Police Abuse

These Judges Defend Qualified Immunity as 'a Deferential Rule' That Protects the Police

“Officers don’t have the time to pull out law books and analyze the fine points of judicial precedent.”


Qualified immunity, the controversial legal doctrine that frequently shields police officers from being sued when they violate citizens' constitutional rights, seems to be under fire from all directions these days.

"Qualified immunity protects police and other officials from consequences even for horrific rights abuses," observed Rep. Justin Amash (L–Mich.) when he introduced the Ending Qualified Immunity Act in the House of Representatives last week. "It prevents accountability for the 'bad apples' and undermines the public's faith in law enforcement."

Plenty of non-politicians agree. "More than 1,400 professional athletes, coaches and executives," reported The Los Angeles Times, "signed a letter asking Congress to pass legislation to eliminate qualified immunity for law enforcement and other public officials."

Unfortunately, criticism of qualified immunity is not a unanimous opinion among federal judges. In fact, the doctrine has a number of prominent defenders on the bench, including two influential judicial appointees of President Donald Trump.

According to the U.S. Supreme Court's 1982 ruling in Harlow v. Fitzgerald, government officials are entitled to immunity from civil suits arising from their official conduct so long as the conduct that they're being sued over "does not violate clearly established statutory or constitutional rights."

"That's a deferential rule," observed Judge Amul Thapar, a Trump appointee who sits on the U.S. Court of Appeals for the 6th Circuit. He meant deferential as a compliment. "Officers often find themselves in positions where they must make split-second decisions in dangerous situations," Thapar wrote in Howse v. Hodous (2020). And in his view, federal judges should not be playing Monday morning quarterback when it comes to such matters. "In those crucial seconds," Thapar insisted, "officers don't have the time to pull out law books and analyze the fine points of judicial precedent."

Judge James Ho, a Trump appointee who sits on the U.S. Court of Appeals for the 5th Circuit, has also praised qualified immunity for the broad judicial deference that it gives to the cops. "We have no business," Ho wrote in Winzer v. Kaufman County (2019), "second-guessing split-second decisions by police officers from the safety of our chambers."

Thankfully, not every member of the federal bench sees the issue that way. Judge Don Willett, another Trump appointee to the 5th Circuit, complained in a 2018 case that when it comes to qualified immunity, "merely proving a constitutional violation doesn't cut it; plaintiffs must cite functionally identical precedent that places the legal question 'beyond debate' to 'every' reasonable officer." In other words, Willett explained, the doctrine lets "public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

Justice Sonia Sotomayor is no fan either. The Supreme Court's current qualified immunity doctrine "tells officers that they can shoot first and think later," Sotomayor wrote in dissent in Kisela v. Hughes (2018), "and it tells the public that palpably unreasonable conduct will go unpunished."

Here's a telling example of what qualified immunity's "deferential rule" looks like in practice. In Latits v. Phillips (2017), the 6th Circuit concluded that a Michigan police officer violated the Fourth Amendment when he shot and killed a fleeing suspect. But the court then went ahead and awarded the officer qualified immunity anyway for his unconstitutional actions. "Although we now hold that [Officer Lowell] Phillips's conduct fell outside the bounds of the Fourth Amendment," the 6th Circuit said, "controlling authority at the time of the events had not clearly established the rights we identify today."

Writing in dissent, 6th Circuit Judge Eric Clay basically shook his head in disbelief. "The majority spends the bulk of its opinion explaining how Officer Phillips' use of deadly force was objectively unreasonable." But "in the final stretch," Clay marveled, "the majority abruptly shifts gears to hold that [the plaintiff's] constitutional rights were not clearly established….In so holding, the majority has created a nearly impossible barrier for plaintiffs seeking to vindicate their rights against government officials."

As I wrote in a 2018 column, "something has gone seriously wrong in our criminal justice system when the courts are running this kind of interference on behalf of blatantly unconstitutional police conduct."

NEXT: The Government Was Wrong About Masks

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  1. >>Officers often find themselves in positions where they must make split-second decisions in dangerous situations

    who gets it first the dog or the asleep girl?

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    2. Dog gets shot. Girl is arrested and given option to be set free for a blowjob since that hasn't been ruled unconstitutional yet.

    3. "In retrospect, calling in an air strike on the entire apartment complex may seem to have been an excessive use of force. But officers don't have the time to pull out law books and analyze the fine points of judicial precedent. They want to go home safe to their families at night."

