Qualified Immunity

Cop Who Allegedly Kneed a Subdued Suspect in the Eye '20 to 30 Times' Gets Qualified Immunity

"I believe there is sufficient evidence of a clearly established Fourth Amendment violation," writes the dissenting judge.

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A police officer who allegedly kneed a suspect 20 to 30 times in the eye after the man had been restrained is entitled to qualified immunity and thus cannot be sued over the incident, a federal court confirmed Monday.

Charles McManemy, who law enforcement suspected was making a drug delivery, claims that Deputy Bruce Tierney of Iowa's Butler County Sheriff's Office violated his Fourth Amendment rights by using excessive force after McManemy had surrendered with at least four cops already on top of him. Following the incident, McManemy says he suffered lasting damage in his eye with increased light sensitivity and "floaters." But while a majority of the U.S. Court of Appeals for the Eighth Circuit held that Tierney did indeed violate McManemy's rights, his suit "fails for a different reason": the right had not yet been "clearly established" by a court precedent.

"McManemy must point to a case that 'squarely governs the specific facts at issue'" to prevail in withholding qualified immunity from Tierney, writes Circuit Judge David R. Stras. Such is the standard required by the legal doctrine, which shields public officials from civil liability: if a plaintiff cannot point to a near-identical scenario of police misconduct that has already been litigated and condemned in pre-existing case law, they may not sue the officer or officers who harmed them—even when the court finds the conduct in question violated their rights. 

Stras cites two 8th Circuit excessive force precedents—Gill v. Maciejewski (2008) and Krout v. Goemmer (2009)—that he says are different enough from what McManemy endured that Deputy Tierney could not have known his conduct was unconstitutional. Stras also ruled in favor of other deputies, who McManemy sued for not intervening. Of particular interest: Stras emphasizes that McManemy began resisting after voluntarily surrendering and laying face down on the ground; McManemy countered that he has a shoulder injury and was reacting in pain as he was handcuffed and tased. 

The Supreme Court created the "clearly established" standard in Harlow v. Fitzgerald (1982), cutting against Section 1983 of the Civil Rights Act, which previously allowed the American public to sue public officials when their rights were violated. While they still technically have that right, qualified immunity has made it considerably more difficult. Many plaintiffs, such as McManemy, are denied the right to bring a lawsuit if the "clearly established" threshold is not met. (Qualified immunity has no impact on criminal prosecution.)

Though it was theoretically constructed to protect civil servants from vacuous lawsuits, it has instead emboldened bad behavior. As I wrote earlier this month:

The legal doctrine has protected two cops who allegedly stole $225,000 while executing a search warrant; a sheriff's deputy who shot a 10-year-old boy while aiming at the child's non-threatening dog; prison guards who forced a naked inmate to sleep in cells filled with raw sewage and "massive amounts" of human feces; two cops who assaulted and arrested a man for the crime of standing outside of his own house; two officers who sicced a police dog on a surrendered suspect. That list is not exhaustive.

Writing in dissent, Circuit Judge L. Steven Grasz notes that it is, in fact, clearly established by current precedent that a needless show of force after someone has been overpowered is unconstitutional. "Viewed in a light most favorable to McManemy, the facts establish Deputy Tierney repeatedly—twenty to thirty times—kneed McManemy in the eye area after he was subdued and restrained," he writes. A jury, he says, could reasonably believe that the force occurred after the situation necessitated it. But McMenemy won't have a chance to present his case to any such jury, even though, as Grasz concludes, it has been "clearly established that gratuitous force" toward a subdued suspect "violates the Fourth Amendment."

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  1. What’s the hopeful remedy for this? Are we hoping to eliminate the doctrine of qualified immunity writ large, or just qualified immunity for the cops?

    1. For anyone wondering why I ask, or what I’m getting at… this is what I’m getting at:

      The national dialogue about racial injustice in the aftermath of the death of George Floyd in Minneapolis police custody has brought renewed attention to “qualified immunity,” a legal doctrine that some advocates believe has helped insulate police officers from accountability for misconduct.

