Immunity is the problem

[Bone]

With a lot of discussion of specific police encounters, what we’d like police and people to do, what is realistically possible to change, there’s an aspect of the conversation that hasn’t been touched on with any depth that I believe is the biggest driver of behavior we’ve seen across multiple interactions with the justice system across the country. And that is the various levels of immunity enjoyed by the various roles in the justice system.

Qualified immunity:

Qualified immunity, when applicable, shields government officials from liability for the violation of an individual’s federalconstitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate “clearly established law.”

Judicial Immunity

Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from lawsuits brought against them for judicial actions, no matter how incompetent, negligent, or malicious such conduct might be, even if this conduct is in violation of statutes.

Prosecutorial immunity: I don’t have a good link that summarizes this however it is essentially absolute immunity for prosecutors in performing their role. Even in cases where they introduce knowingly false evidence to secure convictions.

I submit that these types of immunity go too far and the barrier to sue civilly or prosecute criminally is too high. The aspect that has the most impact on the behavior of the justice is qualified immunity for police. When police are allowed to engage in behavior that would cause an ordinary person to be either criminally or civilly liable without consequence it weakens the trust that society must place in its law enforcement agents.

A discussion of qualified immunity was had inPearson v. Callahan (pdf):

Qualified immunity balances two important interests—the
need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when
they perform their duties reasonably. The protection of
qualified immunity applies regardless of whether the
government official’s error is “a mistake of law, a mistake
of fact, or a mistake based on mixed questions of law and
fact.” Groh v. Ramirez, 540 U. S. 551, 567 (2004)

However, Stanton v Simms modified this. From here:

Before Stanton, the established inquiry of qualified immunity, found in Anderson v. Creighton, was not just whether the law was “clearly established” but also the “objective legal reasonableness” of the action. A defendant will be immune from liability only if no objectively reasonable officer could have believed his conduct was lawful or constitutional at the time the violation occurred. Malley v. Briggs, only in dicta, noted that the policy behind the “objective legal reasonableness” standard gives officers “breathing room to make reasonable but mistaken judgments about open legal questions,” such that "[w]hen properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.”

Stanton ignores the well-established “objectively reasonable” standard and seizes on the dicta statement ofMalley, holding, (quoting Malley): “Stanton may have been mistaken in believing his actions were justified, but he was not ‘plainly incompetent.’” This holding sets a new standard: an officer will lose his immunity only if he was “plainly incompetent” in believing his conduct did not violate clearly established law.

The Supreme Court’s reliance on Malley is disingenuous; it splices the Malley policy statement and narrows-in on the “plainly incompetent” dicta (those words appear only once in Malley), transforming it as an authoritative rule in Stanton. The Malley holding does not reference “incompetence” but rather holds “objective reasonableness” “defines the qualified immunity accorded to an officer whose request for a warrant allegedly caused an unconstitutional arrest.” Even Ashcroft (which the Stanton court relies heavily for support) follows the “objectively reasonable officer” standard.

I don’t know what changes to propose for qualified immunity since it’s such a sweeping principle – but I think this alone creates significant tension in police relations. Without such sweeping immunity people would have greater means for redress and would encourage a more contemplative behavior from those charged with enforcement.

[bump]

You have to have some kind of immunity for police; otherwise every drunk and disorderly guy they have to wrestle into the squad car will be suing them for assault, as absurd as that is. Or every asshole who gets a speeding ticket will be suing them for lost wages if their tickets are dismissed or whatever.

[Little_Nemo]

@Bone

Without such sweeping immunity people would have greater means for redress and would encourage a more contemplative behavior from those charged with enforcement.

It might change the latter but it would have no effect on the former. People can seek the same redress in either situation. The only difference is whether you’re suing the police department or the police officer. The general principle in this country is the officer is acting solely as a representative of the agency he works for so the agency is legally responsible for his actions.

If the police officers were liable as individuals, then every police officer would have to carry the equivalent of malpractice insurance. The average doctor pays about $25,000 a year for this insurance. If the police had to carry similar coverage, they would need to see a salary increase and that in turn would be passed on to taxpayers.

[Shodan]

Does the qualified immunity mentioned apply to police officers? If so, how could Holder take action against Wilson for violating Brown’s civil rights (if that is the correct way to express what Holder is doing). Or the proceedings taken by (IIRC) President Bush’s Justice Department against the officers who beat Rodney King.

Or is the immunity only against private individuals, and not the federal government?

Regards,
Shodan

[Omar_Little]

The racist criticism against our various police forces is primarily misplaced.

