Police Recruiting Ad Lists "Qualified Immunity" as "Unique [Job] Benefit"

https://twitter.com/isaacscher/status/1422677149371092993?s=20

You can see their retraction and apology here, together with public comments:

Qualified immunity is of course the (controversial) legal rule that government officials, such as police officers, generally aren't liable even for unconstitutional conduct unless "existing precedent" had made clear "beyond debate" that the conduct was unconstitutional.

Comments

[Krychek_2]

The problem here is that the Department accidentally said in public what they've been thinking for years.

The second problem here is that a lot of the stuff police get qualified immunity for is stuff anyone who has had a high school civics class would know is illegal, whether or not there's a Supreme Court case directly on point.

[LawTalkingGuy]

The police apologized for mentioning something that is best left obscured in lengthy judicial decisions.

[DaivdBehar]

The police are agents of the prosecutor. That bitch needs all its immunities revoked. That should include immunity of discretion. Fail to prosecute and imprison, future victims should be able to sue for the lazy carelessness of these worthless government, slow shuffling workers.

They prosecute 10% of common felonies, and no internet crime, now at 100 million a year. They stink and all need to be fired.

[DaivdBehar]

Here is a useful immunity, but it does not exist, thanks to the lawyer scumbag profession.

The modern view of mishaps is that factors cluster in space and time. There may be 12. The prevention of one can prevent the entire mishap. After a mishap, conduct an investigation to avoid these factors in the future. Using this method, the airline industry has become safe.

The investigation and analysis of these factors should all be permanently immune from discovery in tort litigation. Tort is hurting safety by inducing a cover up, today.

[DaivdBehar]

KryKry. Everything the criminal law does is a crime that has been authorized by the voter. They grab people. They restrain them with cuffs. They put them in cages. They do not let them out when they refuse consent and start screaming to be let out. You are pro-criminal, leftist rent seeker. The alternative to police is either a hellish, Darwinian city, with self help as the only remedy. Your preference is massive funding for social workers to beg the criminals to not hurt us. You are a deplorable scam artist and rent seeking leftist traitor to this country. You want to destroy us on behalf of your Chinese Commie employers.

[Dr. Ed 2]

NH is sometimes an exceptionally honest state.

I've seen statutory citations routinely posted on regulatory signs. I've always thought it was out of fear that someone would call them on it.

[Henry]

My money is on a subversive mole in the IT staff. Watch for an IT posting in the next few days.

[M L]

Quite humorous.

But the point Justice Thomas made referenced in a recent post here makes sense. "why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?"

Let's make sure that university officials and every other government bureaucrat loses qualified immunity first, then the police.

[LawTalkingGuy]

That seems backwards because the police (and corrections officers) are making decisions regarding who gets to live or die, be beaten/maimed/tortured or free from physical harm or be free or at liberty. The people using the maximum amount of force should be subject to the maximum amount of scrutiny.

[Snorkle]

Yes, of course. It is important that we always demonstrate that some cultural resentments have priority over others.

[Rev. Arthur L. Kirkland]

When Democrats eliminate qualified immunity, over the objections of Republicans, I hope police officers are part of the first wave of accountability.

[Henry]

Yeah, Democrats are going to eliminate qualified immunity. Any day now.

Meanwhile, the libertarian law firm Institute for Justice is actively working to hamstring it permanently. And with not one dime of tax money.

[SKofNJ]

I would say to Justice Thomas that the fault lies with you and your colleagues. With many scenarios a well-informed and bright attorney can only make a guess at to how a court will rule if that attorney instructs his client to take a certain action. It is also true that in many circumstances, such advice is necessary because either action or inaction will have consequences. There are many cases where the appellate courts say the answer must be found in weighing multiple factors, including the factor of any other relevant factor. Then, the appellate courts will say that they trust the trial courts to come up with the right answer based on that unquantifiable and unpredictable weighing process. The final blow is that such trial court decisions are almost always reviewable on an "abuse of discretion" standard. That effectively means that the trial court actually doesn't have to get it right. It just has to get it right enough so that its decision is not challengeable as one that is arbitrary or devoid of reason.
In short, in many instances, even the best attorney, working in perfect good faith, can only guess as to what course of action will ultimately be deemed legal by the courts. That's why there is a need for qualified immunity even when officials have time to deliberate.

