Posted on 04/28/2021 4:33:02 AM PDT by Kaslin
It is indeed rare, if not unprecedented, to see a highly diverse group of organizations such as the conservative Alliance Defending Freedom, the liberal American Civil Liberties Union, the libertarian Cato Institute and the Reason Foundation on the same page as the NAACP Legal Defense and Education Fund on the same issue.
But it is happening as the U.S. Senate takes up police reform. The issue is a legal doctrine known as qualified immunity.
These diverse organizations all agree that qualified immunity is bad law and should end.
The discussion is particularly high-powered today because it stands at the center of police reform that many see is needed in the wake of incidents such as the murder of George Floyd by former police officer Derek Chauvin.
The nation's first major civil rights law, the Civil Rights Act of 1871, passed shortly after the Civil War, contains a provision known as Section 1983 that protects citizens from violation of their civil rights by government officials. It says that a government official who violates a citizen's civil rights is liable and can be sued by the injured party.
Thus stood the law, until a series of Supreme Court decisions from 1967 to 1982 reinterpreted its application.
A new standard, qualified immunity, was added saying that it must be shown that rights were violated per "clearly established law." That is, there must be a previous case in which rights were violated the exact same way.
So, if a citizen's rights are violated but there is no previous case in which rights were violated in exactly that way, there is no protection. The government official is immune from liability.
Although the law applies to violation of a citizen's civil rights by any government official, the hot button today is violations by police.
The qualified immunity doctrine makes establishing liability next to impossible, thus removing a serious deterrent against police violating civil rights in their law enforcement activities.
Police leadership and unions argue that qualified immunity is essential for them to do their job. This is a tough and dangerous business, they say, and split-second law enforcement decisions must be made, often under great uncertainty, sometimes with life-and-death implications.
But police officers being able to make deadly decisions, with no sense of personal responsibility and costs, leads to some of the horrors that we are seeing today.
Derek Chauvin had 18 complaints against him before he committed his final deadly act against George Floyd. Had the incident, in all its gory and tragic details, not been captured on video by a young onlooker, the legal outcome likely would have been much different.
Personal responsibility must be the hallmark in a free country, whether we're talking about obeying the law or enforcing it. When right and wrong become ambiguous, when personal responsibility becomes ambiguous, we see the chaos we are witnessing today.
Police officers perform a vital function in our society. But what does law enforcement mean when law has no meaning? And law has no meaning if officers have free license to violate citizens' civil rights.
A creative solution has been proposed by the Cato Institute: Require police officers to carry liability insurance, like other professionals do. This would provide them the coverage they need. And those who are flagrant violators, like Derek Chauvin, would be priced out of the market.
The only stalwart on the Supreme Court questioning the status quo on qualified immunity has been Clarence Thomas.
Thomas is an originalist -- read the law as written -- and opposed to judicial activism. He has written that qualified immunity is "the sort of 'freewheeling policy choice(s)' that we have previously disclaimed the power to make."
Thomas has urged the court to take on and review this issue. "I continue to have strong doubts about our ... qualified immunity doctrine," he wrote last year.
Policing should be a local issue, not a national one. But civil rights is a national issue, and qualified immunity should be reformed.
Agreed, Qualified Immunity sounds good, but it protects bad officials, not just cops, from the consequences of their misdeeds.
......I’ve been a fan of Star for a long time but I don’t agree with her on this. Most big city’s cannot recruit enough cops as it is now without dumping huge liability on them if they make a split second wrong decision. Thousands are quitting the profession.
What should happen instead is that big cities carry a limited liability policy that limits municipal death pay outs in wrongful death cases. I would say that the maximum wrongful death payout by officials (in a settlement) or a jury/judge should be 1 to 5 million depending on the facts of the case. No more enrichment of relatives to the tune of 27 million.
Interesting discussion points. The one big downside to the liability insurance requirement is that your local police department would basically be run by its insurance carrier. To minimize its risk, the carrier is likely to impose ludicrous standards on the officers it insures — like: (1) don’t carry a gun, and (2) don’t arrest anybody.