    4. Pity the poor cops who had to make the split second decision under terrible pressure whether or not to pocket $ quarter of a million during a search. Of course stealing during searches is so common that quite possibly police truly believed in good faith that this conduct was authorizeded????????

  2. "does not violate clearly established statutory or constitutional rights."

    Of course, no one could think "The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated," means you can't take stuff from citizens. That's just crazy talk.

    1. Ya, the actual precedent states that the rights or laws must be established clearly. But now it has morphed to be that there is a clear precedent that the clearly established laws actually apply to police, even though all laws apply to police unless they are explicitly exempted, and that there is clearly established precedent that police aren't allowed to abridge that particular right in that way, even though rights are not supposed to be abridged unless there is a specific exception for it. It's madness, and the courts made it up just to bolster the state's ability to have it's agents act with undue boldness (as if that was ever a problem for police).

  3. "We have no business," Ho wrote ..., "second-guessing split-second decisions by police officers from the safety of our chambers."

    Good thing not everyone can be a Ho.

  4. “Officers don’t have the time to pull out law books and analyze the fine points of judicial precedent.”

    I suppose expecting them to act like decent human beings and not flagrantly violate people's rights is out of the question too.

    1. Perhaps the default position should be that if they don't know specifically that something is allowed not to do that thing in question.

    2. Furthermore, we're not allowed to use that defense ourselves when they pull out some arcane and particular statute to get us on.

  5. Breaking: Local rumours circulating in Seattle that the PD is about to abandon the West Precinct (my neighborhood). I'm going to be driving down that way this morning, I'll report what I see.

    1. Please stay safe. There are a lot of violent white supremacists running around these days.

        1. That took them all of ten minutes to start worrying about property rights after they stole it. I was under the impression property rights was one of the things they were fighting.

    2. Good luck.

    3. I hope you're packing.

      1. Nice.
        For and against in the same comment.

        1. ^ 🙂

    4. If they do, start shooting on sight.
      Marxist invasions must be met with force

    5. The Capitol Hill Autonomous Zone, also known as CHAZ, and formerly known as Free Capitol Hill, is a six-block space with no current police presence.
      On June 8, after days of violent protests, the Seattle Police Department packed up their stuff, removed their barricades, and left the protesters to police themselves.
      In a series of tweets, Seattle Mayor Jenny Durkan explained the removal of officers was an effort to “proactively de-escalate interactions between protestors and law enforcement outside the East Precinct.”
      Violent anarchist, rioter, looters and arsonist policing themselves. Perfect solution for the Americans that live and have businesses there. Cracking down that hard should discourage these actions in the future.

  6. Defund judges.

  7. Maybe, just maybe, incentives matter, and when cops are incentivized to make hasty decisions, they make bad decisions.

    Maybe, just maybe, if cops were incentivized to step back and think about that warrant they are fabricating, or about that door they are about to bust open at 3am, or the handcuffed prisoner they are about to shoot, or the steroids they are about to inject, or the drugs and guns they are about to plant .... call me crazy, but maybe, just maybe, they might contemplate some less abusive action.

    1. Why? They have QI...

      1. And if they didn't, and had examples of other bad cops who had ignored the change in incentives, maybe, just maybe, ....

        1. To a cop, changes in incentives are racist.

        2. Right, because lawsuits are the silver bullet... not criminal charges

  8. QI in no way shape or form prevents accountability for an officers actions. Cops can be charged with any crime just like anyone else. Look at Chauvin he's charged with 2nd degree murder how is QI protecting him from that?

    1. QI is not protecting him because if it did, folks would burn down the court house and murder the judge.

      Today is special.

      Tony Timpa's story is far more likely.

    2. The earth is flat! FLAT I say! Just look at it!

    3. While QI doesn't form an absolute bar to accountability, your analysis ignores a lot of practical realities. Consider:

      - Criminal prosecutions of bad cops must be made by prosecutors. Those prosecutors are dependent on cops for the rest of their livelihood. Those prosecutors office is also required to defend county officials - including the cops. The prosecutors are in an inherent conflict of interest.
      - Criminal prosecutions require a very high bar - beyond reasonable doubt, etc. That should be the standard before putting someone in prison but it's out of balance as a standard before you can fire someone for not being good at their job.