[M L]

Fair point, the logic of which would suggest that QI is broadly necessary, perhaps even more so for police officers, who not only have to make split second decisions where they believe their life or others are in danger, but also can't even be instructed ahead of time as to what the right decision will be. I can see the arguments on both sides of this issue.

[Cataphract]

Surely the answer is that cops must err on the side of caution and not act in legally questionable ways.

In my country there is a constitutional right to violently resist to unlawful orders. There was a case when a policeman told some guys to turn off some music they were playing on the street and the police ended up being hit when they tried to arrest them after they didn't comply. Some judges on the constitutional court wanted to apply the right to resist to only clearly unlawful orders but thankfully they didn't have a majority.

[SKofNJ]

So when investigators are working on a murder case and they are reasonably concerned that if they delay, critical evidence will disappear or be destroyed, but do not know if later on a court will agree with their view, they should err on the side of caution? If they are at the threshold of someone's home and suspect that a victim is inside in need of help, but aren't sure what a court might say later on, they should err on the side of caution? If they encounter a suspect on the street and are fairly certain that if they give him Miranda warnings, he'll clam up, and are unsure if a court will later rule that the suspect was in custody, they should be cautious, give him the warnings, and take the very high risk that they will never learn where the gun or stolen property was secreted?

[JJJSSS]

"So when investigators are working on a murder case and they are reasonably concerned that if they delay, critical evidence will disappear or be destroyed, but do not know if later on a court will agree with their view, they should err on the side of caution?"

As opposed to having the evidence surpressed and tanking the case? Or were you suggesting beating the suspect or something?

"If they are at the threshold of someone’s home and suspect that a victim is inside in need of help, but aren’t sure what a court might say later on, they should err on the side of caution?"

I certainly hope that they'll be careful, given the cases we've seen where someone inside started shooting because they didn't realize the home invaders were cops, and the cases where cops came in and attacked innocent people, and the cases where false reports are filed precisely to encourage a violent police response (SWATing).

"If they encounter a suspect on the street and are fairly certain that if they give him Miranda warnings, he’ll clam up, and are unsure if a court will later rule that the suspect was in custody, they should be cautious, give him the warnings, and take the very high risk that they will never learn where the gun or stolen property was secreted?"

Then it's their job to, you know, make sure they don't take the individual into custody, making it quite clear that the suspect is welcome to walk away, and not issue a Miranda warning, or to take the suspect into custody and issue the Miranda warning.

Yes, cops should not be committing both constitutional and common sense violations of laws with the hopes that "hey, maybe the court will let me get away with it."

[Henry]

But anyone contemplating a court response has exactly the same issue. Why should some people get immunity, while others don't?

[Rossami]

I would be more willing to credit that line of reasoning if the government extended the same discretion in ambiguous laws to the rest of us peons. Instead, we are held strictly and sometimes criminally accountable to even highly novel interpretations of laws and regulations.

End the double-standards.

[Dr. Ed 2]

As much as I fear letting the Voodoo Scientists get their tentacles into something else, I'd like to make a distinction on the basis of (a) cognitive functioning time and (b) neurological/psychological load.

In other words, I make a big distinction between an officer who stupidly discharges his weapon in the utter chaos of a riot and an officer in a safe location who calmly sights in his rifle and calmly squeezes off a round -- the person is dead either way, but it's not the same situation.

Likewise when a department deliberately avoids teaching officers things, which many departments do.

[Bob from Ohio]

Nobody in their right mind would become a cop these days without qualified immunity.

[DaivdBehar]

Police are worthless money makers for big government. A NJ state trooper had a talent for stopping drug dealers on I-95. What happens when you stop a drug currier? You generate costs. He was shunned and harassed out of his job by the NJ State Police. They want the police to ticket people and to bring in $millions in return for their low salaries. They do not want to spend money on criminal prosecutions.

