Qualified Immunity

Democratic Party Platform Calls for 'Reining In' Qualified Immunity. Why Not Eliminate It?

Stop pandering to Joe Biden and listen to Americans who want to stop shielding abusive officers from liability.

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Despite all the summer protests calling for policing and criminal justice reforms, discussion of actual policy has been largely absent from the Democratic National Convention this week (misguided appearance by Houston Police Chief Art Acevedo notwithstanding).

The official 2020 Democratic Party platform spends several pages on criminal justice reform, and the discussion isn't bad. Among other things, it talks about holding police and reckless prosecutors responsible for misconduct:

We cannot create trust without holding those in power accountable for their actions. Democrats will reinvigorate pattern-or-practice investigations into police misconduct at the Department of Justice, and strengthen them through new subpoena powers and expanded oversight to address systemic misconduct by prosecutors. Far too often, the law has shielded police officers who stand accused of heinous violations of civil and human rights. Democrats support lowering the intent standard for federally prosecuting law enforcement officials for civil rights violations. 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.

The American people deserve access to timely and accurate data on activities supported by their tax dollars, including policing. We will collect and publish data on the use of force in police departments across the country to promote transparency and accountability. To increase transparency and improve federal, state, and local law enforcement hiring practices, Democrats will also establish a national registry of officers who have been found to have abused their power.

Only the promise to publish data on the use of force was in the party's 2016 platform. The rest of this is new.

Unfortunately, the reference to "reining in" qualified immunity is much too vague. Qualified immunity protects public officials from federal civil rights suits when they violate citizens' rights in their line of work, except when there are court precedents that show that the officials' violated "clearly established" law. Time and again, this has been used to shield abusive police officers, including a ruling this week that protected an officer who kneed a subdued suspect in the eye between 20 to 30 times.

Qualified immunity doesn't need to be "reined in." It needs to be eliminated. The weaker language appears to be something that presidential nominee Joe Biden insisted on over the objection of Bernie Sanders' crew, which sounds similar to the reason why full marijuana legalization is not part of the party platform.

Qualified immunity's defenders insist that it allows the police to do their jobs without having to worry that they'll be taken to court simply for having to use force against a suspect. But that just isn't what the doctrine does. It protects officers who have clearly acted illegally, giving an escape clause to people who can claim ignorance of the law. It's one set of rules for public officials and a different set of rules for the rest of us.

A majority of Americans oppose qualified immunity. And police unions are already starting to rally behind President Donald Trump and his support of unbridled police power (as long as it isn't directed toward him). There's no need to be deferential to Biden here. What would the Democrats actually lose by telling Americans they intend to hold police officers and other government officials to the same legal standards as the rest of us?

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  1. Eliminating QI in its entirety would be a boon to lawyers acting in even bad faith. A government actor behaving as trained and according to long held interpretations and procedures should not be held liable based on a new interpretation of a right, especially given the growth of believed rights being pushed.

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    2. Far better to just let them force people to sit in their own shit for days on end. Lawsuits are just such a hassle.

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      2. Hyperbole is your response. You’re a bleeping idiot.

        1. That isn’t hyperbole. It’s actually happened to several people.

    3. Exactly!

      “Reining in” is the correct nuance. Not liking the fact that the building inspector applies the building code as written shouldn’t be grounds for filing a suit against him. Much as it pains me to say, a peon operating within the scope of his commission should not have to take personal abuse, but that is what a total elimination of QI could engender.

      1. So upon people pointing out what QI is meant to do (uphold our basic sense of fairness that the little guy shouldn’t go to jail for something his boss tells him to do or get fired). It seems like the reform that would be the best way to fix the issue, is enshrining in law that QI only applies when you are following a established written procedure or a direct order, and that whoever gave the order or wrote the procedure is now liable for any actions taken under their command.

