Prosecutors and police should simply not have qualified immunity. ANY type of immunity is going to be expanded and abused over time. If more police and prosecutors faced real legal jeopardy for violating the rights of people the problem would solve itself. Until then there is really zero consequences for stealing from a person pulled over on the side of the road, withholding evidence, fabricating witnesses, overcharging, or just outright murdering people.
Qualified immunity got expanded from an immunity to lawsuits over doing your job appropriately to immunity from prosecution over anything you did while holding the job.
Why do we need QI for, e.g., city clerks? Because otherwise every permit issuing decision that they make as part of their job that pisses someone off would result in a lawsuit.
Why do we need QI for police committing murder? We don't.
> Qualified immunity got expanded from an immunity to lawsuits over doing your job appropriately to immunity from prosecution over anything you did while holding the job.
No, it didn't; QI was established in a case accusing Nixon White House officials of corruptly steering government contracts, which is not “doing your job appropriately”.
And QI doesn't apply to everything, but it is a giant catch-22:
It covers anything without clearly established law on the violation of rights (usually, court precedent with very similar circumstances) at the time of the act. But, simply by its own operation, it prevents cases in which it is applied from establishing such law, because it produces dismissals before the merits are reached. (In some cases, lawsuits against the government entity could establish the violation, but their are a different set of immunities there, plus a hugh propensity for cases with even a shadow of a chance to settle without establishing precedent.)
> Why do we need QI for police committing murder? We don't.
QI doesn’t apply to criminal charges (other cops covering for cops and prosecutors not wanting to hurt their relationships with cops are the only “immunity” cops have there, but that alone is a bigger problem than QI; it does compound the problem with QI, because criminal cases are another venue not subject to QI where the clear precedent on rights could be established, if prosecutions actually occurred, and also because the resort to civil lawsuits that QI blocks is, for cops more than any other class of public officers, a workaround for the criminal justice system being loathe to act against them.)
It is not catch-22. This case established that what the people did was wrong, so while they cannot punish them due to QI it establishes the precedent of declaring this is wrong. If anyone in the future will do the same act, there is this precedent saying it is wrong, so QI will not apply.
Note that this is (potentially, I haven't read the whole decision and there are ways in which the language reported could be accurate but it would not be precedential in context) exceptional case because the appellate court opined the merits of the underlying conduct despite QI being a threshold issue, which is not the normal case (and, indeed, QI will nor mally prevent the existence of a record on which an appellate court could address the merits of the underlying claim.)
Usually, QI leads to a dismissal before the merits are reached; the entire basis for QI is that it is not just a freedom from liability, but a freedom from the risk of having to endure trial. Even if the trial court decides QI doesn't apply and would be inclined to move forward to the merits, that decision on QI is subject to immediate appeal before the case moves forward, per the Supreme Court in Mitchell v Forsyth (1985).
So, even if this case is an exception, QI is very much a catch-22 that is a barrier to establishing the same clearly established law that it requires before officers can be held liable.
I don't know, but there are plenty of illegitimate lawsuits intended to harass or intimidate people all the time, directed at folks who aren't covered under qualified immunity. Why protect one class of people from nuisance lawsuits and not another?
Is it so bad to discourage legitimate lawsuits? I think there are plenty of legitimate things that we are ok with having some amount of difficulty in order to discourage abuse.
Yes, I think it it bad if you discourage people from claiming their rights. Should we really discourage say employees who have been defrauded of their salaries by their employeers from suing to get their salary?
Would you say this woman's lawsuit should have been discouraged? And if so, why? And if not, where is the line where you are "okay" with having difficulty?
Prosecutors actually get an even stronger version of immunity. Cops get qualified immunity (which is a stupendously easy bar to cross) but prosecutors get absolute immunity.
It's horrifying and clearly not the right way of handling the "well we don't want everybody suing the DA that prosecuted them" problem.
I think this could to some extent be resolved by explicitly not giving criminal immunity and dispensing with any immunity upon conviction (and the clock starts on conviction.) You don't get the officials buried in lawsuits and you establish a hard boundary as to when you're allowed to sue so you don't get problems with suits testing the edge.
I have no problem with some sort of good faith immunity where through some factors it was determined they were in the wrong but were operating in good faith / honest mistake. Yeah it will be vague, but I think it is required to be able to do things where ... you do get to infringe on people's rights (legally or not).