[DaivdBehar]

NJ, enjoy your fentanyl overdose deaths if you are going to drive out talented, productive officers.

[M L]

Maybe that's the idea. Only have people who are not in their right mind, or won't do anything remotely risky or heroic, responsible for maintaining law and order in local communities.

[Ed Grinberg]

Pretty much. Which means law & order will be replaced by law of the jungle. How "progressive"!

[Krychek_2]

I doubt this. Any actual judgment is likely to be paid by the taxpayers or their insurance company, rather than the officer. Also, given how pro-police juries tend to be, I'm not sure that abolishing qualified immunity would change all that many outcomes; I think you'd find a lot of nullifying juries determined to side with the police no matter what. So this discussion may actually be academic. But I doubt that anyone who wants to be a police officer is going to be deterred from joining because of QI.

[LawTalkingGuy]

Totally. If I can’t be immune for getting warrant to force a boy to masturbate in front of me while I take pictures, or keep someone in a feces filled cell for a week, or shoot a child on the ground while I was aiming for a docile dog, or allowing a dog to tear the flesh out of a surrendering homeless man, or destroying someone’s house with tear gas, or throwing a flashbang into a crib and burning a baby, or shooting someone when I enter the wrong house, or just straight up stealing money, what’s the point of being a cop at all.

[DaivdBehar]

Again, fractions are covered in the 5th grade, you misleading lawyer. Lawyer math stops at the 4th grade, that needed to count money. You forgot to mention the 21 million 911 calls the police took from black people, resulting in good service to them.

[LawTalkingGuy]

And the vast majority of contracts are never breached, yet you can still recover damages for breach of contract.

[DaivdBehar]

I support torts as a replacement for endless cycles of revenge violence. I advocate ending all immunities to improve failed government practice, including those of legislatures, and especially of the sucky courts. I have said, immunity justifies violence in formal logic.

I care about your credibilty. When you do not include the denominator you commit the Exception Fallacy and come across as a misleading propagandist.

[Rossami]

So how, precisely, did police recruit in the days before qualified immunity? You do remember that it is a historically-recent invention, right?

[OtisAH]

Believe it or not, Bob, but most police finish their careers without ever having to rely on qualified immunity to keep them from being sued and/or out of prison.

[Bob from Ohio]

"qualified immunity to keep them . . . out of prison"

qualified immunity keeps no one out of prison, its a civil tort concept

[OtisAH]

Then end my comment before that.

[Bob from Ohio]

Most cops never fire their weapons yet they have them.

[Sarcastr0]

And that's a problem too!

Plenty of law to be enforced without lethal force having to be on the menu.

[tkamenick]

"but most police finish their careers without ever having to rely on qualified immunity to keep them from being sued" How do you know that? Sure, you can count the lawsuits that were filed and dismissed because of QI. But how many potential lawsuits were never filed because of QI?

[Rev. Arthur L. Kirkland]

Another rousing meeting of Libertarians Against Police Accountability, convened at the Faux Libertarian Cafe.

[Ed Grinberg]

Law & order is not inimical to liberty; it is essential to it.

[LawTalkingGuy]

Qualified Immunity is an exercise in ignoring the law to protect disorderliness among the police. It actually doesn't do anything to further the goals of either law or order.

[Ed Grinberg]

I live in the Minneapolis / St. Paul metropolitan area. Over the past year, we've have plenty of "disorderliness" around here. And no, the police weren't the culprits.

[LawTalkingGuy]

Couple things:

1) What set off that disorderliness in the first place? Was it possibly a police officer committing a crime?

2) Look at this thread, I'm sure you will see some examples of Minnesota police engaging in lawless disorderliness:

https://twitter.com/greg_doucette/status/1266751520055459847?lang=en

And at any rate, again, qualified immunity does not further either the goals of law or order. It 1) lets police ignore the law 2) doesn't create a more orderly policing system because it lets police ignore the law!

I mean seriously: what is orderly about granting QI to police who let a dog maul a homeless man who wasn't even the suspect they were looking for? Is an orderly society one where an officer can suffer no legal consequences for shooting a motionless child instead of the docile dog he was aiming for?