      1. IceTrey is right that QI doesn't seem to come into play in this case. You are pointing out something that I keep trying to mention that I believe is getting lost in the conversation. More than any protections written in law for bad cops and prosecutors is the unwritten culture. Prosecutors are under tremendous pressure both personally and professionally to not go after cops. It's simply not in their best interest since they either need cops on their side or I imagine in many cases, they know cops personally and don't want them jailed. Cops don't snitch on other cops. See LA Confidential for a good fictional representation of all of the politics and economics of law enforcement.

        How do you eliminate that sort of culture? It's human nature, people watch each other's backs all the time in all sorts of professions. Things that were once supposed to be frowned upon become common and overtime are merely seen as the way things work. Corruption seems to start out of convenience more than maliciousness in most cases. The only way I can see to avoid this is to ingrain personal responsibility into everyone as early as possible, but that kind of cultural uniformity centering on individualism seems like it's gone and never coming back.

        1. Yep, but QI bitching is easy.
          Who cares if it's a fig leaf?

          1. It still needs to happen, or at least enumerate the things that it grants immunity for. Breaking someone's face because they mouthed off should make them both criminally and civilly liable. To pretend like getting rid of QI is some kind of one-stop fix is delusional.

        2. I saw in another QI thread where someone suggested mitigating this conflict of interest by assigning prosecution of cops to the public defender's staff. Maybe not an ideal solution, but could be workable. Someone other than the prosecutor's staff needs to do this.

    4. "IceTrey
      June.11.2020 at 1:00 pm
      QI in no way shape or form prevents accountability for an officers actions. Cops can be charged with any crime just like anyone else. Look at Chauvin he’s charged with 2nd degree murder how is QI protecting him from that?"

      But Reason was told to push QI repeal, so their little sycophants don't care about real solutions

      1. There was a conversation among us "little sycophants" yesterday in a thread about Amash's bill about how QI isn't the end-all solution and we need to hold bad cops criminally liable. I noticed you were too busy slinging ad hominem to participate in any meaningful way.

        1. LOL

          please, all readers, go read the conversation he's linked

          1. Too much discussion and not enough name calling for you to follow it?

        2. JFC sarcasmic doesn't know that civil and criminal cases are different things.

    5. We haven’t even reached the hearing stage yet. There a lot of legal jockeying yet to be done. Almost all of it, even.

      I guarantee that the defense will move for summary judgment on QI grounds.

      If I’m being honest, I don’t see any meaningful reform happening because of Floyd. The only way it can happen is if these guys walk.

    6. Doesn’t mean he will be convicted. My understanding is that QI is predominantly used to avoid personal responsibility. You do get to sue the taxpayers for damages.

      1. I meant personal liability, that is, financial responsibility.

  9. Lawyers are probably salivating at the prospect of removing QI from cops. Said lawyers already spend big money on tv ads soliciting clients who've allegedly been harmed by doctors, hospitals, nursing homes, employers, etc. Imagine the consequences if QI is eliminated in a very broad manner. Unlike your contacts with doctors, etc. the contact usually isn't adversarial. Most contacts with cops are! So almost every contact is likely to send one off to see a lawyer and seek to sue a cop. "He targeted me. He didn't call me by my preferred gender. He laughed at my accent. He shot me in the knee when I thrust my knife at him. He teargassed me when I failed to move aside to let the ambulance by." Every cop will be tied up in court all the time. QI needs to eliminated for targetted wrong doings, and cops need to revise their rules of engagement and use of force.
    But let's be aware that blanket elimination of QI most likely leads to dismantling the police force too.

    1. "He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

      For quartering large bodies of armed troops among us:
      For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states" -Declaration of Independence

      QI is an act deserving of warfare per the Declaration of Independence. It is impossible to support the Constitution AND QI. They are incompatible.

      Remember, professional police (not the Sheriff) is a Progressive construct.

      1. The Declaration of Independence is not a legal document, so it doesn't matter. Only an idiot would reference it. Duh.

        /response I often see from lawyers when I bring it up.

        1. Not from this lawyer.

          For years, I have cited the DOI as support for abolishing QI along with a myriad of other totalitarian measures.

        2. Thank you sarcasmic. I was hoping...

          The Declaration of Independence is the founding document. It is where we get the right to create laws.

          Jefferson was brilliant. He placed the founding document ABOVE the law where Congress could not get to it.

          When the law breaks down, the Declaration of Independence is the fall back document.

          It's time.

    2. "But let’s be aware that blanket elimination of QI most likely leads to dismantling the police force too."

      Good point. I mean, before QI there were like no police and stuff. Get rid of it and we'll go back to those anarchist days where the government had no one to enforce the law.

