most of these cases has to about law. The cops know what they are doing, they just argue that they think it is allowed under the law (or it is different enough from the prior case law).

    Bored Lawyer (56c962)

  16. Also, because it’s fun:

    “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)

  17. ‘Even so, however, the text quoted above outright states that cops can be held liable even if they did not know and could not have been expected to know that they were violating the Constitution — which is to say that courts can make up the law as they go along and apply it retroactively.’

    “Ignorance of the law is no excuse.” Or is it?

    Andy Taylor vs. Harry Callahan; film at 11.

    DCSCA (797bc0)

  18. “the text quoted above outright states that cops can be held liable even if they did not know and could not have been expected to know that they were violating the Constitution.”

    It would be a good incentive for them to learn the parameters imposed by the Constitution, then.

    Leviticus (efada1)

  19. “But allowing lawsuits against cops who acted reasonably and in good faith is not a good idea. And it will lead to all kinds of unintended consequences.”

    – Patterico

    If “reasonableness” is decided by fact-finders in 99% of other legal contexts, why should determinations of “reasonableness” be removed from fact-finders when it comes to assessing the behavior of the police? Qualified immunity takes the determination of “reasonableness” out of the hands of fact-finders and places it in the hands of federal judges.

    Leviticus (efada1)

  20. I thought “reasonable suspicion” was a very low bar. Imagine how shocked I was (as a second year lawyer) to read about “arguable reasonable suspicion” in federal MTDs for qualified immunity.

    ARGUABLE reasonable suspicion as the basis for a qualified immunity dismissal. Without the need for a fact-finder to determine whether the “reasonable suspicion” was in fact reasonable.

    Leviticus (efada1)

  21. Maybe this?

    Hold Police Accountable by Changing Public Tort Law, Not Just Qualified Immunity
    ***
    While a great deal of recent writing has focused on the inequity created by qualified immunity, it is important to keep in perspective the extent to which its elimination could serve as a meaningful reform mechanism. The U.S. Supreme Court has historically drawn a sharp distinction between constitutional torts, such as excessive force, and common-law torts, such as assault, battery and negligence. Many acts of police wrongdoing may not constitute constitutional violations and thus would not be addressed by reforms to qualified immunity. Accountability would then have to stem from state tort law.

    Consequently, to the extent that public tort law can serve as a viable mechanism for law enforcement accountability, eliminating statutory privileges and indemnification regulations may serve as a greater vehicle for reform than qualified immunity. That is not to suggest that the federal government cannot play a role in promoting reform. However, when it comes to federal statutes, Congress should once again examine the Federal Tort Claims Act instead of focusing solely on actions based on 42 U.S.C. § 1983 as a means of initiating law enforcement accountability.

    DRJ (4d6f5d)

  22. If “reasonableness” is decided by fact-finders in 99% of other legal contexts, why should determinations of “reasonableness” be removed from fact-finders when it comes to assessing the behavior of the police?

    “other legal contexts” being what, for example? And, is it comparable to what police are expected to do — meaning put their lives and safety in jeopardy as part of their daily routine?

    At some point in all these proposals, the law of unintended consequences should be factored in. There’s a real world out there. If you want good people to consider policing as a career, finding ways to not make it worth their while probably isn’t going to yield the desired results. Good people are usually smart as well, and can figure out other ways to make a living.

    beer ‘n pretzels (09a336)

  23. Don’t protect bad apples, but work with the government and the public to improve the breed. One way to help with that might be to have the labor unions bear some of the risk of “bad apple” behavior — and sharing risk is what insurance is all about.

    I have proposed this idea for teachers and I think it is applicable to police. If you want the union to have some skin in the game, a very minimal way to go about it is as follows:

    Officer (or Teacher) Smith is accused of on-job misbehavior. His union says that he didn’t do anything wrong, but it is determined that Smith must either appear in front of a disciplinary board or perhaps face criminal charges and he is thus suspended from duty. As it now stands, most union contracts provide that Smith continue to be paid during the period while he waits for his hearing/trial, until a final determination is made. As we have seen with large school districts like the LAUSD, an internal hearing could take 18-24 months to be completed. A criminal trial might last just as long.

