Posted on 03/10/2021 11:23:46 AM PST by nickcarraway
The Supreme Court delivers another blow to a victim of egregious police abuse.
On July 28, 2016, a group of Cleveland police officers dressed in plain clothes and driving in an unmarked car idled up to a house, where they spotted a man on the front porch. The man was named Shase Howse, and he lived in that house with his mother. The police proceeded to beat and arrest him.
Last year a federal court ruled that those two cops were protected by the legal doctrine known as qualified immunity. And this morning, buried in the Supreme Court order, came the news that SCOTUS will not hear the case.
On the day he was arrested, Howse says, he was searching for his keys when the officers—who he didn't realize were officers, since they were dressed normally—appeared. They asked if Howse lived at the residence. Howse replied yes, and the cops drove away. They soon doubled back. As I wrote in June:
After Howse answered in the affirmative, Officer Brian Middaugh of the Cleveland Police Department (CPD) pressed Howse on if he was sure he lived there. "Yes, what the fuck?" Howse allegedly responded, still unaware Middaugh was a cop. Middaugh, commenting on Howse's bad attitude, then exited the unmarked vehicle and approached him on the porch, asking him once again if he lived there. Howse said he did.
Following that exchange, Howse alleges that Middaugh commanded him to put his hands behind his back because he was going to jail. Howse did not oblige, telling Middaugh that he lived at the residence and that he'd done nothing wrong. Middaugh then threw him to the ground, and with the help of CPD Officer Thomas Hodous, handcuffed him while Howse resisted. It was after he was tackled that Howse realized the men were police officers.
As he lay on the porch, Howse's mother, who heard the noise from inside, exited the residence, where she says she saw one man straddling her son while another punched his head with a closed fist, causing Howse's head to hit the porch. She, too, did not initially realize they were officers.
Howse was charged with two counts of assault and one count of obstructing official business. He then sat in jail for several days. The charges were eventually dropped.
Howse countered with his suit, arguing the officers had violated his Fourth Amendment rights with excessive force and malicious prosecution. The U.S. Court of Appeals for the 6th Circuit rejected this, saying that the cops were protected by qualified immunity. That doctrine shields public officials from certain sorts of civil rights suits if their alleged misbehavior was not "clearly established" in case law.
In other words, for a plaintiff to have the right to bring a case before a jury, he must pinpoint a precedent that outlines the factual circumstances of his case almost identically. A few choice examples: Qualified immunity has protected two cops who stole $225,000 while executing a search warrant, a cop who ruined a man's car during a bogus drug search, a cop who shot a 10-year-old, and two cops who sicced a police dog on a surrendered suspect. Howse can now add his case to that list, as he will not have another chance at appeal.
In awarding the officers qualified immunity last year, Circuit Judge Amul Thapar wrote: "'Clearly established' means that the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct. To avoid 'paralysis by analysis,' qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law."
That's what the "clearly established" standard is supposed to do. But that's not what it does in practice. What public official does not know stealing is wrong? Should an officer have to study case law texts in advance to know that beating and arresting someone on bogus charges is a constitutional violation? Thapar has unintentionally explained why the doctrine is so obscene.
"It requires a certain amount of effort to write an exceptionally bad qualified immunity opinion, but this is, by any standard, an exceptionally bad one," Clark Neily, vice president for criminal justice at the Cato Institute, told me last summer. "Simply refusing to interact with police, and even being rude to them, does not provide probable cause for them to make an arrest, which is really what this case boils down to."
Howse's attorneys asked the high court to consider two issues: "whether the law is clearly established that an officer cannot arrest a person whom the officer has no reason to believe committed a crime, tackle him to effect the arrest, and then strike him in the neck when he poses no threat to anyone's safety," and "whether a Fourth Amendment malicious prosecution claim must be dismissed simply because one of the underlying charges is supported by probable cause."
They will hear neither. Although Howse committed no crime by standing outside his own home, he stiffened his body and screamed while being arrested, which the majority thought was enough to void the entire malicious prosecution claim.
The Supreme Court's announcement adds to its mixed legacy on qualified immunity. It has refused many other chances to fundamentally reassess the legal doctrine. But in this recent session, it has been willing to reshape its application. In November, it overturned a federal court decision giving qualified immunity to a group of prison guards who locked a naked inmate in a cell filled with "massive amounts" of human feces and another cell overflowing with raw sewage. And last month, the Court reversed another federal ruling—which granted qualified immunity to a correctional officer who pepper-sprayed an inmate without provocation—and told the 5th Circuit Court of Appeals to reconsider.
It's progress. And it's true that it's the legislature, not the Supreme Court, that is supposed to create policy. But then again, qualified immunity itself was not created by legislature. It was created by the Supreme Court.
Some would say, and maybe the SCOTUS too, that it was “suicide by cop”.
He doesn't have standing?
I don’t really care. The city is responsible for hiring and training them. They need to do a better job. They can always fire the guys, and it also means they are incentivized to make sure the rest of their guys act appropriately.