        That gets rid of the issue that no one told you not to beat the suspect with a baseball bat, because no one told you to do that either and if someone did then that person is going to jail for having done so. While still protecting someone from being put in a lose-lose position by the local politicians (lose your job for not doing what I told you to or go to jail for doing what I told you to).

        1. “That gets rid of the issue that no one told you not to beat the suspect with a baseball bat, because no one told you to do that either and if someone did then that person is going to jail for having done so.”

          No. This is wrong. QI protects the person from being sued for violating your rights. It does *not* have anything to do with going to jail.

          This is what annoys me the most about Reason’s coverage of Qualified Immunity. QI only protects cops (and other government folk) from lawsuits against them as persons. It does not protect those people from being prosecuted by a DA. And it does not protect the Government from being sued.

          Governments are sued all the time for their employee’s actions, and yet cops still stay on their payrolls killing dogs and choking out cigarette sellers. DAs have long had the ability to put cops in jail for such actions, but they don’t. And QI will change none of that.

          1. “QI protects the person from being sued for violating your rights. It does *not* have anything to do with going to jail.”

            No, prosecutorial discretion is what keeps the person from going to jail, leaving suing them the only open avenue.

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        2. It seems like the reform that would be the best way to fix the issue, is enshrining in law that QI only applies when you are following a established written procedure or a direct order, and that whoever gave the order or wrote the procedure is now liable for any actions taken under their command.

          I think you’re sorely missing the point, but sure, I’m up for making shit roll uphill for once.

        3. Nonsense and hyperbole are not examples of why QI should be totally eliminated.

      2. Exactly not.

        However did we survive before QI was invented by the Supreme Court out of whole cloth in the 1980s? No statute. No Constitutional amendment. Just made up.

        Dump it entirely. It is as bogus as anything less than strict scrutiny, another Supreme Court thin air invention.

        1. What about when a police officer is ordered to do something that might or might not be legal? How about when a court has ruled that a particular police action was legal and after an officer commits that act another court rules it to be illegal?

          As Illocust says, the police officers are in a lose-lose situation without QI in such cases. They will risk being victims of a bait-and-switch. QI should be greatly reduced, but to never have it would be fundamentally unfair.

          1. However did we survive before the Supreme Court invented QI out of whole cloth? Can you answer that? No, or you would have.

            1. Shit tier logic. Rules are created out of necessity. The fact that such a need did not exist previously is not an argument against a need that clearly exists today.

              1. All you’re saying is that you’re against having a jury decide whether a police officer should pay for their “mistakes”. The necessity of which you speak is that of protecting the king’s men from the wrath of the serfs. That’s why QI was invented.

          2. What about when a police officer is ordered to do something that might or might not be legal?

            The police officer is obligated to refuse to obey an illegal order. Committing a crime you were ordered to commit does not relieve you of the consequences of committing the crime.

            1. If he commits a crime, he should be charged.
              QI won’t protect him from criminal charges.
              It’s not a magic wand

            2. Further, according to Jesse’s idea (and I like it), the official ordering the police officer to do something potentially illegal, becomes the one responsible for the police officer’s actions following those orders, as it should be.

              First of all, it usually the cops who get bent out of shape because some criminal isn’t cooperating or is being nasty, resulting in that cop responding poorly (I struggle to control myself dealing with people who are dishonest, rude and nasty) It’s seldom the police management. Second, put yourself in the position of police management: do you want to subject yourself to civil lawsuits? I think they’ll be happy to do it right and collect their salary.

          3. If they’re victims of “bait and switch”, it’s “bait and switch” by other police officers.

            And sorry, but given police hostility to internal affairs, that sounds like a self-inflicted problem.

            That said? In a quick search I couldn’t find any cases where police tried to deploy qualified immunity on the theory that they were just following orders. So I’m not sure your hypothetical is relevant anyway. You got any actual examples of it being used in this way?

          4. QI does not currently protect an officer following orders. If an officer is ordered to violate rights in exactly the same way the court has already ruled illegal, QI offers no protection.