The insurance premiums would be paid by the department, not the individual officers. I never had a professional liability insurance policy until I started my own company. Before that, my prior employers carried the insurance coverage.
Read Police State by Gerrt Spence....
The problem with the JUSTICE system is the ten to fifteen percent of crooked cops,judges and lawyers are never called out gotten rid of..
In which case, liability should fall back to the individual or department/city. In the case of cops, for instance, this would force departments to get rid of bad apples sooner, rather than close ranks to protect them. The current hatred for cops is largely due to the “thin blue line’s” “code of silence”. Other goobermint bureaucrats and “officials” do the evil that they do because there are no personal consequences.
For God’s sake, that Derrick Chauvin had NINTEEN disciplinary complaints prior to the Knee-on-the-neck murder!
+1
The rise of an ungovernable underclass that is largely incapable of participating in polite society.
DemonRatz, you own this..
“For God’s sake, that Derrick Chauvin had NINTEEN disciplinary complaints prior to the Knee-on-the-neck murder!”
I didn’t know that either but can’t reach a conclusion without knowing what they were and how many complaints a typical street cop gets per year.
2. Don’t buy into the media bullsh!t about Chauvin’s disciplinary record. Perps who get arrested or ticketed file disciplinary complaints against cops all the time. Any cop who does his job well will have lots of these complaints. In Chauvin’s case, I believe 16 of the 19 complaints were dismissed upon review.
I think most would agree that police need some leeway with split-second decisions, especially when weapons are present. Mistakes made in good faith are just that—mistakes. What needs to happen is they need to be held personally liable when they arrest/detain for things like recording them while in public. When they threaten you with arrest for not furnishing an ID when you aren’t suspected of having committed a crime. Pulling people over unlawfully, searching without consent or some BS probalbe cause like an odor.
Immediately cease all DUI checkpoints. Stop acting like tax collectors for traffic violations. I’m not saying that they shouldn’t stop people entirely but we have got to find a better way. Everyone who drives (including cops) will speed or break some traffic law from time to time.
Youtube is full of out-of-control cops violating rights and new videos are added daily. Losing qualified immunity will help tremendously I believe.
Insurance carriers will be denying coverage for officers if they do not follow the specific rules written in the insurance policy. They will then be on their own.
Just as in all Commercial insurance policies.
God luck with that.
Understood and agreed. Perps will make unfounded complaints. Who reviewed the complaints? OTHER COPS.
I support the police, have several in my extended family. All are honorable hard-working folks that do Protect and Serve. To a person, however, they have all turned in and gotten bad cops fired, earning the hatred of other questionable cops.
If we are to save effective law enforcement, the “code of silence” must end, roid-raging-bully-boys have to go, and the us vs. them mentality must end.
When I grew up, the police were respected and were respectable. Today, most still are, but the bad apples tarnish the whole profession. Just as the black community must take ownership of their issues, so too must law enforcement. Removal of qualified immunity will force that change.
That’s the way liability insurance works. Some of us deal with it all the time. Cops can, too — or they shouldn’t be employed as cops.
I have had close friends in law enforcement, too. In fact, one of them ended up in a position where investigating civilian complaints was one of his primary responsibilities. When he was doing that job, the most common result of a complaint was that it would be dropped AT THE REQUEST OF THE COMPLAINANT when they learned that their entire interaction with the police officer had been recorded on video.
See, that transparency should be systemic. All officers should wear body cams, and all cars should have dash cams. And the footage should be public record and immediately released unedited if there are accusations of misconduct. Protects the good cops and the public at large.
Trial lawyers often will pass up a case if the potential defendant in a civil suit doesn’t have liability insurance. So, if you can have a shell company, and maintain the records and operations and accounting properly, and there is little or no NET WORTH, that’s your best and cheapest INSURANCE POLICY.
Trial lawyers often will pass up a case if the potential defendant in a civil suit doesn’t have liability insurance. So, if you can have a shell company, and maintain the records and operations and accounting properly, and there is little or no NET WORTH, that’s your best and cheapest INSURANCE POLICY.
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