      1. "Smile when you say that, stranger"

      2. Police are NOT the sheriff. Professional police are relatively new, progressive, machine.

        Your sheriff is a Constitutional officer and is how we have civilian control over law enforcement.

        Police are just private security for government and needs to be abolished if we are to restore the Constitution.

        Support the Constitution. Support your local sheriff. Abolish police.

        1. Now thats an interesting point, and compelling position.
          Maybe something to work on when everyone takes a brake from the QI circle jerk

          1. QI is in the news, which is why this news outlet is writing news about it, and people are commenting on the news. Duh.

            1. "Baaaaah" he says

        2. Abolishing the police is not the way to go! Eliminating qualified immunity to cops who abuse their power is!

    3. The difference is that doctors, hospitals, drug companies, etc. have deep pockets, cops not so much. Most of those lawyers you see advertising won’t take a case unless they can settle for a million or more.

  10. Democrats and libertarians are against QI, so conservatives must support it. They have no choice. They must support it, belittle its effects, and attack those who would like to see it go away. Not because of the policy itself, but because of politics.

    1. I notice they are being quieter lately. Not a good look for big government-"conservatives" on multiple fronts right now.

      1. It must be tough for them. I mean, they've got to abandon their sense of morality so they can support the guy they voted for and will vote for again. That's got to be damn difficult. Assuming they have a moral sense to abandon that is.

        1. It's amazing how easily manipulated you are

        2. I didn't vote in 2016.

          I will vote for Trump in 2020 because of the coup attempt.

          Why? Because I don't want a good man in that office. I want someone nasty and ugly enough to take on the progressive, deep state.

          We are in this mess because Bush 2 gave the proggies everything it wanted with DHS. He was a weenie who just ran away and let the deep state run the show. Obama (after 6 months or so) did the same.

          If Biden is elected the FBI has him by the nardz. At the very least they will threaten to prosecute Hunter and Biden will fold on day 1.

          The Constitution is supposed to guarantee civilian control over military and law enforcement. A compromised POTUS is the point of these riots.

          The FBI will do ANYTHING to prevent Trump from being president including rattling up ANTIFA to riot in Seattle.

          If nothing else that is the biggest endorsement for Trump EVER.

          1. I'm all done voting against the greater of two evils. Giant Douche or Turd Sandwich? Fuck that, I'm staying home.

            1. Vote Libertarian - Jo Jorgensen. Better than not voting at all.

          2. Same here, Jeb. Happy to vote for the nasty-ugly as needed.

          3. You're bonkers.

      2. Don't you have a pretend company to pretend to run so you can pretend you're a business owner?

        1. I offered to settle this Jesse. If you recall, you keep bitching out, bitch boy.

    2. We are officially out of straw. Everyone blame sarcasmic.

  11. Judges, shmudges. What do the unions think?

    1. The police union is looking at a HUGE windfall and far greater control.

      IMO the police union and ANTIFA are on the same side and likely ANTIFA is being controlled by the FBI.

      It's we the people versus the FBI. Always has been. The police and their union and ANTIFA are simply the pawns.

  12. Reviewing the efforts at reform leads me to believe the efforts will be DOA unless there is a better understanding of why QI exists in the first place.

    First, it must be understood that immunity from suit and defenses to suit are not the same thing. It appears that judges and commenters often say "immune from liability" when they mean "not liable b/c the party with the burden of proof on the cause of action has failed to meet it". Using the word "immunity" in this way creates needless confusion because commenters then use QI to mean both distinct concepts. The right to be "immune from suit" means a judge ends the case before a jury can consider it. "Immune from liability" is just gobbledygook that introduces confusion by jamming words with distinct meanings into places they don't properly fit.

    The fundamental evil of current QI doctrine, the low-hanging fruit, is the corruption of the meaning of "reasonable". The "clearly established" principle has restricted the "reasonable" standard that traditionally defined the "mens rea" element of proof on negligence, to mean that no act could ever be considered unreasonable unless specifically, explicitly, and previously defined as such. If the stories of Franz Kafka and Lewis Carroll were to have a baby, this is what the child would look like. "Reasonable" is, by definition, the operating principle of our legal system to account for the fact that not every possible permutation of every possible eventuality can be pre-defined. It's a formula to follow in arriving at justice at the granular level of each individual case.

