Posted on 07/08/2020 7:24:01 AM PDT by Kaslin
Former Minneapolis police officer Derek Chauvin faces murder and manslaughter charges for kneeling on George Floyd's neck until he stopped breathing. But even if Chauvin is convicted, Floyd's family may not be able to pursue claims under a federal statute that authorizes lawsuits against government officials who violate people's constitutional rights.
The uncertain prospects for the lawsuit Floyd's relatives plan to file underlines the unjust and irrational consequences of qualified immunity, a doctrine that shields police from liability for outrageous conduct when the rights they violated were not "clearly established" at the time. Congress should seize the opportunity created by Floyd's May 25 death and the nationwide protests it provoked to abolish that doctrine, which the Supreme Court unlawfully grafted onto the Civil Rights Act of 1871.
Was it "clearly established" on May 25 that kneeling on a prone, handcuffed arrestee's neck for nearly nine minutes violated his Fourth Amendment rights? The issue is surprisingly unsettled in the 8th Circuit, which includes Minnesota.
The U.S. Court of Appeals for the 8th Circuit blocked civil rights claims in two recent cases with broadly similar facts: handcuffed detainees who died after being restrained face down by several officers. Unlike those detainees, Floyd was not actively resisting at the time of his death, except to repeatedly complain that he could not breathe.
While that distinction could make a difference in the constitutional analysis, we can't be sure. Even if the 8th Circuit concluded that Chauvin's actions were unconstitutional, it could still decide the law on that point was not clear enough at the time of Floyd's arrest, meaning Chauvin would receive qualified immunity.
The 8th Circuit could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut. To defeat qualified immunity in this case, says UCLA law professor Joanna Schwartz, a leading critic of the doctrine, Floyd's family "would have to find cases in which earlier defendants were found to have violated the law in precisely the same way."
This term, the Court had 13 opportunities to revisit qualified immunity, but it has not accepted any of those petitions and so far has rejected all but one. Those rejected cases included one that posed this question: "Does binding authority holding that a police officer violates the Fourth Amendment when he uses a police dog to apprehend a suspect who has surrendered by lying down on the ground 'clearly establish' that it is likewise unconstitutional to use a police dog on a suspect who has surrendered by sitting on the ground with his hands up?"
The U.S. Court of Appeals for the 6th Circuit thought not. Dissenting from his colleagues' refusal to review that decision, Justice Clarence Thomas reiterated his doubts about qualified immunity, saying, "There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe."
Given the Supreme Court's lack of interest in reconsidering qualified immunity, Congress has a responsibility to reassert its legislative powers by revoking this license for police abuse. Last week, Schwartz and more than 300 other law professors urged Congress to do so, noting that the doctrine gives cops not only "one free pass" but also a "continuing free pass" by allowing courts to block claims without ruling on their merits, thus ensuring "that no law becomes clearly established."
The Ending Qualified Immunity Act, which Rep. Justin Amash, L-Mich., introduced last month, so far has 64 cosponsors, all but one of whom are Democrats. The situation is similar in the Senate, where Mike Braun, R-Ind., recently unveiled the Reforming Qualified Immunity Act, which would narrow the doctrine and make municipalities liable for police misconduct.
This issue is a test for conservatives who defend the rule of law and the separation of powers. Both of those principles are undermined by a judicially invented loophole that allows government officials to escape accountability when they abuse their powers.
***the officers that beat Rodney King ***
From what I read years ago, Rodney King failed to respond to tasers so the cops knew that they would have to beat him down as he was believed to be on Angel dust. “Dusted”, they called it.
To remove qualified immunity is not to remove sovereign immunity.
“ Instead, a government would have every reason to contract their police work out to security firms like Blackwater. Does that sound like a scenario you’d recommend?”
It sure does. They can be sued civilly and prosecuted criminally so I don’t see a problem with it.
L
Well you are in full agreement with BLM. No one is going to become an officer if they can be sued into oblivion simply based on a allegation.
The vast number of allegations against cops are found to be baseless. They would all go broke if they had to lawyer up every time someone made a complaint.
And you can bet the number of allegations will skyrocket if this happens.
Removing this protection means every cop can be personally sued by every idiot with a grudge. They’ll be in court 100% of their time because of personal lawsuits.
Colorado just passed their law Removing qualified Immunity. It limits damages to $25,000 paid by the employer but it has all kinds of loopholes where the employer can claim the cop didn’t act within department policy and is no longer under the employer’s protection, which means that $25 limit is gone and the cops pays out of pocket.
