Qualified Immunity

Virginia Democrats Declined To End Qualified Immunity. Police Unions Are Alive and Well.

Another example of how powerful the law enforcement lobby is

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The Virginia Senate last week passed a comprehensive police reform package that would prohibit the use of no-knock warrants and chokeholds in the majority of cases and make it easier for departments to decertify rogue cops. One thing was noticeably absent, though: a ban on qualified immunity.

Qualified immunity makes it exceedingly difficult to sue public officials when they violate your rights, as it requires that any alleged misconduct be outlined almost identically in a previous court precedent. The doctrine has come under fire from all sides of the political spectrum. In June, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.) and several other Democratic members of Congress, introduced a bill in the U.S. House that would have abolished qualified immunity (though it has not received a vote and will likely die without one).

Virginia's House passed a separate bill to end qualified immunity earlier this month, but the legislation met its demise in the state Senate last Thursday. Interestingly, Virginia's governing bodies are both controlled by Democrats, which in theory should make it easy to abolish qualified immunity when considering that many high-profile Democrats and a hefty majority of the American public support ending the doctrine.

But Virginia Democrats' decision to punt on the issue puts them more in line with moderates in the Republican Party—a testament to the power of the law enforcement lobby.

"It's a big problem," said Sen. Scott Surovell (D–Fairfax). "I want to do something about it." But Surovell opposed the recent measure to end qualified immunity, and one need not look far to figure out why. Virginia lawmakers crafting the reform legislation met with police unions "probably six or eight times" and implemented amendments accordingly, said Wayne Huggins, executive director of the Virginia State Police Association, a union representing people in law enforcement, at a press conference last Thursday. "The greatest threat to our profession is the proposed elimination of qualified immunity," added Maggie DeBoard, the first vice president chief of the Virginia Association of Chiefs of Police, another police union. "There is a myth being perpetuated that qualified immunity protects bad cops. It does not, and it has not protected any of the bad cops that I have been a part of firing or separating in my 34 years in the job."

DeBoard might gain new perspective on that if she were to talk to the mother of the 10-year-old boy who was shot in Georgia by sheriff's deputy Matthew Vickers, who received qualified immunity. Or the parents of the 15-year-old boy on his way to school who was shot in Los Angeles by Officer Michael Gutierrez, who received qualified immunity. Or the man who had a police canine sicced on him—after he had surrendered—by two cops who both received qualified immunity. Or the men who allegedly had $225,000 stolen from them by two officers, executing a search warrant, who both received qualified immunity.

The latter case epitomizes the mental contortions required by the legal doctrine. A unanimous panel for the U.S. Court of Appeals for the Ninth Circuit wrote that "although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment." In other words, officers need case law text to tell them stealing is bad.

Advocates like DeBoard present an apocalyptic vision of a world without qualified immunity, one in which officers go bankrupt from frivolous civil suits and leave the force in droves. That's not a vision based in reality. For one, losing qualified immunity is not equivalent to losing a lawsuit. It simply provides someone with the right to bring such a suit in front of a jury—a right the American public is technically still guaranteed under federal law. And in the case that a public servant does lose a suit, the municipality nearly always foots the bill

Police unions are obligated to repeat such talking points since their job is to stick up for all cops, even when it comes at the expense of the citizens they're supposed to serve. Consider the case of Sgt. Brian Miller, the sheriff's deputy in Broward County, Florida, who hid behind his vehicle for 10 minutes while a gunman ravaged Marjory Stoneman Douglas High School. He was fired in 2017 but by 2020 had regained that position thanks, in part, to his union.

Surovell, who did not respond to Reason's request for comment, tells The Washington Post that although the Senate rejected the qualified immunity bill, the overall police reform bill will make it clear that officers cannot violate certain standards and expect to be protected by qualified immunity. "By making these changes to the Code of Virginia, by clarifying what is legal and what is not legal, we are taking qualified immunity out of the mix," he said. The new legislation does codify limits on force, including prohibiting chokeholds and banning shooting at moving vehicles unless officers believe their lives are at risk.

Still, Surovell will likely be disappointed. Qualified immunity requires that a constitutional right be "clearly established" in order to hold a public official accountable for violating it, which by today's standard means a near-identical scenario needs to have been previously litigated and condemned by the courts.

Judges have applied that standard to the letter of the law, awarding the legal protection even in cases where they admit that a right was indeed violated. A panel for the U.S. Court of Appeals for the Fifth Circuit, for instance, acknowledged last year that prison guards in Lubbock, Texas, violated Trent Taylor's Eighth Amendment rights when they forced him naked into a cell covered with "massive amounts" of human feces and then transferred him to another cell with raw sewage overflowing on the floor. But not all of the smaller details lined up adequately. "Taylor stayed in his extremely dirty cells for only six days," Circuit Judge Jerry E. Smith wrote. "Though the law was clear that prisoners couldn't be housed in cells teeming with human waste for months on end, we hadn't previously held that a time period so short violated the Constitution. That dooms Taylor's claim."