This is similar to a low level employee for a company treating you really badly. You can sue the company and they can deal with the employee.
It has been demonstrated numerous times that we can not force the public masters to do the right thing or anything at all. Maybe the Answer is to AGREE with the Entire Concept of Qualified Immunity and put it to a Test. A State that Allows Ballot Measure could and should offer one up such as:
We the People do Grant to Ourselves All Special Rights, Privileges, Preferences and Immunities our Public Employee’s have been Granted
The USSC is communist now.
Responding “that’s OK, he can sue the city” shows why this continues to happen. The government drag out the case, maybe pays mild damages, and the two arresting sh!tsacks continue with their careers. If, on the other hand, they face a real possibility of losing everything they own and spending cell time with a roommate named Icepick, they’re more likely to think twice.
It is the immeasurable joys of living in a police state...
Things like this will become an everyday event during the next year...
LEO’s at every level are going to be going on a violence binge as the LEO’s transition, formally, to the American Gestapo that obunghole dreamed about...
Now *that’s* immunity.
= = =
And the shooter gets a replacement cartridge for the one he used.
Any officer with brains should realize that wearing plain clothes while on duty puts them at great risk of instant retaliation. The uniform serves as a sort of shield to others that they are conducting official business and not come to the aid of the suspect. These cops placed themselves at great should any passerby or neighbor had come to the suspect’s aid.
And the media will quite often omit details that would tend to make the cops' actions understandable.
We're at the point where no one knows what to believe.
That’s what I understand. Qualified Immunity just emerged somewhere.
Qualified immunity is a judicially created doctrine shielding public officials who are
performing discretionary functions from civil liability.
Critics of the doctrine have questioned its legal origins and have argued that
its practice has provided too much deference to the police at the expense of accountability and the erosion
of criminal suspects’ constitutional rights.
In other words, judges made it up from whole cloth. There is no legislative force behind it at all. Judges made it all up.
I always get concerned when an opinion piece only offers one side of the story. The link above goes to a copy of the original case and includes affidavits from the cops involved. It tells a slightly different story than the opinion piece does.
The officers were in plain clothes, did not identify themselves, and made no attempt to establish their identity as police officers when engaging with the victim. The officers then assaulted and subdued the victim because of a perceived lack of cooperation with their official duties, even thought those official duties were never revealed to the victim.
This, I would hope, violated department policies, therefore relieving the officers of qualified immunity.
However, since the courts extended qualified immunity to the officers, there must be a bit more to this story than we are being told.
The Founders would never have put up with this.
As others noted early in the thread this “reform” is unnecessary due to the fact that the victim can and should sue the city and PD, rather than the individual officers whose actions occurred while working for the city.
I note that this deters misbehavior by keeping the responsibility for training and disciplining officers directly on the community and local employers where it belongs, rather than opening yet another door where distant outsiders in DC - and eventually globalists can gain influence over local policing.
Obviously the goal of the so-called “reform” bill is to expand the power of centralized government, which is increasingly unrepresentative and ignorant of faraway affairs in ‘flyover country,’ at the expense of the local people who know exactly where their own officials and police live in their own communities and are best positioned to do something about alleged misbehavior and govern their own affairs accordingly.
It is a wet dream of the left to have our local police affairs ruled by Socialist International.
This needs to happen, but it won't.
Be careful what you ask for as the ultimate goal is to have internationally controlled police.
They are trying to do this in New Mexico. The way the bill is written, all government employees AND people who serve as volunteers on government boards would have qualified immunity removed.
So I voluntarily serve on a Public Improvement Board. No compensation. The bill would allow citizens to sue me personally for any trumped up reason. The bill protects those who bring suit - they cannot be held responsible for legal fees even if the case is dismissed or they lose. I would be responsible for my own legal defense.
For instance...there is a tree that is interfering with the utilities it is planted on and it needs to be removed. The resident that lives next door to this public area has their yard shaded by the tree. The tree is removed and the resident files suit that we removed the tree because they are black (or gay, or Jewish, or whatever). They name all of the board members as plaintiffs. We now have to hire lawyers to protect ourselves. We have been told such a defense would cost between $20K and $30K.
Sometimes qualified immunity is a good thing.
Not really. Without qualified immunity any cop who offended a rich person, or someone with a group backing them, or perhaps just demented, could be sued and resued into penury. But the SC has taken the position that even if the trial court finds the officer did wrong, the officer is entitled to qualified immunity unless they had notice, by way of a prior case involving practically the same facts, that their acts were wrong.
So the next cop who does exactly this will not be entitled to immunity -- assuming the lower courts did not find that these cops acted appropriately. But by allowing qualified immunity to to cover so many patently bad acts, and not balanced the need to protect good cops with the rights of those whom bad cops abuse, the SC has made it very likely that Congress will pass a bill overcorrects in the other direction.
That also tends to be part for the course where police shootings are involved.
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