“ The vast number of allegations against cops are found to be baseless. They would all go broke if they had to lawyer up every time someone made a complaint.”
Their unions or employers can provide attorneys as a condition of employment.
Next objection?
L
QI is unamerican.
I agree.
For those that support “qualified immunity”. Please contrast “qualified immunity” with "no one is above the law". So which is it?
Have you seen the number of frivolous civil rights complaints that get filed against even the good cops who follow all the rules?
It's staggering. Take away their qualified immunity and we won't have to worry about the efforts to defund the police, there won't be any.
Loser pays legal fees should remedy this.
“Why would cops quit en made? It’s not that cops ever end up personally liable for those judgments. The municipality indemnifies then whether or not QI is a defense. It will just incentivize cities to hire cops less prone to gratuitous violence.”
Making Police Chiefs personally liable and the Mayors who appoint them and the union bosses who protect violent officers would accomplish more than going after the officers.
I am OK with that as long as the agency pays for it. But then whats the point. The city already has attorneys siting around on their hands, but if they want to contract for outside counsel fine probably better attorneys anyway.
But no city would agree to this. The qualified immunity enjoyed by the officers does not extend to the city, they are still on the hook for damages done by their employee.
This is countered by police body cameras quite nicely. Successful claims against departments that properly use cameras, especially departments that do *not* allow officers to switch off their cameras, have plummeted with the advent of this technology.
In practice, when properly administered, it’s only the bad cops that have problems with camera systems.
Qualified immunity is an extension of sovereign immunity, so that may just be a matter of semantics.
I would prefer to have no police officers at all — period.
Great. Get that passed into law, and then come back and peddle this anti-QI line to us.
A tragedy.
One that will continue to happen.
The police arrests a dangerously agitated man, that resists arrest. Being Muscular and 6’7” several police wrestle with him for over ten minutes and are unable to put him in the police vehicle as he is agitated and high on amphetamines.
Their only choice is to bring him to ground, where he continues to resist, eventually held and immobilized for an additional nine minutes with a knee to the neck at which point he dies.
The knee to the neck is an approved method for immobilization of a resisting subject included in the training manual for that department. No choke hold was applied. The cop, however ignored the pleas of the subject that he could not breathe.
How is the police supposed to know that he was infected with COVID-19 and thus had respiratory problems?
How is the police supposed to know that he had as much Fentanyl in his bloodstream as the dosage they give terminal patients (drugged out of his mind)?. Fentanyl depresses the respiratory system and causes death.
How is the police supposed to know that he had an enlarged heart and suffered from heart problems? The autopsy indicated a heart attack as cause of death (not asphyxiation, not choking).
So a man struggles for over twenty minutes and dies of a heart attack.. pretty common just like a man shoveling snow in winter and suffering the same fate.
What can the police do? What could they have done differently? Possibly handcuff him, and ankle cuff him and leave him alone in the ground..
But it will happen again.
I think the solution is to inform people not to resist arrest. Not to fight the police.
If Floyd had sat on the police cruiser he would still be alive and the lives of four cops would not have been destroyed.
A tragedy.
And why are racist people assume there was racial bias in this arrest? What does it have to do with the color of anybody’s skin?
And to add to all of that...
If you remove immunity from the police, why would any person work for the police department?
As long as people resists arrest tragedies like this will continue to happen.
The same should apply to anyone involved in a ‘no knock’ raid that is at the wrong house; the judge, the cops, anyone who approved. Uniform or no, job assignment or no, kicking in a door with no warning and shooting anyone who resists is a crime, end of subject, ‘doing my job as ordered’ should never be an excuse; if you’re too much of a fascist to see that busting through a door and shooting someone sleeping is wrong, regardless of what your captain or a judge says, your ass should be breaking rocks in jail. It should be in the back of every cop’s head “what if the person on the other side of the door is innocent and somebody set up a SWATTING”.
We are *ALWAYS* responsible for any and all of our own actions, notwithstanding orders from superiors or the laws we are supposed to obey.
And the judges that sign off on ‘no knock’ warrants- if they aren’t 100% sure there is enough information to potentially kill everyone in the house (wrong house with an armed citizen residing in it and responding appropriately to such a raid) then that judge should be at risk of losing everything just as if they pulled the trigger on a sleeping, innocent Citizen themselves. Same with any upper officers.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.