    However, the solution to this aberrant definition of "reasonable" is not to eliminate it from existence as Amash's bill would. The language I've seen would remove "reasonable belief" as a defense altogether. This, even in cases where a constitutional right, generally, had not been established. I think it's fair to ask whether same sex marriage would have been judicially established had the Court known it was opening every local clerk up to liability for not having a procedure for recognizing the legitimacy of a same sex union before its decision establishing same sex marriage as a right. That is to say, the bill would severely hinder any future positive developments in the establishment of rights under the Constitution bc it would invite unending litigation with predefined winners. Basically, the removal of "reasonable" as a defense is the same evil as our current law, but in the opposite direction.

    Amash's bill would establish per se liability (that is, no need to prove mental state) for acts that had previously not been established as unlawful. Per se (or strict) liability only works where there is a preexisting, explicit standard of measurement. That's why the Plaintiff bringing such a suit is awarded the favor of not having to prove ill or negligent intent, and all that's required is proof of the act: the specific act alleged had been predefined as unlawful. Pretending otherwise is why judges invent concepts like QI for all but "clearly established" acts. A world where per se liability attaches to acts later defined as unlawful and where "reasonableness" is not available as a defense, is a world that necessitates the "clearly established" principle to balance the scales of justice away from ex post facto liability.

    Of course, none of this judicial invention is necessary, where REASON is properly defined and established in the places where it belongs. Unfortunately, Amash's solution would only continue to shepherd the law upon the path of perversion it's been ambling along for decades now; it's of a piece conceptually with the same evil it attempts to call out. Whether it's merely a slapdash attempt at virtue-signalling or a purer product of ineptitude, Amash's bill does no favors to Justice or the unfortunates for whom our Lady's protections have been corrupted to leave bare.

    1. It is not reasonable to consider that a person under that type of stress is reasonable.

      Combat is not reasonable. You act according to your highest level of training.

      The issue here is that the mentality of police is that of combat and warfare. This is because there is no civilian control like there is with a sheriff.

      When they use the term reasonable in court in reference to police, they are mocking us.

  13. Don't courts and cops tell people all the Tim that ignorance of the law is no excuse?

    1. The Supreme Court has said that the police do not have to understand the laws they are sworn to enforce: Hein v. North Carolina

      1. Yeah, that’s one that makes my ass itch.

        People are responsible if they unknowingly break a law, but cops are not.

        That’s fucked.

    2. Only for us poor suckers who aren't government employees.

    3. What they mean is ignorance of "positive law" (or less archaically, "posited law") is no defense. Ignorance of positive law is, by definition, unreasonable because (at least traditionally) a reasonable person would be aware of the laws that apply to his/her acts. Of course, the explosion in the number of laws and regulations has stretched this maxim beyond its breaking point, which is why I say "traditionally".

      "Ex post facto" is the principle that applies to acts later defined to be unlawful and to which ignorance should always be a defense. That is to say: "ignorance" is reasonable because, where a law was not established, there was nothing "to know" (or for which liability could be established for not knowing). One should not face legal jeopardy for not knowing that which did not exist at the moment in time being examined.

      Of course, this is a different concept entirely from application of broad constitutional rights to specific acts. Judges are so sensitive to holding police accountable for their acts and always reference "split-second decisions" because they hold court for hours on end and accept well-reasoned yet diametrically-opposed argumentation about the propriety of these acts. At the end of the day, the best we can do is allow a jury of the defendant's peers to examine the reasonableness of his actions in light of the law as it existed at the time of his acts. If genuinely reasonable disagreement exists about the legality (or constitutionality) of an act, justice requires a finding of no liability.

      So, there's "unlawful" as defined in a perfected state from a point of omniscience which is singular, but there's also a grey zone on both sides of this point where an act can be both "unlawful" and "reasonable". Justice requires that this grey zone be one of no liability, as well.

      The current state of the law regarding the "clearly established" standard requires the precise point of unlawfulness to be explicitly predefined regarding a specific act before liability can attach (or even be considered). This shrinks both the zones of justiciability (the right to seek redress for wrongs) and liability (the right to attain redress for wrongs) well-short of that which has been traditionally considered "just".

      The proper point of justiciability is broad and includes a second zone surrounding the outer edges of the "grey" zone of reasonableness; within this zone, a case can go to the jury. The proper point of liability is narrower and exists only beyond the borders of the grey zone of reasonableness. In our system, a plaintiff should have the right to ask a jury to define the boundary lines of this grey zone after it's being apprised of the reasonableness standard and received evidence from advocates of both parties' positions. This is the way.