    So my proposal is that the moment Smith is suspended from duty, his pay goes into an escrow account until a final decision is rendered. In the meantime, it would be up to the union to provide Smith and his family the money to live on. (Presumably, Smith would continue to have health insurance and other benefits his family relies upon.) If Smith prevails in his hearing, the money held in escrow is released and Smith can use a portion of it to pay back the union for what they provided. If Smith loses and is dismissed or convicted, the money goes back to his employer and the union would have to either eat the sum or try to get Smith to repay it.

    Again, that’s very minimal. I’ve heard suggestions that civil payments to citizens for misbehaving police (or teachers) ought to come from union pension funds, but I kind of doubt that would be legal. And I’m not a fan of saying that because Officer Z misbehaved then Officers A through Y should have their salaries cut.

    I like Patterico’s idea for an anti-SLAPP law to prevent citizens from filing frivolous harassment claims. We read that Derek Chauvin had 17 complaints registered against him. If those complaints were legitimate then they should have been made public and we have the right to know what corrective actions were taken. But if some of those complaints were just a bunch of Karens and Kens (advance apology to the Kens of the world for defaming your name) doing what Karens and Kens often do, then the cop deserves to have them expunged from his record.

    TL/DR: I have a silly and trifling suggestion, and I like what Patterico’s suggests.

    JVW (ee64e4)

  24. Set your phasers on stun? Nope, sorry. Technology is only as good as the person wielding it. A punk with a Taser is still a punk. A man without a Taser is still a man. Kind of like Article II that way, you know?

    but its harder to go wrong with an elephant tranquilizer gun is my point mr nk

    Dave (1bb933)

  25. “ cops can be held liable even if they did not know and could not have been expected to know that they were violating the Constitution ”
    wow. isn’t that the same standard that law enforcement applies to us regular citizens? Ignorance of the law is no excuse.

    kaf (4ab47f)

  26. We’re not just talking about deaths here, either.

    There was a case last week where a circuit court ruled that qualified immunity prevented a lawsuit under these circumstances:

    (a) person was sexually assaulted
    (b) person reported the sexual assault to the police
    (c ) police promised not to disclose their identity or the details of the assault
    (d) state law *required* the police to keep the identity and details secret
    (e) police leaked the story to the press in a way that made the identity of the victim clearly identifiable

    the appeals court ruled that there is no clearly established law saying this is a violation of the rights of the victim.

    and because the court so ruled, there *still* is no clearly established law saying this is a violation of the rights of the victim.

    aphrael (7962af)

  27. no more like that 70s dirty harry film the enforcer, that’s where the guerillas acquired missiles,

    https://www.dailymail.co.uk/news/article-8384065/Black-Lives-Matter-leader-declares-war-police.html

    narciso (7404b5)

  28. I mean, there are two benefits to a robust 42 USC 1983. One is, of course, the deterrent effect. But the other is justice — recompense for a wrong. To someone who has had their rights violated, it doesn’t matter whether the violator thought they were scraping by and not clearly violating them. It matters that they were wronged, and the demands recompense.

    Make the victims whole.

    AJD (841cb2)

  29. JVW, I’d support your modification to my idea, agree to extend to public school teachers, and
    wonder what other public sector employees should be included. Are fire-fighters or EMTs prone to mistakes now over-protected by immunity?

    pouncer (b0e023)

  30. 7

    “The Supreme Court has gotten into an area it never should have gotten into. …”

    The Supreme Court had no choice since Congress passed a law allowing suits in Federal Court.

    James B. Shearer (d35567)

  31. The lower court opinion in the Baxter case can be found here .

    According to the court the police dog in the earlier case was inadequately trained with a history of bad behavior which was not true in the Baxter case. There are always going to be close cases where a slight difference in facts is the difference between legal and illegal.

    James B. Shearer (d35567)

  32. “…is wider litigation reform — an anti-SLAPP type of remedy applicable to all cases …”

    Baxter (at least initially) was a prisoner proceeding pro se and unlikely to be deterred by anti-SLAPP laws.

    James B. Shearer (d35567)

  33. The lower court opinion in the other case can be found here .

    The statement in the newspaper “… Although earlier cases had made clear that an officer cannot use force against a nonviolent person simply because they are walking away …” seems unlikely to me. If an officer tells you to stop and you don’t, he can’t grab you by the arm? Surely the woman’s claim depends on the amount of force used not that force was used at all.