Having said that the example, there was no warrant and the sheriff had no reason to do what they did within the normal function of the job (sharing people's nudie pics...) ... that should be EASILY outside the bounds of QI
This case seems like the poster child where IQ enters he realm of of absurdity and degrades people's lack of trust in institutions. It also seems like an example where a more reasonable form of QI would thrive.
Reading the article it sounds like the problem is the previous supreme court rulings on QI.
It requires that a court had previously ruled that the specific action was a violation of constitutional rights. It had not done that on this specific action previously, but did in this case.
So they get QI here because of a lack of a previous ruling, but if the someone were to do the same thing in the future, they would not be given the benefit of the doubt.
I would personally never want any level of legal immunity. If the citizens know I can not be charged then their only recourse at best is vigilante justice or worse removing everything and everyone I love from my life.
That sounds reasonable on paper as a theory, but we do live in a universe where LEOs, prosecutors and judges have very broad legal immunities. And i can’t recall much vigilante justice hurting them. (Nor do i think it should, just stating for the record.) Definietly not happening as a kind of inevitable predicament as your description seems to imply.
How do you square your comment with that observed reality?
I am basing that theory on organized crime history and present in the USA. You don't hear about it much as the incidents are suppressed from most mainstream media to avoid copy-cats and that's not even getting into the excessive ways in which the cartels operate. It's one of the reasons judges usually have tunnels from the courthouses to a private secure parking area or why in rural areas the courthouse and sheriffs office is often in the same building.
If civil servants face the kind of adversarial pressure you're describing here why do sanitation workers have a higher per capita mortality rate? Are cartel hitmen really so bad at their job that they're less lethal than inanimate refuse?
I do not have an answer for your query. That said I would not want to be a sanitation worker either. The foods we eat are unhealthy even prior to reaching the other end and the rodentia that attracts carry a myriad of diseases.
This means that the person with immunity simply has to keep the level of their crimes low enough that sane and rational people would not jump to vigilante justice. A bad actor could do quite a lot within those boundaries.
I think this is a travesty of justice. But this case also reinforces some lessons I've internalized:
1. Never give a law enforcement officer verbal (or certainly written!) consent to search your person or your property. Make them get a warrant. If they threaten something like "We can take you to jail or we can clear this up right here if you give us consent to search" then let them take you to jail.
2. Never volunteer information to law enforcement or answer their questions (beyond what's required by law, e.g. identifying yourself in some jurisdictions) unless your lawyer is present.
3. Never have marijuana in your car if you're driving across a border from a state where it's legal to a state where it isn't. State troopers sit at those borders and look for any excuse to pull you over because it's an easy win for them.
4. Be careful in eastern Oregon because while it's not densely populated, it's still very Red. They have to follow state law w.r.t. marijuana but that doesn't mean they won't try to find creative ways to screw you over. The most surprising thing to me about this case is that most of the malfeasance was on the Oregon side rather than the Idaho side.
Might even have a driver have something fall out of their pocket. It's basically a certainty that our cars have been driven by complete strangers whose identities we generally never know: the vast majority of auto service you give them the keys and their employees will move your car around.
These used used to apply, but you don’t even have to do this anymore. No court is going to see this type of case unless you pleed guilty, lazy DAs are the vast majority they will not prosecute cases if they won’t help them personally so just promise to drag out the case is an auto win. I beat 3 drug charges link this, doesn’t matter exactly what you say as long as you cast doubt on exact words and facts. Stonewalling isn’t as effective as just pretending to be innocent, don’t want them to think you’re a threat.
doesn't look like that's working out in CO that well, aside from some officers resigning, which is a step. I'm curious how the federal court would view any of those colorado cases if it went up to them.
How is it not working out? Seems citizens are getting some monetary damages, even if they're limited to $25k.
I don't see resigning as a bad thing (not that you're representing it that way); if you want to resign because you feel like you need/want to violate someone's rights, you shouldn't have been there to begin with.
Is a full capacity police force with a significant number of 'bad apples' better or worse than one down by half, or more, with little to no 'bad apples'?