Apply that to the Virginia Democrats' new rules: Chokehold bans are notoriously ineffective and difficult to enforce. Who's to say that any officer couldn't claim he was afraid for his life based on the unique circumstances of the confrontation?

Surovell and his fellow Democrats have a chance to revisit qualified immunity in early 2021. The legislature's solution should center around protecting Virginia's public, not its police unions.

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59 responses to “Virginia Democrats Declined To End Qualified Immunity. Police Unions Are Alive and Well.

  1. Not surprised. VA dems are pussies who only really care about the soccer mom vote, so if it doesn’t involve grabbing guns, allowing partial birth abortions, or taking down those icky confederate statues, they’re not interested.

    1. I mean, you could easily make the same argument against the VA republicans then no?

      1. Yes, the VaGOP sucks almost as much as the donkey party here and are the reason we are quickly becoming a one party state.

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      2. At least the Republicans support the 2nd Amendment.

    2. Homie please. If the Rs were in control of Virginia this article would be less about the power of unions and more about the ruling Party’s craven devotion to special interests.

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  2. Anyone who expects Democrats to challenge a public employees’ union is bound to be disappointed.

    1. All political parties are inevitably beholden to special interests to one degree or another.

      But in this case, it’s not the Democrats’ fault. It’s that gosh darn union. Which is just so powerful. And beyond the reach of the voters…

      Wouldn’t want to place the blame on anyone we could hold accountable. At least not when it has a (D) after it’s name.

  3. Interestingly, Virginia’s governing bodies are both controlled by Democrats, which should in theory make it easy to abolish qualified immunity when considering that many high-profile Democrats and a hefty majority of the American public support ending the doctrine.

    lol

    1. Billy is starting to realize that the Democrats are as full of shit as the Republicans on QI and that they are just using this as a campaign issue, to be memory holed if Biden wins.

  4. BTW, while I’m sure the police union lobbied hard to scrap the legislation, you can goddamned well bet all the other ‘good’ unions were whispering in their ears as well… teacher’s unions etc.

  5. High profile Democrats don’t like QI? Well then, QI must be protected as a matter of principle, right? And Reason must be wrong on the issue as well, because Democrats. In fact, Reason’s criticism of QI means they’re all Democrats! Fuck Reason! Trump 2020! Aaaaauuugghh! Must! Hate! Reason! Aaaaauugghh!

    1. No, but Reason sometimes goes a tad off the rails.

      1. Reason often get unreasonable….

  6. Glad to see they consulted the wolves before making legislation regarding the henhouse. Pretty sad.

    1. It’s all about politics, they’re afraid they’ll scare off the soccer mommies if they are seen as anti police.

      1. Maybe they actually want to have police – to enforce the right (i. e. wrong) kinds of laws, of course.

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  8. zero people surprised

  9. “Another example of how powerful the law enforcement lobby is”

    Or is it an example of how little the Dems/Reps care about actual people and want to control them? Seems to me that ending QI isn’t in the politicians best interests. Can’t let the proles get some power.

  10. “Qualified immunity” is not being added because the Democrats don’t want to give the Republicans anything [more] to beat them over the head with; they’re already facing a firing next election.

    The gun control measures the Northram proposed, died when the opposition of 10 million gun owners became apparent.

    1. Not just owners. I don’t think he expected 91 of 95 counties to pass resolutions declaring support or sanctuary status for the 2A.

  11. Executive Summary: Democrats don’t want cops accountable for killing Blacks.

    1. Exactly. And yet black people will continue to vote D.

      1. Ever notice all the extra penalties civilians receive if a bureaucrat is injured by the civilian? We should really reword all these laws to show the true intent; Injury to a civilian shall be fined at half the penalty’s of a bureaucrat.
        We aren’t citizens, we aren’t even civilians, we are servants and slaves who like the peasants and slaves of old, don’t have the same value of those with titles. We are three fifths of a person and given the stranglehold of the republicrat political system, we can’t vote.

        1. I believe the term you are looking for is Serf.

  12. Yeah, unlike some of their base, I think Dem leaders realize how they need cops to enforce their idiot Dem laws. If the cops become too timid, who will enforce the cigarette tax? Who will grab the guns?

  13. This isn’t an example of the power of unions.

    This is an example of the failure of voters to hold their representatives accountable at the ballot box.

    1. >>Another example of how powerful the law enforcement lobby is

      read this and thought “Elite Class lobby” if there is such a thing.

  14. “The great masses of men, though theoretically free, are seen to submit supinely to oppression and exploitation of a hundred abhorrent sorts. Have they no means of resistance? Obviously they have. The worst tyrant, even under democratic plutocracy, has but one throat to slit. The moment the majority decided to overthrow him he would be overthrown. But the majority lacks the resolution; it cannot imagine taking the risks.” ~ H. L. Mencken (1926). “Notes on Democracy,” p. 50, Alfred A. Knopf

  15. “…officers go bankrupt from frivolous civil suits” Of course it’s still fine for civilians to be bankrupted by frivolous lawsuits. What’s the percentage of attorneys in congress?