    James B. Shearer (d35567)

  34. “… To me the absurd levels of specificity are the issue. …”

    This could happen when the second 3 judge panel thinks the earlier 3 judge panel decided the similar case wrongly. The second panel isn’t allowed to explicitly overrule the first panel so they find a way to distinguish the cases instead. Not sure what can be done about this.

    James B. Shearer (d35567)

  35. The earlier dog case can be found here.

    There is considerable discussion of the failure to keep the dog’s training up to date.

    James B. Shearer (d35567)

  36. The other problem we have is that in many cases, when someone sues a cop because of outrageous behavior and a court finds that there is qualified immunity, they also decline to decide whether the behavior violated people’s rights (because since there’s qualified immunity there’s no controversy for a court to settle because there can be no damages), which makes it very difficult for it to ever become clearly established that the behavior violates people’s rights.

    That is a very good point, aphrael.

    Patterico (115b1f)

  37. If “reasonableness” is decided by fact-finders in 99% of other legal contexts, why should determinations of “reasonableness” be removed from fact-finders when it comes to assessing the behavior of the police? Qualified immunity takes the determination of “reasonableness” out of the hands of fact-finders and places it in the hands of federal judges.

    I’m not a civil law expert but I think a judge can always take a decision away from the jury if, on summary judgment, he finds there is no genuine dispute as to a material fact. If he thinks the alleged behavior is reasonable as a matter of law, I think he can take it from the jury’s hands too. (A judge might be typically reluctant to do so.)

    I think the bigger problem is when the allegations written in the complaint are a pack of lies. Speaking from personal experience.

    And many, many of the supposedly outrageous cases you read about, set forth the allegations of the complaint as fact. And 99% of readers take them that way. That’s now people across the State of California (and indeed across the country) were convinced that I deliberately published a woman’s Social Security number and left it up for a considerable period of time — long enough for her credit rating to be hurt and for her to develop an ulcer. Supposedly.

    Those who were here and witnessed what actually happened know the truth, which was a very different story indeed: an error by an attorney (not me) made years ago on PACER, compounded by my posting the document for about an hour here with no clue it had not been properly redacted, and taking it down the very moment I learned of the attorney’s error. Never mind — the way it was reported in the papers is the way most people heard it and understood it and believed it. Even though she had to dismiss the case for zero compensation, zero silence on my part, and walk away utterly humiliated, that was barely reported. Just the salacious allegations.

    Patterico (115b1f)

  38. 37. The idea that accusations against cops can be a pack of lies cuts both ways. It’s also possible that cops can plant evidence, perjure themselves in testimony, and slander the good name of otherwise law-abiding citizens. And when this sort of thing happens (more often than most people realize, IMO), cops get the benefit-of-the-doubt in a manner that no citizen would.

    Let me stipulate that I do believe that cops do not have a duty to protect. The courts have held this, and I think it is proper. There is a 2nd amendment precisely because individual citizens have a duty to protect themselves and their loved ones first. That’s not what I’m talking about here.

    What do we do when our cops are criminals? What do we do when police departments won’t hold their own accountable for needless, senseless loss of life? Let me also stipulate here that I do believe that some shoots can be classified as “awful but lawful.”

    There needs to be some kind of accountability here, particularly since the idea of “qualified immunity” as applied to police officers tends to mean absolute immunity in practice.

    Gryph (08c844)

  39. #37 One reason we have libel and slander laws is most people are idiots and will believe anything they read or hear. They’ll stay stupid crap like “Why would they lie?” or “Where there’s smoke there’s fire!”

    Look at Kavanaugh hearings. Even when you account for partisanship posturing the number of people giving blowsey Ford credibility was astounding.

    rcocean (fcc23e)

  40. You vote out the leaders who are in charge of the police, or you move.

    DRJ (aede82)

  41. 40. That sounds so convenient and pat, but it’s not always that easy. In my home state, cops are hired by their respective municipal police departments, but they are then sent away to their initial training at the state police academy at the capital.