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      3. Filing suit against that building inspector because you merely “didn’t like’ the way he discharges his “official commission” is different from filing suit against him for having used his official powers to harm you in unjustified ways. There’s a difference between “personal abuse” and justifiable complaints of official misconduct. Why would you want to protect that misconduct?

    4. Eliminating QI would hold cops (and other government bureaucrats) to exactly the same standards that they hold us to. Does it sometimes suck? Sure. Deal with it.

      Or change the rules that let cops, the IRS and other petty officials charge us with all those “new interpretations” of existing laws.

      And, oh by the way, these are not new “growths of believed rights”. Pretty much everyone has always agreed that you have a right to not have your stuff stolen by police, that you have a right not to be kneed in the eye 20-30 times after you’ve already submitted and been arrested, that you have a right to not have a flash-bang thrown in your baby’s crib because the cops couldn’t be bothered to double-check the number of the door they were knocking down. These are not close cases. QI abuse is egregious and uncontroversial.

      1. Seems like the examples you listed are cause for criminal action.

        But QI is so much easier to bitch about, so fuck it

        1. They hide behind QI. So yes, let’s bitch about QI.

        2. The problem, Nardz, is that criminal action can only be brought by the local prosecutor – the same person who is dependent on the police for his job success in other cases. Prosecutors have been notoriously lax in keeping the problem of bad cops under control. Congress tried to mitigate that problem by giving us citizens the right to privately sue for cops so bad that they violated the Constitution. QI is a court-invented mechanism to take almost all of even that limited redress away from us.

          I would cheerfully give up the right to sue if these corrupt cops ended up in jail on a reliable basis. I don’t see any practical way to make that happen, though. So ending QI is the next-best thing.

          1. Sure if you don’t want to hold prosecutors accountable and give them a pass to keep not charging cops

            1. If you have an effective way to hold prosecutors accountable, I’m listening.

              1. **Crickets** … and the sound of Nardz sucking the governments nards.

        3. You do know that civil lawsuits (which is what QI is relevant to) are the traditional response when prosecutors don’t pursue justice, yes?

    5. You guys are doing this to me on purpose right? Ya gotta be screwing with me on purpose here.

      *Qualified* Immunity protects government actors from their own fuckups and blatantly illegal actions.

      *Absolute* Immunity protects government actors when they are performing legitimate government functions.

      Absolute Immunity has existed . . . for centuries. Qualified Immunity was created in 1967. 50ish years ago.

      Did cops have to deal with life-destroying nuisance lawsuits over misconduct before 1967? No, no they did not.

      All QI does is protect bad actors in government. People who are doing their jobs – and doing their jobs legally – already have Absolute Immunity to protect them.

      Absolute Immunity protects the cop who arrests you. Qualified Immunity protects the cop who arrests you and in the process decides that, while you’re handcuffed, to knee you in the face 20 times.

      1. Ok, but compare the legal climate of today vs pre 1967.

        I’m ok with ditching QI, but it’s a red herring.
        Plus it would be wrong to just strip it from cops. So we taking it away from all public employees?
        Then we gonna strip silicon valley of their 230 shield?

        1. It would be wrong to strip it from cops but not others? Can you explain your thinking.

        2. Make police unions pay the costs, that would fix the problem. They would ditch bad cops so fast it would make your head spin.

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  2. I’m laughing that reason thinks they are going to move the ball when one party rule is established. It’s obvious that democrats have no intention of changing laws that benefit the powerful. All this blm street terror will end except that it will be sharpened and focused against political enemies. QI will remain as the one party uses the police and courts to prosecute republicans and libertarians.

    1. I agree. Dems want QI for the same reason they want the street violence. Their current policies and defunding of local police will clear out any smart cops, in the same way that Stalin purged the Red Army of anyone with intelligence or ambition. The thugs that remain will gladly roll over and sit up for the newly appointed federal police agency formed by executive order to get down to the serious business of stamping out the street violence. QI will enable the FPA to clean up all resistance to our new rulers without pesky interference from judges.