      1. Fantastic read.

        However, I believe jury oaths defeat the outer zone and defeat any attempt at review of the constitutionality of an action.


        1. Jurors swear an oath to render a verdict according to the evidence and the law.

          While they are not allowed to define the law, only apply it, they can render judgments according to the law as the judge has defined it for them. For instance, in a criminal case where the admitted evidence includes statements from the defendant, the judge has a pattern instruction for the jury defining the constitutional right to remain silent and all the principles expounded by case law since (i.e., was it an “in custody” statement; if so, was it uttered post Miranda; was it freely and voluntarily made, etc). The judge tells them they can only consider the statement after a determination that the authorities acquired it constitutionally.

          So, juries can be empowered to render judgment about the constitutionality of an act according to the rules of what is and is not constitutional.

          I could imagine a civil action instruction to first determine whether an act violated a constitutional right; and only second, if so, whether the act was reasonable given the circumstances as the jury finds them (according to the evidence).

          Sheriffs are constitutional officers which traditionally carry the type of immunity offered the state, i.e., sovereign. It would not surprise me to learn 1983 style actions’ codification was related.

          The beauty of the reasonableness standard is that it is water, in the Bruce Lee sense.

          1. "Jurors swear an oath to render a verdict according to the evidence and the law."

            This being my point.

            My oath is to the Constitution. I have no reason to support the War on Drugs or any law pertaining to it. I will NEVER support it in court.

            If a person is arrested for possession and fights the police during the arrest, I will find for the defendant. The police have no right and no business arresting him for this made up 'crime' so he has an absolute right to fight back using similar (deadly) force.

            This means I can never be on a jury. I won't support the VAST majority of laws on the books today in any court of law.

            The underground railroad worked because so many people believed as I do that the law is only valid when we consent to it and that the jury is the last line of consent validation.

            I am not able to support the underground railroad today because to do so I would have to lie in court and swear an oath that I can never uphold. This I will not do.

            But, this allows the state to assume my consent because my peaceful dissent, my speech, is banned in court.

            I should not have to swear allegiance to anything to be a juror as swearing allegiance in and of itself is a bias not to the people I am to represent but to the government that made the law. This limits speech and is at its core, anti-American.

            IMO jury oaths are number 1 reason we have fake pleas and that such a huge majority of people plea even when innocent.

            1. Indiana’s constitution explicitly recognizes jury nullification, I just learned.

              The number one reason for false pleas is the chasm between a sentence after a negotiated plea and a sentence after a guilty verdict; however, explicit allowance for jury nullification would change the risk assessment of going to trial by providing another avenue of acquittal.

              I follow your reasoning regarding jury oaths, but it would put the right to a trial by jury at odds with the right to equal protection under the law. Another juror may think no justification ever existed for an altercation with an officer or deputy. If every juror set an individual standard for determining what is constitutional, the theoretical concept of equality under the law would evaporate b/c the “rules” of constitutionality would become heterodox, in practice.

              Also, people have rights. Police/deputies have authority granted by the people. Speaking of police “rights” is a bugaboo of mine. It’s not mere semantics bc widespread insertion of the word into a place it doesn’t belong has warped our sense of the appropriate pecking order.

              1. "If every juror set an individual standard for determining what is constitutional, the theoretical concept of equality under the law would evaporate b/c the “rules” of constitutionality would become heterodox, in practice."

                Heterodox is the point of Federalism isn't it? Not seeing the downside here. The point of a jury is to glean the current, local, popular view, not to impose one.

                This means the standard for what is and what is not Constitutional is local to you where you live.

                Jury nullification makes it possible for local norms to destroy non-local political agendas.

                If you have time and can articulate an example of the how equality under the law would be negatively impacted, I would love to hear your thoughts.

                Great chat. I really have enjoyed this dialog. Thank you for your time and effort Norm A Tive.

                1. I’ve enjoyed also; it’s a pity that polite disagreement owes so much of its value to rarity.

                  The premise for calls to an observable standard is admittedly a legal fiction. CJ Roberts’ balls and strikes is hooey; reasonable minds disagree ab application of agreed upon standards as a matter of course (and, sometimes, ab which standard applies).

                  Still, power resides in pretending; it provides a bulwark against the randomized chaos of opinion by at least gathering the flies around a single light (it can be hoped).

                  As for local determination of constitutional principles and equal protection, anti-miscegenatIon laws come to mind.

