The article offer a good summary of what qualified immunity is and why it is a problem.
Ordinary people ... are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.
Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year. In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law.”
This actually prevents case law from being established. If it's plainly evident that tasing pregnant women for refusing to sign paper is bad, but no high profile case has established it, no lawyer will pursue such a case because there will be no payout. It's a mechanism for cops to do what they want and face no civil consequences.
“However, that justification ignores the reality that such costs are virtually always paid by the officer’s municipality, insurance, or unions. A study of more than 80 state and local law enforcement agencies across the country found that in instances of misconduct—including those involving truly egregious, clear-cut abuses of authority—individual officers almost never paid such costs.”
By all means QI should be overturned by statute so victims can be compensated, but 1983 is not a mechanism for holding officers accountable. For that we need pare way back civil service and collective bargaining based barriers to imposing consequences on mal- and misfeasant officers.
Here in NYC there are examples of officers that have had multiple judgments awarded based on their conduct costing the city millions of dollars and they still weren’t subject to any penalties. It’s virtually impossible to fire a NYPD officer for misconduct—-someone accused of murder gets fewer appeals!
Why not insured by actual insurance companies? Surely after any incident the insurance company would raise premiums and after a certain point it would no longer be affordable for bad cops to be cops.
This wouldn't be too different from a medical professional being required to have malpractice insurance.
That's what I came around to, cops should get a stipend to pay their bond. And make sure the insurance companies have full access to their personal files. I think that would get rid of 90% of your problem cops right there. Because they'd be unable to find insurance.
That might work, but I think focusing on the money is a very USA approach to issues. Other countries don't seem to have that incentive structure, yet still avoid these issues (at least the blatancy of them).
Pensions vary per state. In California, police pensions are mostly aggregated in an organization that specializes in administering public sector state/local employees (except teachers) called CalPERS.
The department pays into the pension for the employee if I have my facts straight. Some cities have gone bankrupt because they chose not to do this.
Police unions largely exist for setting the employment contracts, lobbying (err “bribing” if you aren’t in the US) legislators for favorable legislation language, and to assist union members if they get into administrative problems (like being caught on camera killing an unarmed civilian) or if they are disabled/killed.
No clue on how their pensions are run, my comments are of the armchair variety. All I know is that the system is broken and money is the key lever in the system.
As long as this doesn't limit damages. I personally think municipalities should be on the hook for these so that they have some responsibility for the actions of their police force.
First targeting indemnification in addition to QI needs to be a talked about goal. So far, I’m seeing a lot of articles about QI and none about indemnification.
Seems like red hearing - why are we ignoring the criminal prosecution system whenever such crimes happen? Relying on civil cases to resolve crimes against the people is step backwards from justice.
Police officers abusing authority, recklessly endangering the lives of others, and committing acts violence against citizens creates a chilling effect even more harmful than the suffering the citizens first endured. Money does not need to come into play here. Arrest, charge, and put them in jail for their crimes against society.
Yeah I would say over-reliance on financial 'incentives' is a cancerous problem with US governance. We let cops that commit crimes go in return for an muni's insurance company payout. We let CEO's go in return for a bit of innocent stockholders money.
Up and up throwing people in jail would be vastly more effective.
Nationalistic flamebait will get you banned here. Please don't post like this, and if you'd please stop posting unsubstantive comments generally, we'd be grateful.
Qualified immunity is kind of a red herring. Yes, it's important for citizens to be able to sue police, but unless those damages roll uphill they will often just be suing judgement-proof cops.
The other issue, the issue that's on everyone's mind this week, is criminal cases. Police don't avoid prison or criminal cases because of qualified immunity, but because they are not charged in the first place.
Criminal cases are a red herring. We need to address the structures and institutions that make tasing pregnant women possible.
Let's put it like this: if you came into your office one morning and the guys in the cubicles next to you are shooting up black tar heroin (and no one acts like they're doing anything wrong), does the problem lie with the individuals or with the corporation?
If criminal cases are a red herring, then why do we even need laws or police at all?
It's eminently possible for anyone to go around tasing anyone else. Law enforcement fundamentally relies on post-facto punishment. Most people don't tase pregnant women due to a sense of common decency, but most of the remaining don't do so because of the threat of punishment. When you remove the threat of punishment, it allows the deviant group to act out their desires with literal impunity.
I want all the brutality to stop, not just the murders. Any effort to prosecute will get so watered down that only the worst will be punished so we can act like we're doing something about the problem.
You can make that general argument about any single approach to reform. Let's not put all our hopes in any one single solution, and let's not be misled into false dichotomies.
It's exactly this line of thinking that will tell people the problem is solved once those four policemen are convicted. If a gang is terrorizing people, does the problem go away when you put a few members in jail?
