Qualified Immunity

Joe Biden Isn't Ready To End Qualified Immunity

In attempting to appeal to everyone, the Democratic presidential candidate misses the mark.

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Presumptive Democratic presidential nominee Joe Biden has spent decades managing a "moderate" balancing act. The result is a wobbly policy platform that attempts to appeal to everyone but feels fully satisfactory to few.

Take the candidate's collaboration with Bernie Sanders, the Vermont senator who recently ran against him for the Democratic nomination. Over the last few months, the duo's "Unity Task Force" tackled a host of issues, including qualified immunity, the legal framework that lets public officials who violate your rights avoid federal civil rights suits.

A tripartisan push is underway to change this. Reps. Justin Amash (L–Mich.) and Ayanna Pressley (D–Mass.) introduced a bill recently to end the doctrine entirely. Though the GOP has been slower to warm to the subject, Sen. Mike Braun (R–Ind.) crafted his own legislation that would radically alter qualified immunity, allowing officials to invoke it only when relevant case law, federal regulation, federal statutes, and state statutes specifically permit the conduct in question—essentially reversing the current approach, in which officials are held liable only if the way they violated your rights has been described with exacting detail in previous case law.

Where does Biden fall on the issue? It's not completely clear. "We will also act to ensure that victims of federal, state, or local law enforcement abuses of power can seek justice through civil litigation by reining in the doctrine of qualified immunity to increase police accountability," the task force's recommendations readWe can't be sure what exactly that means, though we know that the Sanders faction wasn't happy about it. The panel "got into heated debates" over qualified immunity specifically, reports Politico. "Progressives pushed to end it, but Biden appointees agreed only to sign onto a commitment to rein in the rule."

"It either exists or it doesn't," noted journalist Radley Balko on Twitter. "You can't tell the courts to only enforce it in the cases where you support it."

Biden's hesitance here isn't surprising in the context of his attempt at a middle-of-the-road modus operandi. But even the Democratic House police reform bill proposed to eradicate the doctrine for cops. (Amash's and Braun's respective bills apply to all public officials, such as corrupt college administrators.) Biden's tepid response here is more in line with moderates in the Republican Party than his own party.

Remember that Biden was a spirited force behind the 1994 crime bill. With its three-strike rule, that landmark legislation saw many people sentenced to life in prison for a violent felony if they had been convicted of two prior offenses, including drug crimes. But his problematic record does not begin and end with that law. Biden conceded last year that one measure he helped push through the Senate—sentencing disparities for crack versus cocaine—was a "big mistake." Last month he said concerns surrounding his criminal justice record are "legitimate."

Pledging concretely to scrap qualified immunity is an opportunity to protect the sorts of vulnerable Americans he failed to consider in 1994. Consider some of the people who have used qualified immunity as a shield over the years. Like the cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant. Or the cops who assaulted and arrested a man for standing outside of his own home. Or the sheriff's deputy who shot a 10-year-old, or the officer who shot a 15-year-old. Or the prison guards who locked an inmate in two cells, one filled with raw sewage and the other "massive amounts" of human feces. 

Biden's demurral on qualified immunity makes more sense—as politics, not as policy—in light of the candidate's cozy long-term relationship with police unions. He was at the front lines of a yearslong effort to pass a federal Police Officer's Bill of Rights, which would have made it considerably more difficult to investigate police misconduct internally. Though the bill never become law as a standalone piece of legislation, an altered version was included in the Biden-Thurmond Violent Crime Control Act.

Just five years ago, Biden was lauding his 1994 crime bill at a dinner for the National Association of Police Organizations (NAPO), a group of police unions and related associations. "There wouldn't have been a Biden crime bill," he said in May 2015, "there wouldn't have been that crime bill that put 100,000 cops in the street in the first place were it not for the fact that from the very beginning [NAPO] was the staunchest, staunchest advocate for it."

But that group doesn't seem any happier with Biden's compromises than criminal justice reformers are. "For Joe Biden, police are shaking their heads because he used to be a stand-up guy who backed law enforcement," said Bill Johnson, executive director of NAPO. "But it seems in his old age, for whatever reason, he's writing a sad final chapter when it comes to supporting law enforcement."

As of now, though, that final chapter doesn't seem to include a sunset on qualified immunity.

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  1. It’s too bad. Qualified immunity should be abolished. It has no textual basis in Section 1983. And it is applied inconsistently. Sometimes, as in the Tony Timpa case, courts seem to bar lawsuits for even egregious constitutional violations, if courts haven’t confronted almost exactly the same facts. Other times, courts don’t take that extreme position, and allow a lawsuit even when past constitutional violations involved different facts, like a different type of excessive force, or exposing prisoners to a different type of carcinogen. See Headwaters Forest Defense v. Cty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002) (different type of excessive force); Vega v. Semple (2d Cir. 2000) (different carcinogen). Yet other times, courts deny officials qualified immunity in employment-law cases even where the law seems to have been somewhat unclear. There is no rhyme or reason to how qualified immunity is applied, even though it is a nuisance for plaintiffs. It does not give rise to valid reliance interests, and thus should be abolished.