[Bob from Ohio]

"Was it possibly a police officer committing a crime?"

Yes, but of course QI does not apply to crimes, just torts, so your comment is a non sequitur.

[LawTalkingGuy]

No, it was a direct response to what was a blanket claim that police weren't the culprits for disorder. Not a non sequitur.

[LawTalkingGuy]

Oh and not for nothing but torts and crimes are not mutually exclusive. Indeed, Chauvin was definitely committing several torts at the same time he was committing a crime. Had it not been for the City's settlement, it could still be an open question if a federal appeals court would agree as to whether he violated Floyd's clearly established rights that day.

[Bob from Ohio]

"could still be an open question if a federal appeals court would agree as to whether he violated Floyd’s clearly established rights that day"

What were his damges? He was a society negative, violent career criminal and addict.

The City made a political settlement.

[LawTalkingGuy]

Is this a serious question coming from someone who purports to be an actual attorney? Or are you just trolling? You know as well as I do that the damages in a suit where there is a wrongful death does not depend on some subjective notion as to whether someone was a "society negative." His existence wasn't a negative to his family for instance.

And holy fucking crap. How would you like it if your doctor killed you during surgery and a jury decided to award your family no damages because it decided you were a "society negative."

[Bob from Ohio]

You think a jury would have awarded $27 million? Or any court uphold it if they did?

Naive to think juries don't value the"worth" of a person either.

[LawTalkingGuy]

Not necessarily, but I don't know what all the testimony would be.
Regardless there are in fact real damages in this case and a jury that awarded zero would have clearly erred in this case (funeral and burial expenses are a thing and would probably be around five figures). Plus since this is an intentional tort, there would be punitive damages.

So your assertion that there would be no damages is just flat out incorrect. And despite your opinion on what a jury might value, as a matter of law they would not be asked to consider whether the decedent was a "society negative."

You're simply wrong on the law.

[Krychek_2]

Even socially negative, violent career criminals and addicts have the right to not be killed with a knee on their windpipe.

[Henry]

Even people monstrously damaged at birth, such that they have windpipes that run through their shoulders. Geez, read the testimony, not the NY Slimes.

[Krychek_2]

Just out of curiosity, Bob, how much would you have awarded?

[Bob from Ohio]

Reasonable and custmary funeral expenses, not that gold carriage of course. Lost future earnings based on his salary history and projected life expectancy taking into account his drug addiction. If he was paying child support, that expected sum until her 18th birthday.

No punitive damages.

[LawTalkingGuy]

Why no punitives? It was an intentional tort and there is a need to punish the tortfeasor and deter similar conduct in the future.

[Bob from Ohio]

"punish the tortfeasor "

He is in prison for 25+ years.

No further need to deter him either.

[Rev. Arthur L. Kirkland]

No pain and suffering for the Black man, you bigoted, inconsequential backwater rube?

No punitive damages?

Was the law school you attended accredited? Did Ohio still allow that 'read the law/preceptor' dodge when you were admitted?

[Rossami]

Torts are only authorized because even Congress recognized the prosecutors are in a conflict of interest and were often failing to prosecute police for their crimes. The non-sequitur is yours, Bob.

[M L]

"Qualified Immunity is an exercise in ignoring the law to protect disorderliness among the police."

Opinion. One could also say that ending Qualified Immunity is an exercise in adding rocket fuel to a massive scam industry of shaking down taxpayers. But hey, that's pretty much fundamental to our government and economy now, so nothing new. The truth is probably somewhere in between.

[LawTalkingGuy]

It’s an opinion backed by a whole bunch of written judicial decisions. There is nothing orderly or lawful about sending in a SWAT team to arrest the wrong person after destroying his house. And yet:

https://reason.com/2021/06/09/qualified-immunity-police-onree-norris-raid-wrong-address-11th-circuit/?amp&__twitter_impression=true

[M L]

Question for you. Do you think that any clearly established statutory or constitutional rights were violated in this story?

Because if they were, then your beef is not with the basic doctrine of QI, but with how a judge applied it wrongly in this case.