  14. the biggest part of the problem with qualified immunity is how broadly it is applied. it has been twisted to the point where civilians never have any rights, and cops never have any accountability. it has become common for a cop to get off with limited to no consequences for actions that would get anyone else thrown in jail. if it was just being applied to honest mistakes, or being used to shut down frivolous lawsuits, we would not be talking about it. it is being used instead to allow policing standards that violate people's rights by default with no punishment when cops cross the line.

    1. Yep.
      But fixing that would be hard, and might hinder progress.
      Thus everything but QI elimination is verboten

      1. Thee answer is yes or no. There are no middle solutions.

      2. The only solution is the elimination of qualified immunity when cops DO cross the line and abuse their power!

    2. if it was just being applied to honest mistakes, or being used to shut down frivolous lawsuits, we would not be talking about it.


  15. And in his view, federal judges should not be playing Monday morning quarterback when it comes to such matters. "In those crucial seconds," Thapar insisted, "officers don't have the time to pull out law books and analyze the fine points of judicial precedent."

    But regular peons are expected to? That makes sense, it's beyond the capabilities of the people paid to do so professionally, but everyone else who has little more to rely on than a boring semester in high school, gossip and hearsay, and news blurbs if they even read the news, is supposed to.

    1. Note Thapar's implication that officers (unlike the rest of us) cannot be expected to follow clear judicial precedent even when it exists.

  16. QI is the biggest example of activist judges I have ever seen. It was invented by the judiciary as a bullshit rationale to avoid holding bad state actors to account.

    If the legislature wanted to give them immunity in that manner they would have passed a law to do so. The fact that QI came about as a result of a court ruling that has then been expanded by more and more court rulings is ludicrous.

    It's all a scam to keep the legislature insulated from the bad outcomes of QI, while the judiciary gets to avoid having to scrutinize police activity.

    It's no different than the farce of a prosecutor who works with the police and needs the police to be happy in order to be able to after the criminals "presenting evidence" to a grand jury via proceedings that will never be made public.

    There's no way that prosecutor is going to do anything other than tank that case on purpose. The victim alleging misconduct should be able to choose their own lawyer to present to a grand jury who is completely independent and not part of the law enforcement circle jerk.

    It's all a farce to prevent the powers that be from ever being held accountable.

  17. “Officers don’t have the time to pull out law books and analyze the fine points of judicial precedent.”

    After an hour-long impasse, "despite Chamberlain's repeated pleas that the officers leave and the availability of a relative on-site to attempt to defuse the situation, the officers forcibly removed Chamberlain's door from its hinges."

  18. One of the greatest advantages of the totalitarian elites is to turn any statement of fact into a question of motive. The FACT is that, in many of these cases, the police violated a person's Constitutional rights. However, judges have extreme contempt for facts as such, for in their opinion fact depends entirely on the power of the person who can fabricate it...and when fact becomes motive, a person can fabricate anything.

  19. So, those who are supposed to be "enforcing the law" get a pass because "they are not supposed to know everything about the law", but the rest of don't? What a LOAD!

  20. “Officers don’t have the time to pull out law books and analyze the fine points of judicial precedent.”

    Even under current QI that will become an eventuality so I don't see their point.

    1. Delay of justice is denial of justice.

  21. This concern about "split-second, life-or-death decisions" comes up all the time when judges defend qualified immunity, and it's so overblown. The substantive constitutional standards do not require cops to make perfect decisions or to be constitutional law experts. The standards ALREADY incorporate reasonableness under all the relevant circumstances. That builds in some margin for error. Adding qualified immunity on top of that allows police to act in objectively unreasonable ways.

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  23. i don't often murder guys slowly, by asphyxiation...but when i do i'm sure glad i can claim qualified immunity

  24. today we learned that 8-9 minutes is split seconds in cop ass kisser land

    1. You mean you learned that. No one else is buying it. Split second decisions made by cops can end up wrong at times and they should have protection if they make a mistake. Who do you think will take the job of being a police officer if they have no protection from lawsuits and indictments for doing the best they could but the outcome is bad? Deliberate actions are what need to be looked at and given no protection.

      1. Qualified immunity is granted when a precedent is lacking, not because a split second decision was made. The immunity granted to cops to protect them in the case of a mistake is the opposite of the reason given for qualified immunity. Judges who say otherwise are just rationalizing to protect bad cops. Worried about protection for cops? Just look at how far beyond reasonable protection courts have gone and then try to claim we need to focus on cop protection. By the way, why do you think we should be ready to grant protection to cops in cases when they do their best? How often does that happen?