In my wishlist of accountability I want a tree of liability
For example, the partners are automatically accomplices and liable
Any discrepancy in police reports and footage/evidence triggers the same civil violation and criminal violation
this is useful because now we dont need all the fanfare of going to trial just to find out the actual aggression was called it ‘justified’ using an opaque standard
control behavior by regulating the intermediary. In this case I can think of many more intermediaries that civil and criminal liability can extend to for the actions of one bad apple
partner, department, union, pension, municipality
and an offenders list that follows the officer ideally to keep them off of the neighboring town’s force, and ostracized from most living arrangements
I think of nodes in a graph, the officer being one node, but now all the surrounding nodes at risk of being affected will keep the one officer in line, and demand reforms in the department for greater than citizens, judges or the legislature can do
I was also thinking to involve the federal government. Municipalities ability to raise capital becoming much more expensive based on how their officers act
in this case the fed would be the SEC, municipalities are exempt from reporting as is, LE incidents would remove that exemption and require some levels of transparency related to the municipalities LE incidents, to let people know what they are funding
There is a classic Dave Chapelle bit where his friend gets pulled over for driving recklessly. After being confronted he says to the cop, "I'm sorry officer, I didn't know I couldn't do that." The officer, to Dave's shock, replies, "Well now you know! Get outta here!". Then Dave's friend turns to him and says, "That was good, wasn't it? Because I did know I couldn't do that!"
To those wondering, the missing context is that Chapelle's friend is white. In the story, he's brazen in his interaction with a police officer because he doesn't get hassled by cops as a white man.
>A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-to-1 that Grant County District Attorney Jim Carpenter’s actions amounted to “a troubling example of the intrusion on Fourth Amendment rights” against illegal searches.
>But all three judges upheld a lower court’s decision to grant Carpenter qualified immunity and dismiss the woman’s lawsuit.
This is confusing, if there was no warrant, and they violated her 4th amendment rights… how do they get QI?
The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualified Immunity is that the constitutional violation (in this case, the violation of her 4th Amendment rights) needs to have been clearly found in previous cases in this particular circuit (or by the Supreme Court itself). These sorts of search and seizure cases hinge on things like "she signed a document allowing another agency to search her phone, but not share it with another one, and they want to search for anything that might implicate her boyfriend an officer for Brady violations" and the 9th Circuit had never found this kind of sharing without consent or warrant for searching your own officers history to be a constitutional violation. So in this case, she can't sue for damages etc. But the next case that exactly meets these parameters with no novel grounds for argument, they can be sued.
Not surprisingly, clever lawyers find a way to make something slightly novel in most every one of these cases, at least in one particular circuit, and so basically nothing of consequence happens.
This entire doctrine only exists because the Supreme Court invented it, 8-1, in the 1960's to prevent Freedom Riders from suing courts and police officers who arrested them for trying to racially integrate public places. And somehow it's gotten worse over time.
>...The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualified Immunity is that the constitutional violation (in this case, the violation of her 4th Amendment rights) needs to have been clearly found in previous cases in this particular circuit (or by the Supreme Court itself).
The modern over-expansion of QI actually started in 1982:
>The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982).
Since then, while several justices (Kennedy, Scalia, Thomas, Sotomayor ) have sometimes dissented and criticized the over expansion of QI, the overall court doesn't seem to want to touch it.
It's a series of cases, from 1967's Pierson v. Ray, through Harlow v. Fitzgerald (1982) to Pearson v. Callahan (2009) that made QI so insidious. (Each of those cases was 8-1 or 9-0, incidentally. The Supreme Court gets the respect it deserves.) The current status quo where QI protects against any consequences to police brutality or monetary damages to violations of civil rights is largely a result of Pearson v. Callahan, which is what I was referring to.
From the article, I took the court's final decision as "nobody said you couldn't, but we're saying it now, so don't get caught doing it again".
Despite the fourth amendment clearly saying they couldn't.
This is how QI cases work nowadays. The problem is that you only need a teeny tiny difference in facts for the prior situation to not count and for QI to be granted. "Oh, we've only found that shooting a kid within state borders is a violation of rights and this time the cop shot a kid across state borders so they clearly can't be expected to know that this is a violation of rights: QI granted."
The net effect is that it is remarkably difficult to sue cops who violate your rights since there is almost always going to be some minor factual thing that makes your case "unique".
Not a lawyer, but as I understand it, the original doctrine of qualified immunity was designed to shield law enforcement acting in good faith from frivolous lawsuits. But it's morphed into . . . this.
No, it was designed to shield law enforcement officers violating the Ku Klux Klan Act from legitimate lawsuits. See [1], which is the case where it started. Qualified immunity is only relevant when the lawsuit is not frivolous anyway...
Part of me wonders whether it is sincerely possible to violate someone's constitutional rights "in good faith". I feel like being a functional police officer should entail knowing the limits on your power, in the same way you're obligated to know what laws you're actually enforcing.
> Part of me wonders whether it is sincerely possible to violate someone's constitutional rights "in good faith".