      But any major changes to that doctrine would also likely affect another group of government workers: public school educators.

      Qualified immunity protects certain classifications of government officials from personal liability, including money damages, in civil lawsuits in federal courts, as long as the conduct in question does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

      The doctrine is available not just to police officers—including school police officers—but to any government official exercising discretionary functions, and that includes teachers, principals, superintendents, and school board members.

      […]

      “This double standard has been a contributing factor in the anger and frustration spilling out into the streets,” Neily said.

      For education groups, the debate is a bit delicate. Most have issued statements recommitting their support for racial equality after the death of Floyd, but likely would be reluctant to have the protections of qualified immunity stripped from their members.

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      2. They are mistaken.

        There is Qualified Immunity and there is Absolute Immunity.

        Absolute Immunity applies to legal actions taken in the furtherance of your duties.

        Qualified Immunity applies to ‘honest mistakes’ and screwups that happen in the course of you legitimately trying to complete your duty. This has been expanded to ‘you can fuck anyone over as long as you do it differently from anyone else before you’ along with the idea that while the citizen must know all law, the people tasked with enforcing the law are free to be ignorant of it.

        QI can go. But getting rid of QI does not get rid of AI.

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        2. Harlow v Fitzgerald needs to go, not QI

    2. The best compromise in my mind would be a reversal of the protection: that QI can only be established based on case law instead it being assumed to apply except in exceptional circumstances. A couple of nuisance lawsuits which get turned away will lay the groundwork for the rest to be rejected.

      A decent portion of the examples in your article have to do with SROs (i.e. Cops) or administration acting like cops. I personally doubt teachers would be often impacted by QI’s removal. Plus the PubSec unions will finally have to spend their money on something besides politicking, which is an added bonus.

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    3. the only remedy is to start eliminating these cops

      1. I would like to suggest we start eliminating judges who cannot see that violating the constitutional rights of a citizen does NOT “fails for a different reason: the absence of a clearly established right.”, and the victim should be compensated while the perpetrator should be punished.

        1. Both? We could do both.

    4. The requirement for an previous, identical case needs to be eliminated.

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    6. Neither, Qualified Mmujity is sound and needed, This ridiculous standard invented and reaffirmed by the courts needs overturning. Get it in front of Gorsuch

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  2. Maybe we could weaken the doctrine a bit instead of getting rid of it entirely. Maybe change the wording from ‘clearly established’ to something where the person is acting outside the norms for their position / outside of their authority / etc.

    I don’t know, I’m open to suggestions.

    1. See the link I posted above. Because other “good people that are in the right professions” are also protected by qualified immunity:

      Hutton, of the Education Law Association, said there is room for courts to improve the way they apply qualified immunity doctrine without eliminating it, such as by ruling on more underlying constitutional questions so that officials have a better sense of what has been “clearly established.”

      “I would have some caution here,” he said.

      1. I saw that. I’m of the opinion that it would be less desirable to remove QI protection from cops while maintaining the current level of near total blanket immunity for all the other bad actors in every other level of government.

        It would be better to give them all a lower level of protection.

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    2. Or just dump it while retaining Absolute Immunity.

      QI only exists because before QI existed cops did not have a presumption of AI.

    3. Maybe apply a “reasonable person” standard, you know the standard all the rest of us must adhere to. If a reasonable person would be able to discern that kneeing a restrained person in the eye is wrong than they should be able to as well. Or maybe to expel a 6-year-old for carving a gun out of a pop tart. Or even refuse to issue a marriage license to a couple because you don’t agree with their lifestyle. It would be a nice change to make them live in the same world we do.

      1. Exactly. Harlow v Fitzgerald is the problem

  3. Just wait until democrats take over for good. This multiplied by 1000000

  4. OT: RIP Todd Nance

    1. yeah long live Todd Nance. dining with Mikey tonite.