    In theory, qualified immunity isn’t justified by the fact that a new case has different facts than a prior constitutional violation found by the courts. As the Supreme Court explained in United States v. Lanier (1997), “The easiest cases don’t even arise. There has never been…a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.’”

    1. It ain’t too bad yet. It’s a little too early for definitive statements. Biden owes his political life to African American voters and this is one of their main concerns. I feel good about it.

      1. I don’t think many older black voters actually support getting rid of QI and Biden knows that.

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  2. If “moderate” means “giving more opportunities for government officials to screw the people and get away with it,” Biden is with the moderates.

    Of course, the more protected government officials are from suits, the more willing they’ll be to implement the Democratic big-government wish-list.

    1. If “moderate” means “giving more opportunities for government officials to screw the people and get away with it,” Biden is with the moderates.

      “Moderate” seems to mean “the worst of both sides” when it comes to Biden,

  3. Your immune system weakens as you age, so it’s natural that Biden would approach disposing of qualified immunity with caution.

    1. Notice how the birdbrain Binion does NOT quote Brain-Damaged Biden verbatim. Now why do you think that is? Because reading BDB’s utter incoherence is even worse than hearing it.

      1. Speaking of reining in qualified immunity is at best ambiguous. What is meant there? In any event that position is more plaintiff-friendly than Trump´s veto threat as to abolition bills.

    2. Are you saying the headline is really about Joe’s immune system?

  4. Another area where qualified immunity is misapplied is First Amendment cases (involving public employees fired for their speech). If there is a brick on one side of the scale, and a feather on the other, it is obvious which is heavier. But judges will claim the law is unclear — not obvious — in most First Amendment cases involving the Pickering balancing test, even when it is flamingly obvious that the employee’s interest in speaking outweighs any legitimate interest the employer might have in regulated the speech.

    Qualified immunity doesn’t just apply to police officers. It applies to all government officials. It is frequently used to prevent students at state universities from suing for restitution or other compensation for unconstitutional speech restrictions, as Samantha Harris of the Foundation for Individual Rights in Education notes. Courts sometimes misapply the doctrine to block lawsuits for compensation, even if it is rather obvious that the student’s speech was protected and should not have led to discipline, simply because the Supreme Court and federal appeals court for the region in which the student is suing have not previously addressed a case involving strikingly similar facts.

    1. This is why I suspect ending Qualified Immunity will wither on the vine and be forgotten in six months. Unless they can somehow magically silo police officers as being exempted from QI while leaving everyone else in the government still covered by it, it’ll never happen.

  5. Considering “Crazy Uncle” Joe’s recent cognitive dissonance, I need to see evidence that Joe understands exactly what Qualified Immunity is and what it does.

    1. Joe knows perfectly well what Quantified Immunization is, he practically wrote the book on look, here’s the thing, when you go back 40 or 50 years ago to the the the when Clinton was in the thing and nobody was more relevant than I was in starting this conservation of when it was the times were different then and I’ll say it again, nobody has been stronger than me at getting a handle on it.

      1. Did a single sentence of that make sense to you when you wrote it?

        1. … that was the point.

          He was parodying Biden’s manner of disorganized extemporaneous speaking and it whooshed over your head.

      2. How dare you, you lying dog-faced pony soldier!

  6. Does abolishing QI mean that virtually every cop would be sued every time he acted? Because most interactions with cops are adversarial, paddy wagon chasing lawyers would have a field day shaking down cops and taxpayers for every imagined slight.

    1. QI doesn’t currently keep people from suing cops. In fact without a lawsuit, QI never gets invoked. I’m sure there might be a few more lawsuits without QI, but I can’t imagine it would be any significant increase.

      Many of the theoretical frivolous cases referenced would require contingency arrangements for the lawyers to get paid, because average citizens can’t afford the legal fees otherwise. Lawyers aren’t likely to support frivolous lawsuits from average citizens because they aren’t likely to get paid enough to cover their time unless they win.

    2. Let’s then discuss another reform – loser pays.

    3. Eliminating QI probably wouldn’t have the dramatic effect everyone thinks it would have. People would still mostly file suit against the department or the city. Suing the officer in civil court (even if successful) probably wouldn’t net much in terms of financial award anyway. And I predict (again) that if QI did get eliminated, other systems would become engaged to shield the officer from damages such as union-provided malpractice insurance that would be paid for by the taxpayer.

      1. But that is the reason New York is pushing for police to have malpractice insurance. It probably become the standard in blue states. I am confused as to why California has not already done it.

      2. What would be the mechanism for taking a LEO off the street if their malpractice insurance rate was too high? Once again, no one is minding the mint.

  7. This man has been in office since 1973 and is the primary architect behind multiple acts of congress that definitely made this police state grow to the detriment of black americans particularly.

    That anyone could possibly consider him the “BLM Candidate” is mind boggling. If police-state issues are a big concern of yours, voting for Biden is like the chickens voting for a fox to watch their henhouse. WTF

    1. He only won the primaries because he was touted as the only candidate who could win back the blue collar white vote from orange man. He can’t move to far over to the BLM side or they might go back.