      Not that I have any faith in judges who claim gathering together to pray during a pandemic is a suicide pact while acknowledging liquor stores and pot dispensaries as essential business. I guess alcohol and pot are the new ‘opiate of the masses’. Along with opium.

  3. The American people deserve access to timely and accurate data on activities supported by their tax dollars, including policing.

    Scott Adams wants a camera in every classroom that parents could watch at any time. There are security concerns, but it’s an idea worth pursuing.

  4. Because Democrats don’t give any more fucks about it than anyone else in government, they just know that paying lip service to the concern of the moment plays well to retards that are honestly too stupid to know what it is they’re even asking for.

    With Harris as VP, does anyone believe a single word about their desire to do anything about QI? You’d have to have a lobotomy to think a prosecutor is going to do fuck all about it.

    At best, they’ll put forward some insane bullshit legislation no one in their own party will vote for and then blame the failure of the ‘movement’ on Republican intransigence.

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  6. “Qualified immunity doesn’t need to be “reined in.” It needs to be eliminated.”

    Yep.

    Will unethical lawyers have a “field day?” When, exactly, do they NOT have such a day.

    1. Between this and things like Section 230 it seems like there would/should be a better way of handling unethical lawyering/litigation.

      1. Loser-pays would help a lot. Make them put some skin in the game and I believe most unethical lawyers would find a safer line of business.

  7. Because “reining in” is open code for “looking all stern about it until the hubbub dies down”?

    Which is all they want to do?

  8. Qualified immunity doesn’t need to be “reined in.” It needs to be eliminated.

    They’re not serious about either so what’s the difference.

  9. Democratic Party Platform Calls for ‘Reining In’ Qualified Immunity. Why Not Eliminate It?

    Because, as I posted yesterday, they’ve got public sector unions whispering in their ears… public sector unions that don’t represent cops, but represent teachers, social workers and various other people who are in potentially sensitive jobs when dealing with the public, small children etc. When asked directly about qualified immunity, almost all of these organizations dither and repeat platitudes about racial equity.

    1. 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.

      Several education groups contacted by Education Week to discuss qualified immunity, including AASA, the School Superintendents Association, and the National School Boards Association, declined an interview request on the topic, and others did not respond.

      Re-linked from yesterday’s thread.

      1. So while this isn’t a smoking gun, it’s entirely telling. A media organization called Education Week which does dry stories on wonky education topics, suddenly gets the brush-off when they phone the nation’s top education associations to talk about qualified immunity, and the associations won’t even discuss it, or don’t return the call.

  10. We love our police and they do a great job. They deserve protection from frivolous lawsuits that QI prevents. (Suicide by cop is already epidemic. Now there will be a raft of new scams to instigate police.)

    This rebellion against authority is cute as a teenager but it’s unseemly for grown adults.

    Police are working for us. We want them to feel protected. The solution to abuses isn’t reform or defunding, but simply to decriminalize gradually (drugs, weapons, sex, etc) and gradually reduce funding. Then many of these incidents would never have happened.

    Remember, the goal of libertarianism (and America and the Judeo Christian tradition) is to be free of government and police. Ending QI will only foment chaos and anarchy.

  11. I would say that QI needs to be reined in more than eliminated – its original purpose was to shield public employees from being second-guessed on their discretionary decisions – but given that its always subject to abuse and the abuse only ever runs in one direction, I’m fine with eliminating it too. Let the humble public servants worry once that they’re going to be in big trouble if they fuck up, even if its an innocent mistake. Ask the guy who lost his house after accidentally underpaying his taxes by 8 bucks how he feels about innocent mistakes. Fuck the bastards.

  12. issue is the Supreme Court taking the question away from juries.

  13. Why not eliminate Absolute Immunity first? Then go after Qualified Immunity, which at least makes it possible for a lawsuit to proceed. Or do you have no problem with judges, legislators, and prosecutors who routinely violate people’s rights.