    2. Opening statement from Wikipedia: “Todd Nance (November 20, 1962 – August 19, 2020)[1][2] was an insect that fed on human blood, usually at night. He was best known as the original drummer of Widespread Panic…”

  5. I’m the rare libertarian who supports qualified immunity for cops. Why? Because first of all, they face more threats in a day than most people do in a decade. It’s unfair to hold them to the same standard as the rest of us. Secondly, it forces us to hire good people who we think will be responsible and respect the rights of others. And without QI, many qualified people would avoid police careers for fear that they could easily be sued or prosecuted for doing their job. And finally, the solution to police abuse isn’t to punish it (who punishes the punishers? conundrum), but simply to decriminalize, and reduce police funding proportionately. After all, this was precipitated by a drug charge. Ultimately we must accept that the people are civilized and responsible (despite recent turmoil caused mostly by oppressive socialist policies) and we don’t need to be patrolled and controlled any more. Eventually government becomes small enough that you can strangle it in the bathtub. (And QI becomes moot.)

    Without QI we will have lower quality (and more) police protection, which puts all of us at greater risk.

    1. The problem with qualified immunity is that it allows gross police abuse like this instance to happen without punishment or any retribution for the victims. I’m sure there are also cases where QI rightly protects a government agent acting in good faith that don’t get as much attention. That’s why I’m not necessarily for complete elimination of it without seeing more data.

      Can we at least agree that there is room for reform in cases like this? I would rather see this put to a jury in civil court than dismissed on what feels like a technicality that is completely in the government’s favor. I have more faith in a jury than a judge when it comes to holding government agents accountable.

      1. I’m not sure I can agree there is room for reform. I’ve been on the business end of police interaction, and they treated me professionally. I would not have been reassured that I could sue them if they did something wrong. I think it would likely only create a more antagonistic interaction in many cases, which ends up hurting the wider society that needs police who aren’t extremely gun shy.

        Can we at least agree on decriminalization and gradually reduced police funding?

        1. I agree with decriminalization and gradual reduced police funding. But decriminalize what?

          1. Drugs and weapons (and sex). Decriminalize gradually of course. If it takes 10 years that’s fine by me.

        2. Well obviously decriminalization of many crimes is the ideal. But there’s much less support for that than seems to be for QI reform right now. It seems we should take whatever incrementalism we can get.

    2. Ending, truly ENDING, the Drug War would considerably reduce the number of police needed in the community. Ending stupid laws re “loose cigarettes” and other regulations doomed to failure and destined to be abused, would also solve some problems. But neither of those things are likely to happen. I have known and worked with more than a few cops, and every one of them I personally worked with was a stand-up professional. And they would not hesitate to be cops again: it’s in their blood. And, they didn’t base their career choice on getting special protection from the law.

      1. But neither of those things are likely to happen.

        Then you don’t believe in progress or paradise. Which is fine but then we’d be foolish to take public policy advice from you.

        every one of them I personally worked with was a stand-up professional

        I agree but many of them would likely find a different profession without the honor of QI, regardless of what they tell you. They know they have to work to retain our trust, and so that’s what they do.

        1. At the very least, the cops could stop committing perjury, and face prosecution when they do. They should man up, take one for the team, and serve their prison sentence.

      2. What about the War on the Unmasked?

      3. Is ending idiotic rackets that result in black markets going to end racism?

        Yeah, I didn’t think so.

        So let’s move on from reforming things and just complain about racism. Because that gets voters riled up and helps us at the polls.

    3. God damn. Extend absolute immunity to cops and you don’t need qualified immunity. QI exists solely to cover up for fuckups and bad actors. Its a free pass for police agencies to not give a damn about training or hiring ‘good people’.

      Am I taking crazy pills here? Am I the only one that’s heard of absolute immunity?

      1. OK so fight with SPQR70AD below who seems to oppose all immunity. If you win, let me know and we’ll go from there.

      2. No, bu it doesn’t really matter. The cops and prosecutors are on the same team. They only care about high conviction rates so that they can move up on the food chain/pig trough.