      1. Well, that and *someone* told every other candidate to bow out

      2. The DNC doesn’t give a crap about the white vote. They didn’t want to lose their Wall Street and corporate backers, who would have walked if Sanders or Warren won.

  8. I’ve been following Biden’s campaign the past few months and have concluded he’s in the initial stages of dementia which makes him over-qualified for the position of POTUS.
    He should try for the next opening for the SCOTUS where his senility will be easily welcomed by all the “living document” idiots on the Court and in academia.

  9. Uncle Joe is first and foremost a career politician and opportunist. The leftists think he will give them everything they want because he’s a senile old coot, but money still talks loudest to him, and he’s not about to give up on lucrative government contracts for converting military equipment for police use.

    1. The only thing leftists really want is complete control and absolute power over the portion of the population who disagree with them.

      They’d rather burn everything to the ground than allow other people to live according to other beliefs, even if they are also left to live according to their own beliefs

    2. Maybe. Then again, after he wins, if he doesn’t get out of the way quietly, they have ways…

  10. “In attempting to appeal to everyone, the Democratic presidential candidate misses the mark.”

    Anybody who thinks Biden will stand in the way of social justice warriors, environmentalists, or progressives when they demand student loan forgiveness, the Green New Deal, or Medicare for All is a fuckwit.

    The more authoritarian and socialistic the Democrats become, the more libertarian capitalists should become Republican, and giving Joe Biden the keys to the bus under these circumstances may objectively be the most authoritarian and socialist thing we could do right now.

    P.S. As the odds of the Democrats taking the Senate grow better, the argument for libertarian capitalists to vote for President Trump grows stronger.

    1. I think the progs are counting on Biden becoming incapacitated by Alzheimer’s or a stroke within the first year of his presidency. It will be very telling who his VP pick is. If it’s Warren, then we are truly fucked. Come to think of it, we are fucked no matter what. No way Trump wins a second term at this point.

      1. I’ve said the over/under on that is 18 months. But I believe the 25th amendment being used won’t happen until after the midterms if Biden is elected.

        Here is the problem, if they do it before the midterms or even hint at it, the dems lose the midterms because of Biden’s VP pick who will not appeal to moderates or blue collar workers.

        1. The dems are going to lose the 2022 midterms if they have the presidency no matter who the president is. Best case scenario-Covid will be gone or under control but economy will still be in the shitter and inflation will be at 1970s levels to pay for the multi trillion stimuli, GND, Single payer healthcare, etc. Worst case: we still have Covid and a ruined economy plus a bunch of self righteous Dem assholes telling us how great everything is.

    2. >>odds of the Democrats taking the Senate grow better

      dude no.

  11. >>the Democratic presidential candidate misses the mark.

    you write this as though he even knows what fucking time zone he’s in.

  12. It doesn’t matter what Joe is ready for.
    If elected, he will be president for as long as it takes the cabinet to invoke the 25th amendment. Pay close attention to the person anointed by the party elite to run for president of vice. She will be the one running things, unless sweet Nancy gets her dumped as well and takes over herself.

    1. See my reply above. I don’t think it will happen until after the midterms because of his VP pick who will not be acceptable to anyone but the left wing part of the democratic party. They would lose the House and the Senate.

  13. Reporter: Mr. Biden, what are your ideas on qualified immunity.
    Biden: It depends on the vaccine.

  14. Damn and I thought Joe Biden would be from outside the Beltway and a man of the people.

    Libertarians are often wrong.

  15. If Joe believes in de-fund the police and is elected President, he should start with the Secret Service, set an example for the rest of the country.

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  17. Joe thinks qualified immunity means that, as a Senator, he qualified for immunity from sexual assault investigations. After all, it did seem to work.

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  21. Read Senator Braun’s bill. It solves the problem of qualified immunity perfectly by placing the burden of proof that the conduct was authorized on the official rather than the burden of proof on the plaintiff that it wasn’t. It still has the potential to protect cops that follow directives correctly from being sued frivolously while also ending the abuse officials perform because of current qualified immunity standards. But, alas, the bill will never get to President Trump’s desk because it was written by a Republican, so Democrats will block it out of spite like they have everything else.

    1. Whereas Republicans are always willing to compromise with Democrats.

      1. That’s unfortunately true. It’s been a one-way reach across the aisle for decades. It’s like the Republicans in Congress have a “kick me” sign taped to their butts.

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  23. I was disappointed that Democrats went with Biden, but I’ll be damned if he hasn’t proved to be just the moderate we need, dodging bullets left and right when a more lefty candidate would feel compelled to be on the cutting edge of every issue. And, given the dearth of speaking opportunities, we have minimized his gaffe exposure as well. You Trumptards are so fucked. Cry about fake voter fraud. Go ahead, cry. It’s what you do when you lose.

    1. Wow. Breaks from reality are a sign of psychosis. Unless this is sarc. As sarc, it works rather well.

  24. Biden and Trump both know; that, without their police to fleece and force us, they are just impotent dotards slowly desiccating or engorging in an office many miles away.

    None in power will willingly break the handle of their ultimate tool of power.

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