Person running down the sidewalk pursued by someone shouting "stop, thief!" gets tackled by a cop and cuffed. Turns out to be mistaken identity or they'd done self-checkout. Rights violation? Yes. Good faith? Also, yes.
> Person running down the sidewalk pursued by someone shouting "stop, thief!" gets tackled by a cop and cuffed. Turns out to be mistaken identity or they'd done self-checkout.
Not sure that'd be a rights violation. The cop would be able to say they had reasonable suspicion that a crime was being committed justifying the detention. Excessive force is a possibility depending on the details, such as the extent of the injuries that resulted from being forced to the ground or if the cop ordered the runner to stop before tackling them.
Disagree. It's very easy to do it in good faith--you have been given some incorrect piece of information that makes you think you're within the law. Somebody transposed some digits, you hit the wrong house.
That being said, there's no justification for sharing the nudes. Doesn't matter if you have a warrant, that's still wrong.
Which facts are complicated here? The sherif in her home town got access to her the contents of her phone under dubious reasons, gossiped about her arrest, and showed off her nude photos. Seems pretty cut and dry to me
Seriously - I'm struggling to even imagine a good faith version of sharing nude photos of someone else without their permission. Doing so after getting access to those photos through an abuse of power is horrifying.
Sadly, the existence of a good faith version of the facts isn't really necessary for qualified immunity. You basically just need the court to say "there isn't a prior case with these exact facts demonstrating that it is a constitutional violation" and you are good to go.
Even if everybody with a brain can look at the facts and say "well that's obviously a violation of rights" the court can happily say "nope there is some minor factual delta that means that we haven't explicitly ruled on this exact circumstance so how could a cop ever know that they were violating rights?"
The good faith version of this would be that he is telling the truth, he didn't share or offer to share the photos with anyone, and the rumors the plaintiff heard about people seeing the photos were just rumors. (I think it's clear that at the very least, he mentioned the nude photos to at least one other person - otherwise no rumor could get started in the first place - which is obviously bad behavior, but not nearly as bad as actually sharing the photos.)
Because the sharing of the photos with other people wasn't established by the evidence, the court was just ruling on whether the DA had violated the plaintiffs rights by transferring the data dump from the plaintiff's phone to the sheriff, and whether that violation was obvious/established enough from prior court rulings to revoke QI. It had nothing to do with sharing the photos themselves with anyone (the DA didn't know the data dump had the photos when he shared it).
I've come across compromising data over the years--and never have I referred to it in any way that would permit identification of the person. Either it warrants going to the police or it stays private, there's no in between.
The fact that she claimed her boyfriend is a sheriff's deputy, so his bosses wanted to look at her phone for evidence that he was involved in crimes. It allows them to claim they had a legitimate reason to share the data other than just ogling the photos.
Which is all just to say: don't talk to cops and don't agree to searches, even if you think dating one will help you get out of trouble.
Don't date cops. Just don't. ... Years ago, a friend of mine went on a few dates with a cop. She ended up not being interested, so she broke it off. Then the harassment began. Her phone/landline rang non-stop. Cops in marked cars would sit outside her house. He even showed up at her work, talking to her co-workers, claiming she was under investigation for some kind of fraud (she wasn't). And, strange dudes started following her in the subway (NYC).
Who do you call when you're being harassed by the people you're supposed to call when you're being harassed? ... Luckily for her, she had a cousin that was a 20-year NYPD veteran. Him and some other veterans cops went to "have a talk" with the younger cop. Problem solved, but it was a total nightmare for her.
The people who trust cops are the most at risk of this. Those who don’t know their rights or who are afraid to assert them are also at risk.
The people who have already internalized this statement are least at risk.
But we are all at risk when police are corrupt. And the fact that police who do these things still have jobs means that the number of corrupt officers is far larger than it should be.
fourth amendment prevented prosecution from unwarranted search. It did not make the search illegal. The police did something somewhat illegal and got qualified immunity for that thing.
I think it’s terrible that these unscrupulous officers are hiding behind QI when they knew what they were doing was both wrong and unconstitutional…not to mention mean. Their mothers taught them better than this.
I also think we should find a way to reform the function of QI as a protection for civil servants.
But.
This is why moral leadership matters in government, at every level. The government’s agents will always possess enough power to hurt or embarrass or kill its citizens and the truth is that no amount of fear of prosecution will fully take that away. The particular law enforcement office in this case has a massive cultural problem if it would tolerate this kind of thing in the first place. If the officers involved knew their superiors would discipline the hell out of them for engaging in this kind of behavior, it wouldn’t happen nearly as much.