    4. Construction workers have a more dangerous job.

      1. Cops aren’t in the top 10.

      2. +1 reality

    5. cops are on the bottom of the list of dangerous jobs. take your copaganda and shove it up your ass

      1. OK so fight with Agammamon above who supports absolute immunity. If you win, let me know and I’ll show you where you go off the rails.

      2. It’s more dangerous to be garbage man, logger, or fisherman. Go Figure!

    6. Dajjal is somewhat right about QI.

      Having a job that requires you to physically assault people and take them into custody against their will is guaranteed to invite lawsuits. Even if you are a conscientious employee who strives to protect the rights of all citizens, there is a good chance that a dispute will arise at some point.

      Acting within the parameters of the actual job we are asking them to do should not incur any personal liability. We the people asked them to do it.

      It is when they go beyond the parameters of their authority that they should be at risk.

      In this particular dispute, it is the judiciary that deserves our scorn. Stealing a quarter of a million dollars is never within the parameters of the job. Well, unless you are stealing it for the government under asset forfeiture. But you can’t take it home. That is clear. The judges who claimed that this was not an established violation should be tarred and feathered.

      The fact that “we the people” don’t do anything about this is where the problem lies. We don’t care enough to insist in changes, and the system is opaque enough that we don’t know how to change the judiciary.

      1. Acting within the parameters of the actual job we are asking them to do […]

        When police (or any other government actor) are acting within the parameters of the actual job we are asking them to do, they don’t need Qualified Immunity, they have Absolute Immunity.

        Qualified Immunity only becomes relevant when they are acting outside those parameters. For example, beating people already in custody. Not something cops are supposed to do.

      2. It’s not only that, it’s arriving first on the scene of an accident, and rendering aid to someone who, if they survive, may be paralyzed or maimed for life.

        Or intervening in an assault that later breaks up a family

    7. Secondly, it forces us to hire good people who we think will be responsible and respect the rights of others.

      Citation fucking needed. We have some of the lowest standards for cops in the western world. Our cops are woefully untrained, the few that actually get fired for their bad behavior routinely move a few county lines over and get hired at another police station, have no obligation to know the law…

      1. We have some of the lowest standards for cops in the western world.

        OK and if we get rid of QI then we will have to lower the standards further. You just seem to want to argue for the sake of it. Getting hired by another station isn’t a problem that can be fixed by eliminating QI.

        Anyway despite the ‘low standards’, in my experience US cops are very well trained and professional. They don’t need to be reformed or defunded. We just need to decriminalize (drugs, weapons, sex, etc) and gradually reduce funding. Do you agree? Or aren’t you really a libertarian after all?

        1. First things first…

          Or aren’t you really a libertarian after all?

          No, I’m not libertarian or Libertarian, have never claimed to be, and am insulted you would suggest I am. The closest I have ever gotten to being a libertarian is when, as an independent, I voted for Libertarian candidates. Beyond that, while I am sympathetic to some libertarian ideas, libertarians/Libertarians as people are uniformly repungently immoral, unethical, and flat-out disgusting human beings, and I gag at the idea of being counted among you.

          So no. I am not, never have been, and –lacking severe brain damage– never will be a libertarian.

          OK and if we get rid of QI then we will have to lower the standards further.

          [Citation needed]. Our standards did not rise when QI was invented, nor are our standards (with QI) higher then other countries that lack a similar concept.

          Getting hired by another station isn’t a problem that can be fixed by eliminating QI.

          Actually, hitting people in the pocket book is a well known tactic to make them correct their behavior.

          Anyway despite the ‘low standards’, in my experience US cops are very well trained and professional.

          Cool anecdote. Your experience is not universal. What the data actually shows is that police in America are a threat to citizenry and dogs everywhere, are largely un-manageable, just about impossible to hold accountable, and so-on. Our police will perform a no-knock raid at the wrong address, murder the people inside, and get away with a slap on the wrist because “oh well”. And despite knowing that these tactics regularly lead to those kinds of results, they will stand up and insist that if they can’t murder the wrong people in their sleep, then the terrorists will win.