[LawTalkingGuy]

Um, no it's still a beef with QI. The judicially created concept of the exceedingly narrow "clearly established right" is one of the main problems with QI. Having a court decide whether you had a specifically clearly established right to not have your house destroyed with flashbangs because the cops didn't do a proper investigation is not a question the court should be answering, but is the one the Supreme Court demands they answer.

The actual question should be: did the plaintiffs state a claim (or create a genuine issue of material fact) as to whether the officers violated the Fourth Amendment's prohibition on unreasonable searches and seizures (yes and yes).

[Kenneth Almquist]

I think that most police officers would say that the conduct of the police in this case violated the Fourth Amendment rights of the individual whose house was raided, and that they would be able to say that without searching a bunch of case law first. Based on that, it seems reasonable to assume that this case is the first time something like this happened, because most police officers know better. Which would mean the right is not “clearly established” simply because the right is so obvious that the courts would never have had occasion to address the issue before.

[Ed Grinberg]

[Man] seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates. (John Locke)

Q: Those seeking to subvert law & order -- what do they really want?
A: They want to encroach upon our "lives, liberties and estates."

[apedad]

Hmmmm, I don't really see the ???????????????????? ???????????? ???????????????????????????? crowd being big fans of liberty.

[apedad]

Ugh....???????????????????? ???????????? ????????????????????????????

[apedad]

I'm stupid....

Recht und Ordnung crowd....

[Bob from Ohio]

There is no liberty without law and order.

[LawTalkingGuy]

So you agree we should abolish qualified immunity because it lets officers of the state get away with ignoring our most fundamental laws while engaging in disorderly acts.

[Bob from Ohio]

You are Exhibit A why cops need QI.

[LawTalkingGuy]

Because I think they should be subjected to a damages remedy if they force a teenager to masturbate in front of them while they take pictures?

[Krychek_2]

I have a former client who is doing an extended stay in a federal prison for taking pictures of boys masturbating. Too bad he didn't just become a cop.

[LawTalkingGuy]

Yes. He just needed to say he was investigating underaged sexting and obtain a warrant to get a picture of an erect penis for comparison purposes. Then when the teenager can’t get an erection while surrounded by armed police get a second warrant to subject him to a forced injection that will produce one and only back down when the public finds out. Two out of four federal judges says this doesn’t violate any clearly established rights.

Notably the detective in that case, Detective Abbot, committed suicide when he found out he was going to be charged in an unrelated child pornography case.

The prosecutor who helped secure both warrants, Claiborne Richardson II, received absolute immunity (an incredibly under discussed problem) and is apparently still a prosecutor and suffered no professional consequences for facilitating the forced production of child pornography.

The magistrate who signed both warrants is apparently unknown but would have been covered by absolute judicial immunity. He too likely suffered no consequences for signing two judicial orders compelling the production of child pornography.

[LawTalkingGuy]

Sure they are. They are big fans of their liberty.

[tkamenick]

Except QI literally and expressly permits a lack of law & order among government officials including police officers.

[Aunt Teefah]

Hey, they say "Don't Tread on ME." Police officers mostly tread on *other people*, so they're fine.

[Aladdin's Carpet]

Question: I dont support qualified immunity, but isn't it the natural extension of Ex Parte Young and the problems with that decision? Soverign Immunity (state and federal) should apply to officers, as they are deputies of the state, but Young says actually no you can strip them of their state authority when they act unconstitutionally, but you still can only get injunctive relief, which sort of works, but if the officer has no way of knowing if what he is doing is constitutional or not its difficult to make him liable, hence injunctive relief ...

And none of this actually makes a whole lot of sense its more the court saying this is the best we can do.

But congress decided no there actually needs to be monetary penalties, which fair enough, but its unclear whether they have that authority for state police officers and you have the same problem as before, which is why the court limited it to injunctive relief in the first place. So they do the same thing here ... which is atextual, but its a similar attempt to create a solution to this underlying problem.

This of course is much more problematic because it directly goes against the text of the statue, when Young is more a legitimate attempt at reconciling two conflicting constitutional amendments.