If I can continue your analogy (though I admit it's a little confusing) - if a gang member is caught breaking the law and we have another law preventing prosecution, let's fix that bug.
Structural issues which create gangs need to be addressed, and it's true that convicting the gang members might detract from the need for those structural reform, but enforcing laws is still a part of the incentive system we have to encourage people to not break the law.
We should fix structural issues, but that doesn't mean we need to leave clear bugs in tact to increase pressure on fixing those issues.
... is there a problem at all? If all they're doing is shooting up then the problem, if any, lies within the observer's mind. OTOH if they get so high they can't perform their job, and the corporation still doesn't care, then I guess there's an issue somewhere. But I don't know if heroin is the problem; if my coworkers aren't doing their job because they would rather play Snood that's equally as bad.
To address that I feel like you have to ask what would moving officers to pursue the issue that way. I suspect part of the answer is quotas and a “never back down” mindset.
QI seems like the bandaid. If you don’t push hostile policing, maybe you don’t get hostile police.
I disagree with the conclusion that qualified immunity is unimportant. It's one small facet of a system which encourages hostile policing. Others include the practice of exclusively hiring veterans, access to military gear, friendly relations between police and local officials, and the nature of their training and culture. To some extent, these things reinforce one another. I think the larger problem can only be addressed by tackling the smaller problems one-by-one.
I suspect that policing practices became hostile first and QI is the legal loophole to get away with it. If you eliminate it the “system” will find another way to do it. “Active” policing is a lot of “cleaning up the neighborhood” and “maintaining property value”. As long is that is the part of the goal there will be away to protect police.
Get rid of QI and then let the departments decide whether or not to make the individuals pay. In either case there is someone with incentive to get rid of bad apples, which is better than no-one.
Once we get rid of QI (which we obviously should because it has warped into a nonsensical concept), is there any reason to believe that the police unions won't end up shoving indemnification clauses into their contracts, putting us right back to where we are?
That’s already the case. QI doesn’t prevent anyone from suing the department or city. It only prevents them suing the cop. A system in which all cops are indemnified is simply QI with more paperwork.
I disagree that municipalities would have much of a choice. Right now, a municipality is theoretically liable for every officer's actions, and could contractually share some of that liability onto the officers themselves. Yet they do not, presumably because the police unions do not allow it, and the system as a whole is great at shirking all liability for its misdeeds. Getting rid of QI does change the default option, but I would assume the unions would use the same negotiation techniques to get indemnification clauses.
>Firming up what had long been held as common practice, the U.S. Supreme Court in 1976 ruled in Imbler v. Pachtman that prosecutors cannot face civil lawsuits for prosecutorial abuses, no matter how severe
What other job exists on the face of the planet where there's such a strong guarantee and therefore so much moral hazard?
Normally I would consider this off-topic, but prosecutors depend on relationships with law enforcement to try and argue court cases. Corruption and abuses are people problems, as much as institutional problems. It’s important to align incentives toward justice in all areas of the justice system.
https://mappingpoliceviolence.org/ claims that 99% of police killings from 2013-2019 have not resulted in officers being charged with a crime. Their database lists 7663 killings, of which 26 (or .33%) were tried with a conviction.
A competent lawyer can find a violation of Federal law violation in almost any impromptu government action, mainly violations of due process rights. The key substantive benefit of making such a claim, piling onto state law violations, is recovery of attorneys fees under Section 1983.
It's easy to see that each example in the article involved improper conduct that hopefully violated state law. State law decisions in each case hopefully would have been easy(ier). Constitutional law, on the other hand, sometimes is hard-- especially when there isn't a decision directly on point.
So, we get qualified immunity, where judges decline to allow the tail of (potential) attorneys fee recovery wag the dog of constitutional law challenges that involve complicated issues of both fact and law. No one loves litigation about attorneys fees except lawyers, and that's key insight in understanding the law of qualified immunity.
An alternate solution would be to adjust the incentives that litigants have to bring Section 1983 challenges in the first place-- possibly by making attorneys fees more generally available to litigants-- so that they reserve Section 1983 claims for those cases where they are truly decisive.
Edit: The article does talk about attorneys fees briefly, I corrected my comment. Thanks.
> The key substantive benefit of making such a claim, piling onto state law violations, is recovery of attorneys fees under Section 1983 (the article does not discuss this).
Perhaps you should go back and read the article again -- it absolutely does discuss this.
Cops can't be held liable for violating case law until another cop has been held liable for that same act. The solution is left as an exercise for the reader.
This. What actionable steps can I take to make a change?
- call your legislators / senators / city officials -- sure, but can I do more than a call?
- What is the form of a bill/law that I can get behind? How does such a process start and finish? I would donate $$$ right now to any organization with a clear plan to overturn this.
Ordinary people ... are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.
Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year. In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law.”