But the reform there isn’t just to fix the law, it’s to fix the process of selecting and incentivizing law enforcement leadership, too. Sheriffs and prosecutors should be expected to run on a zero tolerance policy for this kind of evil and be hauled in front of city council to testify every time it happens. It’s embarrassing for a community and we should all expect better of the people we trust with our public safety.
I understand that there are recruiting challenges with LEO’s and it can be tenuous for a mayor to get too confrontational with the sheriff. Maybe we need an independent oversight board or something. But we can re-incentivize good behavior, and then expect our leaders to exhibit it.
The literal president of the US is issuing scam-crypto and the supreme court has ruled that they can take bribes.
From my perspective - honor and integrity in the government is clearly gone. The moral leadership has exited the building, and is currently getting buried in the ditch out back. There's not even enough accountability to pretend anymore.
It's going to be a long, hard road back to anything that approaches "ok", and my guess is it's going to have to happen at the extreme local level.
I hope it's obvious by now that apparently plenty of those people did not change their opinion, just their words.
Christ, Clarance Thomas frequently signals that he wants to roll back the legal protections for interracial marriage and just look at his marriage.
As soon as the House puts forward a bill to ban interracial marriage, you can rest assured that 5% is suddenly more like 50%. We are going backwards and they've been eagerly waiting to dig out the old social norms. Assholes on twitter are already back to using "retard" as a slur, as if 4chan is a role model.
I don't think that all that many people actually changed their minds. Rather, those who grew up after the civil rights movement weren't indoctrinated into racism and thus most are not racist. I have yet to meet anyone who in any way indicated a problem with me marrying outside my race. (I have encountered a few online.) She, however, has had multiple incidents of criticism for marrying outside hers.
As for "retard" it's always been an insult within my life. Xitter has become the domain of assholes, it's not surprising you see it a lot more than you used to.
Good question. The options are figure out a way to improve moral expectations or move to damage mitigation of reducing the scope and power of government officials
Yes, but I think it's pretty clear the "majority" of Americans don't consider moral leadership to be of much value, certainly not compared to the price of eggs or making sure trans people use their "God ordained bathroom".
For some things (e.g. abortion), this is a plausible explanation; but that doesn't explain the sheer vindictiveness of confiscating the travel documents of people who are at risk of bodily harm if they can't leave the region (to give one example).
It does. A major (perhaps the sole) aspect of this morality is that certain people are good and certain people are bad and the rules exist to benefit the former and to be used against the latter.
Do they? From what I've read, they tend to excuse Trump's immorality (which is pretty obvious), because "cheap gas" and "deep state Marxists". It's really hard to square Trump with "traditional American Judeo-Christian morals".
I don't mean "traditional American Judeo-Christian morals," whatever those are. I mean an authoritarian mindset. Trump is definitionally good because he's "strong" and he's their leader. Similarly, police are definitionally good because they enforce the law. Anything they do (unless it's against their own, or against a group more worthy than they) is therefore inherently justified.
They excuse Trump's immorality because they don't see it as immorality. They might talk about it in those terms, but that's just because they know that things like having sex with a porn star while married is generally considered wrong. It's not actually used as part of the evaluation of how good or bad a person is.
Trying to understand your point here (I think we actually agree, but you're coming at it from a different angle).
So you're saying that because they accept Trump as their leader, therefore whatever he does is "moral", regardless of what former "morality standards" they might have had? (I brought up Judeo-Christian because that's where traditionally American moral standards have come from, the 10 Commandments and all.) Or are you saying that all along their moral standards have been "to the strongest" (more Darwinistic in nature).
I mean all along. Obviously this doesn't apply to every Trump supporter, but there's a large core that inherently thinks this way. What's new is that Trump has leaned into this mindset much more than his predecessors, and he's much more obviously immoral by "normal" (i.e. something along the lines of what you and I probably think) standards.
Bob Altemeyer explains this mindset much better than I could in his book The Authoritarians: https://theauthoritarians.org
Certainly Trump has normalized certain behavior (like over racism, sexism, ableism, me-first-and-fuck-everyone-else capitalism/Americanism, fascism too though people don't understand it as that) that society looked like it was gradually getting away from over the last 50 years. It's sad to see how quickly all that resurfaces with only a little encouragement.
> Under qualified immunity, government officials can be held accountable for violating someone’s rights only if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional.
Who made this rule?! So a court would have to rule on each and every possible abuse of the law by a government official??