So the court creates qualified immunity for special cases where it is unclear what is constitutional or isnt (for example, before Obergefell are all marriage employees liable for not reading the courts mind and recognizing the preexisting right to marriage that suddenly sprung into being? Of course not. Once established, they should follow it, but before?) This exception has grown and grown and grown until it reaches absurd levels today.

That's my understanding anyway. I think a baseline good faith exception is fine for legitimate cases where the courts did create new law. But I would wager that if someone can come up with a better solution to the problem posed in Young that exact solution can be applied here.

[Aunt Teefah]

"Soverign Immunity (state and federal) should apply to officers, as they are deputies of the state"

This is true only when they are sued in their official capacity, as a representative of the agency for which they work, and any judgment would come from the state treasury. But sovereign immunity (and Ex Parte Young) is not implicated when an officer is sued in his personal capacity, where the plaintiff is seeking to recover his personal assets. Of course, as a practical matter, basically every government agency indemnifies its officers in personal capacity suits, so there is not much practical difference. But it is still an important distinction for the purpose of immunity.

[mse326]

Congress can waive a State's sovereign immunity for violations of the 14th A per section 5. The reason for "injunction only" in Young is the 11th A (or the atextual reading thereof). But the 14th amendment gave Congress that ability to abrogate it. Since qualified immunity stems from sovereign immunity it is clear Congress can waive it and allow suits for monetary damages. There was no such statute in Young.

The reason qualified immunity is contentious as a statutory reading of 1983, for example, is because it doesn't explicity say whehter it is retained or not. The Court said it is a common law background rule so needs to be explicit to waive it, many others disagree. But there isn't disagreement that Congress could constitutionally say so explicitly.

[Dr. Ed 2]

I compare this to the UMass Psychology Department which advertises the number of times that student interns will be able to essentially rape the civil rights of someone during the internship.

Advertising the likelyhood of being able to do involuntary psych commitments (with *total* immunity) is not something that I saw in any of the other site advertisements -- and I consider a bit more egregious than a police department advertising qualified immunity.

[great Unknown]

As a resident of Manchester, NH, I hold the local police in the highest regard [the local prison system, not so much]. But,"...as Chief of Police I take full responsibility for this post and the inappropriate mention of qualified immunity”. -Chief Allen Aldenberg"???
Precisely what does taking full responsibility entail?
Or is that covered by qualified immunity?

[Roman Moroni]

I don’t see why the police department had to apologize for truth in advertising. If anything they didn’t sell it hard enough. Maybe something like: “Hey kids! Do you love violating civil rights but can’t figure out a way to protect your assets from those pesky lawsuits that seem to follow? Have we got the job for you!”

It kind of reminds me of that old army recruiting parody: “Join the Army; travel to exotic, distant lands; meet exciting, unusual people and kill them.”

[MollyGodiva]

They are sorry for writing it, not sorry that you consider it a perk of the job. Their entire priories are backwards and you are unfit to be in law enforcement.

[F.D. Wolf]

If courts or lawmakers get rid of qualified immunity, it will be replaced by general indemnification agreements between government employers and law enforcement officers. LEOs will insist upon them. According to one study, government employers end up paying 99.98% of the money awarded to plaintiffs anyway. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014).

[Gasman]

Sure, the costs will be passed on.
But in a better world, those injured would have a path toward recovery.
Those who generate higher costs for their employer would be seen as a drag on productivity, and would have their contract not renewed at subsequent performance review.
And some day police would be treated as the professionals they pretend to demand, that they would be judged on their character and performance, and all personnel decisions based upon that. But then what am I smoking....

[F.D. Wolf]

If you are injured by the malfeasance of Officer Jones, you will sue Officer Jones AND his employer (be it State X, County Y, or City Z). Let's say you win a million dollar judgment. From whom will you realistically be able to collect? The man who makes $40,000/yr or his multi-billion-dollar-budget government employer? Is there any practical (as opposed to merely symbolic) effect if the court says you can only collect from the government employer, but not from Jones?

Lawsuits in civil courts are (or at least should be) only about collecting money. They are not for exacting a pound of flesh.