          As far as “well-trained” goes… well, they’re well-trained enough to know that all they have to claim is “I was afraid” and they can get away with murder. So I guess you have that one. Not sure that’s very “professional” of them though.

          We just need to decriminalize (drugs, weapons, sex, etc) and gradually reduce funding.

          Sure.

          You know what else we need? To realize that a group of heavily armed, beyond-the-law, protected-by-the-SCOTUS doesn’t need chumps like you “defending” them. They’ve got guns for that, and as the numbers show, they’re not afraid to use ’em.

        1. The USA needs a national database that exposes criminal cops!

    8. Fuck their protection and fuck you too.

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  7. Pure tyranny and sickening. I thought 1776 settled this?

    1. If only!

  8. It’s like something from 1984 novel and it drives me nuts every time I read a story about it. It touches a primeval nerve in me. It’s like these cops and judges are an occupying foreign army the way they exempt themselves from the law. They are a rotten gang. Fuck all of these people.

  9. “fails for a different reason: the absence of a clearly established right.”

    Ladies, and gentlemen, I give you tonight, for your consideration, the Declaration of Independence of the United States of America:

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

    If that is not clearly established, it is time to eliminate the Supreme Court, and resume dueling.

    1. The Declaration has no standing at the Supreme Court. It is considered a political document, not a legal one.

    2. + one pistols at 50 feet! Start with Trump and SLOW J0E!

  10. To make things worse, the court does not decide if the actions were unconstitutional, so a cop doing the exact same thing in the future would also get QI.

    1. Yes, it’s one of the many problems with how QI is applied currently.

      One starts to wonder if it’s a bug, or a feature.

  11. Is there any legal limit to the amount of pain a person has to endure without any attempt to get away from it or try to protect themselves from that wouldn’t trigger the standard “resisting arrest” charge?

    1. This is apparently a fairly common tactic for meting out extra punishment, particularly in prisons.

      Just give the guy in custody a little groin shot or a pinch in the side and when he resists, you get to wail on him.

    2. I mean, cops have characterized “he bled on me” as “assaulting an officer”, so…

  12. Well sure, hitting someone over and over in the face after they are in handcuffs is excessive force and that is clearly established. But what about a case where they used their knee???

    What? Oh, you have a case where they were kneeing someone. In the face? Oh. In the eye? The left eye?

    Hm.. yeah… that looks bad…

    Kneeing in the face… left eye… while handcuffed…

    Oh! But did the suspect have black hair? No?

    Yeah! I thought not!

    Qualified immunity, FTW!

    1. On a Tuesday?….

      The problem is Harlow v Fitzgerald’s “clearly established” standard, not QI

  13. The Eighth Circuit is America’s judicial backwater, full of right-wing cop succors.

    1. Police are a Progressive ideal.

      QI is a Progressive idea.

      Prohibition, the War on Drugs, banning prositution are ALL Progressive stances. Republicans have been Progressive since Reagan.

      The Nazis are here and have been since Wilson in 1915.

  14. A few years back the SCOTUS ruled that it’s not reasonable to expect cops to know the law in their state.

    Decades before that the SCOTUS ruled that you can’t sue cops unless it’s reasonable for them to know their actions were illegal.

    The obvious conclusion is that you just can’t sue cops… which sure seems to be supported by every “trying to sue a cop for the obviously illegal things they did” that gets there, no?

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  18. Why don’t we just pay some cops to beat up the Supreme Court justices that are in favor of keeping “clearly established” and see how quickly they change their minds.

  19. Cops are happy to abuse and batter anyone that QI doesn’t protect!

  20. The continued and ceaseless tyranny of the criminal B.A.R. Association perpetuating their fictional statutory jurisdiction and stacking their kangaroo courts with “judges” that could quote a single line from the constitution.
    Ever notice how most politicians are members of The B.A.R.?

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