It was created out of whole cloth by the Supreme Court in 1967's Pierson v. Ray.
That case was a grim reminder of just how terrible the Supreme Court has always been: 15 Episcopal Priests were taking part in the Freedom Rides in 1961 (racially integrated groups taking public transportation across the South to defacto desegregate what had been defacto segregated, the group was 12 white priests and 3 African-American ones). Two police officers arrested all 15 priests while they were sitting in a restaurant for "breach of the peace." A judge convicted them and sentenced them each to four months in prison. They sued the police officers and the judge for false imprisonment. An all-white Jury found the police officers not liable. The Mississippi state supreme court ruled that the judge couldn't even be sued. A Federal Appeals court found the original law (the breach of the peace law) completely unconstitutional, but that the Judge couldn't be sued for upholding the law as it exists: "Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not." The Supreme Court ruled 8-1 in favor of the Judge and against the Priests, creating the concept of Qualified Immunity.
Starting with the mid-aughts conservative turn of the Supreme Court (basically the time that O'Connor is replaced by Alito) it has grown to cover pretty much every act that law enforcement takes, with the modern standard being, basically, "your circuit needs to have found this particular violation to be unconstitutional already for it to count." The recent Supreme Court case finding that President's are immune to prosecution for "Official Acts" has a similar philosophical (though not legal) basis.
Do you honestly think, as a principled position, that police officers should be personally liable for enforcing a law which is later decided to be unconstitutional?
For example, if a police officer in 1994 arrested someone for violating the Gun Free School Zones act (struck down as unconstitutional in 1995), should they be personally liable for the damages? Should the judge who decided the case?
Similarly, if a police officer in NYC arrested someone in 2018 for violating the ban on "gravity knives" (struck down as unconstitutional in 2019), should they be personally liable?
If a police officer in Washington, DC arrested someone for violating the city's ban on handguns in 2007 (struck down by the Supreme Court in 2008), should they be personally liable?
Would it be a good thing if police officers and officials refuse to enforce Washington state's ban on "assault weapons", or Oregon's magazine capacity limit, because the "conservative turn" of the Supreme Court means that the law might get struck down as unconstitutional, and then they'd be personally liable for the damages?
I think it's clear that QI sometimes leads to bad outcomes, but honestly, I'm not sure how the system would function without some similar concept.
I think that letting it go to a jury is reasonable. QI short-circuits the entire jury process, ending the case almost immediately. Letting a lawsuit develop and letting a jury decide if the Officers actions were reasonable or not, given the totality of the circumstances, seems the correct solution to the problem, which as you note is somewhat tricky. After all, the officers who arrested the original 15 Episcopal Priests were found not liable by a jury of their peers. If it worked for them, why do you think it wouldn't work now?
Yes, police officers will have to deal with more lawsuits, but that's not an outcome that bothers me particularly. Society grants them a great deal of rights to violence that the rest of us do not have, they should likewise face greater scrutiny for their choices, or they are not worthy of holding that responsibility.
Note that Colorado removed QI by law, and made officers personally liable (up to certain limits) and seems to not be any sort of anarchy.
Letting it get to a jury opens them up to a flood of baseless lawsuits. People seeking to get go-away money. There needs to be a high fence and it needs to be determined by forces other than the person bringing the lawsuit.
You can easily come up with opposite scenarios: if the law says you go to jail for being a certain race and sitting in a certain place, or for being certain sex and wearing certain clothes, should police officers suffer no consequences for enforcing such things? We've long established that "just following orders" is not a sufficient excuse.
There are cases where it's reasonable for a police officer to enforce a law that turns out to be unconstitutional and there are cases where it's not. Distinguishing between those cases is what the courts are for. Giving officers blanket immunity is not the way to handle it.
Every time I'm out and about, I have to wonder if I'm making some mistake that's going to get me in trouble with the law. Why should police be exempt from this?
often legal by their countries law hence the excuse "i was just following orders/my laws" being similar to cops "following the law" even in the clear face of it being wrong
The same way it does everything, by letting it go to a court and have them figure it out, like every one crime or civil action - why would the cops be different if they are doing illegal things?
This is not a sliding slope, its just acknowledging police are also just people.
It's worth noting that 3 of the 4 examples above deal with guns. The 4th deals with knives. ... Thank God we spend so much time and energy arguing about weapons, guided by a document that was written over 200 years ago. It would be a nightmare if, as a society, we spent that energy on something like curing disease or providing for the needy. Sheesh. /s
From what I've seen, it has to have been "clearly established" before meaning that unless there is an incident already labeling the act unconstitutional, no dice for the poor lady. It's how you make it so that as society evolves, officers can't be held accountable for new acts.