    1. This is how you can tell 99% of the people who bitch about Breonna Taylor are full of shit.

      The incident: cops serve no knock warrant on Taylor’s apartment and bust in at 3 am. Taylor’s boyfriend shoots at the people who just broke in, because that’s how any rational person in his position would respond. Cops shoot back at the person shooting at them, because that’s how any rational person in their position would respond. Taylor is hit and killed. No drugs are even found.
      Who as at fault above?

      “Arrest the cops for murder!”
      Ok – which cops? All of them? Just the shooter? What about the guy who got the warrant? The judge who signed the warrant? The police chief who ok’ed the raid? The person who instituted such tactics?
      If you can’t fault Taylor’s boyfriend for firing at the (unknown to him at the time) cops who just broke in, and I can’t, neither can you fault the cops for returning fire.
      The fault is with whoever put everyone in that position.
      But such a view takes nuance

      1. Ok – which cops? All of them? Just the shooter? What about the guy who got the warrant? The judge who signed the warrant? The police chief who ok’ed the raid? The person who instituted such tactics?

        Sounds good to me.

        Let crap roll uphill. Every one of those fuckers has merrily embraced a set of tactics and policies that they know routinely kill innocent people, and instead of doing a damn thing to improve their tactics and policies, they blame the victims for not laying down and dying faster.

      2. “The incident: cops serve no knock warrant on Taylor’s apartment and bust in at 3 am. Taylor’s boyfriend shoots at the people who just broke in, because that’s how any rational person in his position would respond.”
        NOPE!
        Under the law, a rational person doesn’t open fire on someone who breaks into their home. An effort must be made to identify the one, who broke in, and evaluate if they represented a deadly threat.
        Taylor’s boyfriend committed a felony when he opened fire. Under the felony murder rule, he is the one, who would face the murder charge.
        NOT THE POLICE.

        1. No, actually under the law, the fact that they broke down your door is sufficient cause to perceive a deadly threat.

          The real problem here is that yelling “Police!” supposedly refutes that logical conclusion, despite the clear fact that any idiot can yell “Police!”. But if the police don’t bother to yell it, yeah, you actually can get away with shooting them dead. If you survived the firefight, have irrefutable proof, and immediately evacuated to an unknown location so the police couldn’t murder you before you had your day in court…

          In a sane world, outside of a hostage situation, the police would show up at your door, calmly state that they were police, and politely wait while you called the station to confirm it.

        2. In the state of Florida, per the Castle Doctrine, I am allowed to use lethal force against anybody that enters my house without permission. IMHO, a no knock raid is not permission. There is no legal obligation for me to know why somebody broke into my house. I am allowed to use lethal force to defend it. IMHO, Taylor’s boyfriend was being rational. The cops in this case lied (mainly by omission) in their paperwork documenting the raid. That makes it criminal on their part.

      3. At fault are the cops who lied about their actions in the Breonna Taylor case. They committed an action that reasonably allowed the resident to defend themselves with lethal force. The problem there is more the existence of no knock warrants, and the incompetence of the police intelligence about Ms. Taylor.

  14. Not to going to go down this rabbit hole of qualified immunity except to say most people don’t understand what it is & is not, and that it is not “absolute” immunity.

    That said I’ll point out that in the George Floyd case the knee-to-the- back-of-the-neck restraint was actually an approved technique per the Minneapolis Police Use of Force Policy (since changed.) The even trained Officers in it.

    Technically the Officer was acting within the scope of his training & official guidance/policy in applying that technique & the only the Officers did wrong was to fail to render aid to a suspect in custody in a circumstance a reasonable Officer would have noticed the suspects medical distress & taken appropriate action …. so , that’s kind of a manslaughter thing really.

    But then …. juries.

    1. No, we understand that it’s not supposed to be absolute, but actually is in practice too often, due to hypertechnical parsing of what established law is. (Sure, there’s a court case establishing that beating somebody to death with an oak club is unconstitutional, but the officer used a hickory club, how was he to know?)