      2. The jury will decide. If a cop can't live with it, don't be a cop. Plenty of people will still take the (usually high-paying) job.

  25. At the risk of sounding cynical regarding the comments of the judges on Qualified Immunity, I'm given to pose the following question. Had a member of their families, or a friend suffered from questionable police action, what might we be hearing from them on this Qualified Immunity business? I wonder.

  26. When you can't reform the criminals give up and disband the police. I wonder why no one ever thought of that before? As long as you can afford security guards it should be fine.

  27. “ We have no business," Ho wrote in Winzer v. Kaufman County (2019), "second-guessing split-second decisions by police officers from the safety of our chambers."

    Contrasted with “Detached reflection cannot be demanded in the face of an upturned knife.” Brown vs United States 1921 (OW Holmes).

  28. When all participants of a "system" are feeding from the same nose-bag, free from competition -- and are allowed (by your neighbors and friends -- hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can't honestly call it a "justice" system. It's a system of abject tyranny.

    1. There is, I think, a profound misunderstanding among criminal justice purveyors and their supporters about what, exactly, people are so angry about. People are not angry at most police officers personally – to be so would be foolish and myopic. We are, instead, angry at the system – the bureaucracy – that exists, in large part, to do naught but ensure its own existence and ever-creeping growth at the expense of those they supposedly serve. The system exists to perpetuate the system and that perpetuation comes at the cost human life, yes, but also in the form of exorbitant fees, fines and levies for low-level and victimless “crimes” that are committed daily by a populace who could never hope to know or understand the countless laws, rules, restrictions and regulations that have been foisted upon them over the last 231 years. People are angry that the poorest and most marginalized among them are the ones who bear the burden of the system. They are angry about a system that promises justice but delivers the opposite. They are angry that the agents of that system, be they judges, lawyers, prosecutors or police, are much more concerned about the system itself than they are the justice that is supposed to come before it.

  29. Relying on "Precedent" is nothing less that "JUDICIAL MALFEASANCE".

    For 'precedence' to apply, the cases would necessarily be "IDENTICAL IN FACT" and not. "SIMILAR IN SOME ASPECTS".

    It is LAZINESS or political agenda, but CERTAINLY NOT LAW.

  30. Judge Amul Thapar, a graduate of the University of California Berkeley School of Law, wrote "Officers often find themselves in positions where they must make split-second decisions in dangerous situations…In those crucial seconds officers don't have the time to pull out law books and analyze the fine points of judicial precedent." OK, judge, officers more often find themselves in Dunkin Donuts, than in dangerous situations, therefore, what? Qualified immunity for every cop every time?

    Officers don’t have the time for detail…uh, you don’t mean details like laws and Constitutional rights do you? Judge Thapar, Berkeley guy, have you read any previous cases containing invocations of “qualified immunity?” If so, did you notice that granting such vile immunity hinges entirely on “fine points of judicial precedent?” Your claim seems to concede a good reason to get rid of “qualified immunity,” cops don’t have time to consider the only reason “qualified immunity”exists—whether “fine points of judicial precedent” addressing the very act the officer is contemplating exist and justify the act.

    Judge Amul Thapar, University of California Berkeley School of Law grad, seems to believe “American citizens, you have rights, but they don’t count if cop is around. He doesn’t have time for those details and besides, by that point, he may have killed you ‘for his own safety,’ anyway. What else can he do in that split-second right before all those other split seconds preceding the full seconds that will eventually turn into full minutes?”

  31. Judge James Ho, a graduate of the University of Chicago Law School wrote "We have no business second-guessing split-second decisions by police officers….” Well, Judge, call it second-guessing if you want, but Appeals Court judges actually do have business judging the decisions made by police officers. You see, Judge, when the trial of a police officer is before an Appeals Court, a judge may be called upon to judge. If I am wrong about that, why “by police officers?” Why isn’t it "We have no business second-guessing split-second decisions by anyone…?”

  32. Everyone else has to figure out whether their actions are violations or rights in real time. Cops are supposed to be professionals, but they are held to a lower standard.

  33. OK WTF is it with the spam on the Reason site? I mean every single goddamn comment page.

    1. ^^^^^^ Agreed. I flag every one of them I see.

  34. I guarantee every one of these judges would smack down anyone besides a cop who came before them saying it was unreasonable for them to know their conduct violated some obscure law, let alone constitutional rights or laws about killing people.

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