> Jessop v. City of Fresno: The Ninth Circuit granted immunity to the officers. The court noted that while “the theft” of “personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.”
> Corbitt v. Vickers: ... the court went on to say that “[n]o case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.”
> Kelsay v. Ernst: The majority noted that there were no prior cases involving the “particular circumstances” of this case; that is, no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”
> Allah v. Milling: The appellate court agreed that the prison guards violated Allah’s rights, specifically holding that this treatment was unlawful punishment because Allah’s treatment “cannot be said to be reasonably related to institutional security, and Defendants have identified no other legitimate governmental purpose justifying the placement.” Nevertheless, the court said the guards were entitled to immunity because there was no prior case concerning the particular disciplinary practice employed by the prison.
It's basically judicial Calvinball. "Oh, established case law says you can't kill an innocent person at 6:35pm, but it's not clearly established you can't kill an innocent person at 6:36pm!"
Nope, because the standard is not "Everybody knows it's wrong to do that", the standard is "A previous case exists where an officer did EXACTLY THE SAME THINGS in EXACTLY THE SAME SCENARIO that established that officer CLEARLY VIOLATED THEIR CONSTITUTIONAL RIGHTS"
For us mere mortals to be punished, we don't even have to know the law. For a cop to be punished, there has to be precedent. The funny part is that this situation basically means the first cop to do any illegal act will always get away with it.
This is the trick that courts use in qualified immunity cases. You can't just say "well obviously this is a violation of 4th amendment rights by any person's plain reading." You need a prior case where a judge found this specifically. And that prior case needs to match the facts of the current case basically exactly. Any minor difference can be leveraged to argue that this case is a new set of facts and that there is no prior case that would inform a cop that what they are doing is in fact a violation of rights and so they are immune from civil action.
The outcome of each one of these cases is that the cop gets off scot free and the court says "the next time this specific thing happens under our jurisdiction you can sue" but that specific thing never happens again for the rest of time because the boundaries of that specific thing are so tight.
That's insane. I was vaguely aware that the American system that has grown over the 250-year old foundation was getting rusty, but I never knew it has taken such a dark turn.
How far can you take the "precise case" thing then? Does it just apply to the specific action that was done? How far can they legally stretch what's considered to be "novel"?
Time for a civil lawsuit. I thought sharing nude pictures against the person's will against the law. I hope she gets a nice big settlement from the people involved.
This was the civil lawsuit, resolved without ever going any further, thanks to the court created doctrine of Qualified Immunity. This is the end of all legal consequences anyone involved will ever face.
The Sheriff did lose his job when he lost the election in 2020, and presumably this played a role in that election? But that's not a legal consequence, that's a political one.
Qualified immunity covers individuals but agencies do not need to be given qualified immunity because government agencies are covered by sovereign immunity. The government only allows itself to be sued when it decides.
Suing departments is also basically impossible because the bar for a "pattern of misconduct" is ludicrously high. Connick v Thompson is a particularly infuriating case where a man who was sentenced to death by a DA that deliberately withheld blood evidence that would exonerate could not get damages because the long history of Brady violations by the DA's office were actually a series of distinct violations with teeny differences so they couldn't be considered a "pattern."
> Under qualified immunity, government officials can be held accountable for violating someone’s rights only if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional.
Every public official swears an oath to uphold the US constitution. At that moment it is clearly established that you are bound by the restrictions on exercise of power as enumerated in the constitution.
It's good that the Sheriff had already lost re-election five years ago, hopefully this played a part and the current sheriff has learned a lesson. Also, you can't do exactly this again within the 9th Circuit without being sued?
That's the best case I've got for the horrific invasion of privacy that this woman and her boyfriend suffered.
> In a separate concurring 9th Circuit opinion, Circuit Judge Daniel A. Bress agreed that the court should uphold the trial court’s granting of immunity and dismissal of the claims. But he wrote that the panel should have simply affirmed the lower court ruling and not gone on to find a constitutional violation.
> It’s unclear, Bress wrote, whether Idaho authorities are more at fault, for example. “In my respectful view, prudence here dictated that we decide only what we needed to decide,” he wrote.