      The whole approach is absurdly unworkable, because it’s humanly impossible for the cop to be aware of all relevant legal precedents, just as citizens can’t be aware of all relevant law. A “reasonable man” standard is obviously in order.

  15. Liberals lose power if the police are reformed. Don’t expect them to dismantle what they erected to begin with.

    1. You can’t expect your jack booted thugs to step on a human face forever, if they’re subject to being sued for the resulting broken noses.

      1. “Step” sounds a little dainty. Orwell’s turn of phrase captured it much better: “…stomping on a human face forever.”

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  17. If you simply eliminate qualified immunity, no one will be police officers, and existing ones will simply ignore any situations that invite force. There won’t be private cops either, since no security companies will form any contracts with cities if they know they can get sued at every turn.

    Why does Reason not consider unintended consequences and root for one size fits all solutions when it comes to immigration and policing? Why do they ignore the unseen benefits or consequences? If black homicide increases by 30% in cities where cops hold back, he media won’t ever make huge deal of it. Just as they ignored Tony Timpa because he was white.

    The odds of you getting knelt onto death by cops is near zero. Mass shooters probably kill more unarmed civilians than cops. If we won’t get rid of the 2A or block immigration every time an illegal murders an American, why should we defund cops and remove all legal protection? Living in a totally perfect and safe world is a liberal dream, not ours.

    Society can exist without pot and immigration. It can’t exist without cops. Seriously, think about it. Get rid of unions and reform qualified immunity.

    1. I see this sort of thing all the time. A new law or legal doctrine comes along, is present for a decade or three, and then when somebody proposes abolishing it, you hear this parade of horribles which clearly weren’t happening before that law was created.

      “Qualified” immunity was invented by the Supreme court in 1982, for goodness’ sake! Did we have police forces prior to 1982? I seem to recall we did.

      1. Yeah, but XM may not have even been born by 1982 so, you can’t expect him to know what happened before then.

    2. Colorado recently eliminated qualified immunity for police. And instead, police departments are now required to carry liability insurance for such civil suits.

      This is a big improvement, because now police departments have to pay for liability premiums out of their budget, and hiring bad cops or keeping bad cops means their premiums will increase leaving less money for their budget. It also means insurance companies offering this, get to peek at the police records and recommend certain practices the police departments must follow to get that liability insurance.

      If you ask me, it’d be better if cops have to purchase individual civil liability insurance for being a cop, just like many professions have liability insurance to protect them from civil lawsuits. The high insurance premiums that result for people who don’t do their job right, soon puts them out of that job and looking for other work they can do right.

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  19. I don’t think this is a good decision

  20. One of the problems for Democrats with eliminating qualified immunity altogether is that qualified immunity doesn’t just apply to police. For example, qualified immunity is what protects the members of the Minneapolis City Council from lawsuits by shopkeepers whose establishments were burned down by mobs left free to rampage by the council’s order to the police to stop doing their jobs.

    1. Further, according to Jesse’s idea (and I like it), the official ordering the police officer to do something potentially illegal, becomes the one responsible for the police officer’s actions following those orders, as it should be.

      First of all, it usually the cops who get bent out of shape because some criminal isn’t cooperating or is being nasty, resulting in that cop responding poorly (I struggle to control myself dealing with people who are dishonest, rude and nasty) It’s seldom the police management. Second, put yourself in the position of police management: do you want to subject yourself to civil lawsuits? I think they’ll be happy to do it right and collect their salary.

      No one is above the law, except government employees who have qualified immunity and prosecutors, who also give professional courtesy to other government employees by not prosecuting them for their crimes. No crook in government wants to prosecute another crook in government. But they’ll be happy to prosecute crooks not in government, unless they donate a lot to their election campaign. Kind of like Kamala Harris and the protection she gave to the Catholic Diocese in San Francisco from sex abuse charges, after their lawyers donated heavily to her re-election as prosecutor.

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