    1. Way too many!

  16. I’m not sure the exact problems Dems had with eliminating qualified immunity for police officers, but one big problem might have been that police officers are not the only public officials who can assert qualified immunity. Being a county or city official of some note is almost a guarantee that you will be named as a defendant in a lawsuit claiming violation of any number of federal rights; indeed, even being the head of the parks department, for example, can get you sued. I suspect no small number of county and city officials in VA are Democrats. So, perhaps the Democrats felt odd eliminating qualified immunity for police officers but not other public officials with regard to whom the Democrats most definitely did not want to eliminate qualified immunity. Indeed, it would not surprise me that many of the State reps were at one time one of the local officials.

    1. My wife has been trying to collect unemployment since she was laid off at the end of June. She was originally approved, and then they requested more information from her, then denied her claim because they claimed she had turned down employment from her previous employer (she did turn down a contract that was over 300 miles away and would have cost us more than what she could have earned at it). She appealed it in mid August. They called her the last week of August to inform her that her appeal had a good chance and was going forward. That is the last we heard. She has emailed them and called every day since last Wednesday, no one returned her calls or emails. She finally got through today, after an hour on hold, and they told her they had not even started reviewing her case. Her friend voluntarily took unemployment in March (and made more than what she would have if she worked, gee thanks DC) and they didn’t bat an eye over that. My wife kept working on her contract but couldn’t find a new contract within reasonable driving distance as the nursing homes in the area are not accepting new residents because of COVID and natural attrition has driven done census so they don’t need staff. We have burned through our savings and are using our children’s savings and are flat broke less than a week after pay day. But we have very little legal recourse. And as for getting another job, since the oil fields have shut down or majorly curtailed jobs because of low oil prices, there is more applicants than jobs available. We also can’t really relocate. She is currently taking EMT classes to get on with the Tribal Ambulance (the head of their ambulance service personally recruited her) but she won’t be done until October. We were doing fine and had savings and a budget based upon two incomes. And I’ve been paying FICA since I was 14 but we can’t collect SNAP because they don’t adjust income for expenses (even though on their website they say they do) and so we are choosing between paying rent and water or eating. But yes, we can’t sue the state for incompetence.

      1. And before someone says it, why shouldn’t I be able to get back some of what I’ve been forced to pay for 29 years?

  17. Quelle surprise

  18. Did the Virginia Democrats rescind any of the victimless crime laws that are usually the root cause of these bad police interactions? Or did they pass more? Ending no knock raids and chokeholds in most cases is a good thing, but if they don’t decrease petty victimless crime laws, then these atrocities will keep happening. It will just be something else they’ll blame next time. Ending victimless crimes would greatly reduce police and public interactions while allowing the police to focus on crimes where there is an actual victim.

    1. Legalizing drugs would free the police to protect us from actual crimes.

  19. What can a state do about a qualified immunity? 42 USC 1983 is federal law that gives victims whose constitutional rights have been violated by a state or municipal government a *federal* cause of action, and qualified immunity is a SCOTUS-created doctrine the neuters 1983. There’s nothing any state can do about it (except create their own version of 42 USC 1983).

    1. That’s what I would think.

    2. You can create a state statute under which to sue. Most states also have a deprivation of rights law already.

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  21. No lover of cops I,their abuse I have suffered more than once. But if the cops are held personally responsible,they will do nothing but take care of each other. Their directors are the guilty ones,the Mayor and Chief set the tone for the police work done.

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  24. Maybe the Democrats do not want an end to Qualified immunity because it protects more executive officials than just the police and they hold the executive branch in Virginia?

  25. So no abolishing QI, no universal health care, just gun control.

    At least we know the true Dem priorities.

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  27. “There is a myth being perpetuated that qualified immunity protects bad cops. It does not, and it has not protected any of the bad cops that I have been a part of firing or separating in my 34 years in the job”

    Interesting slight of hand there. Of course QI hasn’t protected any bad cops from being fired, it protects them from being sued. Your union’s unconstitutional bargaining agreements and lawyers are what prevent bad cops from being fired.

  28. “……. controlled by Democrats, which in theory should make it easy to abolish qualified immunity …..”

    Why would anyone think that? Democrats and public unions are one in the same. Add in that democrats abandoned civil liberties (formerly a strong suit for them) as an issue they support at least 30 years ago. Now it is special rights if you are the chosen race, sex, etc.

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  31. “ The doctrine has come under fire from all sides of the political spectrum. In June, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.) and several other Democratic members of Congress…”

    “All sides” seems to suggest several Democrats and a Libertarian comprise All Sides? Hmmm…

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