Daniel A. Bress is a Harvard grad, has been a member of the Federalist Society since 2003, clerked for Antonin Scalia on the Supreme Court, and was appointed to the 9th Circuit by President Trump in 2019, approved by the Senate on a party-line vote, all Republicans in favor, all Democrats opposed.
That same Sheriff was involved with the Malheur Wildlife refuge 'takeover' ... he openly supported the militia and the Feds and State Police considered him such a security liability that they ended up cutting him out of all planning. He repeatedly met for hours at a time with the militia while on duty. He's one of the 'constitutional sheriffs' that have convinced themselves they're the only lawful police in the country and that the FBI et al are illegal.
That was years before this illegal seizure and actually might be related as there were numerous complaints about his activities during the takeover from other people in the department and Haley Olsen, whose pics were stolen and shared was dating an officer that was on the Sheriff's 'shit list'.
Wouldn't it be awesome if there was like a national registry of police who had been terminated or resigned to avoid termination that police departments could use as a part of the hiring process?
Good news: there is!
Bad news: a large swathe (in the majority, actually) of Police Department Collective Bargaining Agreements forbid the use of this registry in making hiring decisions...
From my European perspective: here it is illegal to hire someone that is in such a registry, so agreements cannot change what the law say. If you have a registry that is optional, why even bother?
I guestimate that 90% of the cops are good or just fine, but the minority that do bad things are creating a bad image for all. My guestimate is that the mayors in the cities with these cops are as guilty as the bad cops for keeping and protecting them. Same for the sheriffs.
Watch for statements from police unions across the country denouncing this type of behavior. The newspaper reporter could reach out to local police unions for comment.
This sets a precedent that pretty much says you can get away if a police officer wants to poke at your pictures and even start gossips, with zero legal consequence. Sure, that does not matter to "good" police officers, but I wish the world only has good officers.
> Oregon DAs are elected in every county and are required to stand for election every four years, thereby maintaining accountability to the public they serve.
While the moral satisfaction of this DA being smacked down by a judge might be greater, far less misconduct would occur if the voters could be bothered to throw the perp's out.
But somehow, the even the concept of the voters being capable of that...just seems to have vanished from the American mindset. And when the voters can't be bothered - well, you may have a Democracy, at least on paper. But it won't stay one.
QI as a whole needs to go away. It doesn’t matter if someone is committing a crime or violating someone else’s rights as part of a job. Whether you are a policeman or judge or congressman, it is still a crime.
> Yet Palmer testified in his deposition that Carpenter twice offered him a copy of the thumb drive and told him, “There were things on the cell phone that, ‘once you see them, you can’t unsee them,’” according to the ruling.
there are a lot of problems with this
first is that it is questionable if a democracy
can exist in any form, with QI,or the form given to prosecutors
and then there is the prosecution that continued till sentencing for the former and then,
President elect, but now President, under the banner of "no one is above the law"
making any kind of reconciliation impossible
QI is absolutely a farce, but it should be noted that the woman "signed a form, giving Idaho police consent to search her cellphone" - though the article gives no indication on how much coercion was involved.
Related but this should be required viewing by any citizen of the United States:
Not to victim-blame, here... Obviously the DA and sheriff are scumbags. But, in this day and age, the privacy battle is either lost or mostly lost. As a general rule, it's probably not a good idea to keep private stuff on your phone anymore. Or, worse, in the cloud. Keep them somewhere that they at least need a warrant and/or your consent to search (and even that really isn't good enough anymore, thanks to all the abuse going on).
We should be able to rely on the law to keep the contents of our phones private but so far we can't. Don't put nudes on your phone (or just don't have nudes laying around at all!)
Why should good cops subsidise corrupt cops (with a hefty overhead for the insurance companies)? Doesn't that create an additional incentive to be corrupt? Many people are more sensitive to punishment than reward: I'd expect having your premiums go up because a fellow officer got done for abusive conduct would feel like arbitrary group punishment.
An incentive for them to quietly push out bad cops, and cover up their misdeeds long after they're gone. That doesn't sound like a healthy way to solve systemic problems, to me.
“I clearly made a mistake in 2001,” Carpenter told the Eagle. “I took immediate measures to correct that behavior and make it right with the victim. Since then I have been diligent with the courts, other attorneys, and the public in building a relationship of trust and veracity.”
Yeah. He learned nothing. These kinds of people learn nothing because we only give them slap on the wrist "punishments". We tell them they were naughty...and nothing else happens to them. He continued his career without any real impact from that 2001 event, just as he will after this event.
Is it any surprise at all that they don't behave better, when it's clear they will never actually face a consequence?