    After the academy training, cops will spend time with a field training partner (FTP) who directly answers to the on-duty shift captain, and in turn the chief-of-police. While the chief serves at the discretion of the city council and the public safety supervisor, the chief is virtually never let go just because of turnover within the ranks of those elected officials. In my lifetime, the only times we’ve ever had new police chiefs is because the former chiefs retired or resigned.

    Gryph (08c844)

  42. You fire them all, like Minneapolis is about to do. https://www.startribune.com/minneapolis-city-council-votes-unanimously-for-proposal-that-could-replace-police-department/571504662/ Then they can all practice their Code of Silence together at the unemployment office.

    nk (1d9030)

  43. 42. The problem with that is then the law of the jungle reigns supreme, particularly in larger cities like Minneapolis.

    Gryph (08c844)

  44. That didn’t happen with air traffic controllers and hopefully it won’t happen with the Minneapolis police. There will be a new police force. What will be gone will be the old rotten one and its union. Like a house which has deteriorated to below fixer-upper, so you tear it down and put up new construction. I really would like to see it work and be a model for other cities across the country.

    nk (1d9030)

  45. 44. Air traffic controllers were fired when they broke the law precisely because there were military controllers to take their place in adequate numbers to ensure the system’s integrity. Do you really think you, or for that matter most people, would be comfortable with military security taking the place of civilian police departments?

    Gryph (08c844)

  46. I’m not a Minnesotan. Sometimes crazy people can accomplish what sane people would never attempt.

    Seriously, I am concerned that they will sub-contract to the same suburban police co-operative that murdered Philando Castille. Even so, the dissolution of the police union will be a net gain.

    nk (1d9030)

  47. 46. We’re not talking about the dissolution of the police union. We’re talking about the dissolution of the police. FULL STOP. I have been quite outspoken in my criticism of paramilitary training for municipal police forces, and even I think getting rid of the police altogether is a horrendously bad idea.

    Gryph (08c844)

  48. “… since the idea of “qualified immunity” as applied to police officers tends to mean absolute immunity in practice.”

    This isn’t actually true, qualified immunity is denied in lots of cases. This doesn’t mean the police officer always loses, there are often factual disputes as well.

    James B. Shearer (d35567)

  49. Who’s “we”? I started this conversation, and I am talking about dissolving the police union just in itself is worth dissolving the whole police department.

    nk (1d9030)

  50. 49. I don’t think it’s worth it in Minneapolis or anywhere else. But it’s easy to be cavalier about such things until it’s your own ox being gored.

    Gryph (08c844)

  51. Seriously, I am concerned that they will sub-contract to the same suburban police co-operative that murdered Philando Castille. Even so, the dissolution of the police union will be a net gain.

    nk (1d9030) — 6/27/2020 @ 8:24 am

    Just because of the agency I worked for, I didn’t have a police union. It was barred by law. Every now and then someone would try to create a quasi union and we could grill some hot dogs and talk about asking for a better pension.

    Insofar as police unions protect people from circumstances where they would otherwise be fired, obviously that makes life miserable for everyone who has to put up with them. It seems like a benefit on paper, but politically, working with people who are protected to screw up is actually a headache. Most cops will never shoot anyone. Most cops will rarely use force. Most cops get complaints very rarely, and valid complaints never. If we see union protections a certain way, it’s actually forcing the good apples to mix with the bad apples, degrading internal politics over the years.

    So I definitely think police unions shouldn’t be a thing. Nor should any government employee union. Instead, government employees should be governed by state licenses (like cops are) but the license should collect far more records (complaints, annual testing, etc). The line to revoke a license should be crystal clear, and ‘internal affairs’ should be removed to the state licensing commission, who should have its own investigators.

    If nk tried to get licensed as a lawyer in Texas, Texas would check on his license history in Illinois. If he was disbarred in Illinois it would be a real problem getting barred in Texas. Peace officer licenses should work that way. Not an absolute bar, but a proceeding before the license is granted.

    I can only speak to what I know personally, but there is a cancer in law enforcement where cops resign and get hired to a cop. There are so many law enforcement agencies they usually don’t even have to move. Look up the jailer that failed to check on Sandra Bland. He was bounced or resigned from agency after agency for things that are totally awful, all the way back to when he worked for the agency I worked for (I didn’t know him). Imagine the total cost to our institutions of one Sandra Bland tragedy. Quality control saves millions of dollars and lives.

    Patterico’s QI post is great and I appreciate how he links the issue to lawsuit abuse generally. I think that is a really smart approach to improving what we have without making it something punitive to a profession where almost everyone actually is trying to do good.

    Dustin (e3a6ae)

  52. where cops resign and get hired to a cop.

    I meant get hired as a cop in a nearby agency.

    And my apologies for the length of my comment.

    Dustin (e3a6ae)

  53. Also, I have a special beef against the Minneapolis police union from the Justine Diamond case. They publicly tried to sabotage the State’s Attorney’s independent investigation, up to claiming that it was because the victim was a white woman.

    nk (1d9030)

  54. 53. Also, I have a special beef against the Minneapolis police union from the Justine Diamond case. They publicly tried to sabotage the State’s Attorney’s independent investigation, up to claiming that it was because the victim was a white woman.

    Which raises the question of exactly how ‘racist’ was the Minneapolis police if they were willing to go to bat for a Somali immigrant of questionable law-enforcement quality.

    Capsaicin Addict (041266)

  55. And said community was grateful for that unions faith this round,…I didnt see too many “dark skinnies with big heads” amongst the protestors, rioters or looters.

    urbanleftbehind (2641dd)

  56. “You’re a murderer!”
    “But I kill white women too!”
    “Oh, okay, then.”

    The logic escapes me.

    nk (1d9030)

  57. The logic escapes me.

    You were protesting Diamond’s murder at the time, were you?

    You explain the logic. It’s your logic.

    beer ‘n pretzels (883307)

  58. Don’t cover up for murderers whether they’re white cops who kill black people or black cops who kill white people. Is that so hard, or do they teach something else at Covfefe University?

    nk (1d9030)

  59. Right, which is why you didn’t care about the Somali cop that killed Diamond until now.

    beer ‘n pretzels (98776e)

  60. @45. Do you really think you, or for that matter most people, would be comfortable with military security taking the place of civilian police departments?

    You’ll likely discover many fresh PD recruits have recently mustered out of the military– and have served several tours in live fire combat zones- which is part of the problem given their training; old habit die hard.

    DCSCA (797bc0)

  61. Right, which is why you didn’t care about the Somali cop that killed Diamond until now.

    It was an American cop, on the Minneapolis police force, that killed the foreign woman.

    Colonel Klink (Ret) (305827)

  62. Right, which is why you didn’t care about the Somali cop that killed Diamond until now.

    Oh, you know me that well, do you?

    nk (1d9030)

  63. I’m sure you can show where you railed, at the time, against the cop that murdered Diamond just as much as you‘ve railed against Floyd’s murderers — so, naturally, I take it back.

    beer ‘n pretzels (906ea1)

  64. ’m sure you can show where you railed, at the time, against the cop that murdered Diamond just as much as you‘ve railed against Floyd’s murderers — so, naturally, I take it back.

    Good.

    nk (1d9030)

  65. You’ll likely discover many fresh PD recruits have recently mustered out of the military– and have served several tours in live fire combat zones- which is part of the problem given their training; old habit die hard.

    DCSCA (797bc0) — 6/29/2020 @ 8:58 am

    Honestly I agree to an extent, but the best cops I know also were veterans. You have to screen out PTSD and other problems (and not just via disability ratings, but with a legit psych evaluation).

    You do need people who can stay calm in a crisis, but also you need people who can stop violent bad people. Those can be related, but they can surprisingly diverge sometimes.

    Ultimately, it’s always interesting watching people who do not really have exposure to the profession talk about screening people out. A veteran who is smart, in good shape, passes a background check, and is willing to work will get snatched up by departments. In an economy with this kind of joblessness, why wouldn’t a veteran consider being a cop?

    My state license recently changed how it calculates education. You can substitute years of service in the military for college. On its face, this is asinine. But they are simply treading water with how few cops are educated, which is itself a refection of a poor quality labor pool.

    So step one to all this: get good people to want to be cops. Justin Amash ain’t going to do that.

    Dustin (739c8b)


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