Many of the examples that have been littered across the media over the last year (e.g. black actress handcuffed for refusing to show ID; the 12 year old Cleveland boy playing with a pellet gun; black man walking back and forth with his hands in his pockets in Pontiac, Michigan, etc.) which people have brought up to show how the police unfairly target black people, were all the result of individuals calling into 911 believing that criminal activity was taking place. The police that are sent out by dispatchers are required to investigate these complaints. Sometimes the situations end in very poor outcomes. But the police are unfairly attributed with racist targeting behavior.

The problem is the rest of the general public that make the calls to police reporting suspicious behavior. The general public is a mix of people, some racist and some not.

Is your average person more scared of a black man walking back and forth staring into a stores windows than if it were a white man doing the same thing?

I don’t know, I suspect yes.

[Bone]

@bump

You have to have some kind of immunity for police; otherwise every drunk and disorderly guy they have to wrestle into the squad car will be suing them for assault, as absurd as that is. Or every asshole who gets a speeding ticket will be suing them for lost wages if their tickets are dismissed or whatever.

Frivalous suits could still be dismissed as such. But in those cases at least there would need to be a showing of the reason why they are frivalous. With the current state of immunity it is enough so that the merits or underlying issues are never addressed.

@Little_Nemo

It might change the latter but it would have no effect on the former. People can seek the same redress in either situation. The only difference is whether you’re suing the police department or the police officer. The general principle in this country is the officer is acting solely as a representative of the agency he works for so the agency is legally responsible for his actions.

If the police officers were liable as individuals, then every police officer would have to carry the equivalent of malpractice insurance. The average doctor pays about $25,000 a year for this insurance. If the police had to carry similar coverage, they would need to see a salary increase and that in turn would be passed on to taxpayers.

Yes they would - and in doing so it would form a check on police behavior. Right now if there is wrongdoing the department pays, which means the city or county pays and consequently the taxpayer. If the individual is personally liable, they would no longer be able to afford insurance if they were a habitual bad actor. There would be an increased incremental cost. I don’t know if that would yield a reduced overall cost but I’d be fine if it did.

@Shodan

Does the qualified immunity mentioned apply to police officers?

Yes, to police officers mostly.

If so, how could Holder take action against Wilson for violating Brown’s civil rights (if that is the correct way to express what Holder is doing). Or the proceedings taken by (IIRC) President Bush’s Justice Department against the officers who beat Rodney King.

The standard to defeat qualified immunity is that the state actor had to violate clearly established law. Above there is discussion if there is a need to show the officer acted with incompetence. If Holder or others can overcome that hurdle and show there was in fact a civil rights violation, then there would be liability.

Or is the immunity only against private individuals, and not the federal government?

Private individuals have no immunity generally. The federal government (and states) have absolute sovereign immunity. This means you can only sue them if they let you.

[Shodan]

@Bone

The standard to defeat qualified immunity is that the state actor had to violate clearly established law. Above there is discussion if there is a need to show the officer acted with incompetence. If Holder or others can overcome that hurdle and show there was in fact a civil rights violation, then there would be liability.

Thanks for your response.

Private individuals have no immunity generally. The federal government (and states) have absolute sovereign immunity. This means you can only sue them if they let you.

I meant immunity from being sued by private individuals. Sorry for my lack of clarity.

IIUYC Holder is not suing anyone - he is looking into whether or not Wilson broke the law that protected Brown’s civil rights. (I still think that kind of thing amounts to double jeopardy, but apparently I am wrong in thinking so.)

Anyway, thanks for clearing it up.

Regards,
Shodan

[lawbuff]

@Shodan

Does the qualified immunity mentioned apply to police officers? If so, how could Holder take action against Wilson for violating Brown’s civil rights (if that is the correct way to express what Holder is doing). Or the proceedings taken by (IIRC) President Bush’s Justice Department against the officers who beat Rodney King.

Or is the immunity only against private individuals, and not the federal government?

Regards,
Shodan

Criminal Civil Rights investigations by the feds center around 18 USC 242. QI is a Judicially created doctrine by the USSC.

Most civil suits center around 42 USC 1983, or for the feds, a Bivens action, = to the state actor principle. QI applies to police, yes.

[Little_Nemo]

@Omar_Little

The racist criticism against our various police forces is primarily misplaced.

Many of the examples that have been littered across the media over the last year (e.g. black actress handcuffed for refusing to show ID; the 12 year old Cleveland boy playing with a pellet gun; black man walking back and forth with his hands in his pockets in Pontiac, Michigan, etc.) which people have brought up to show how the police unfairly target black people, were all the result of individuals calling into 911 believing that criminal activity was taking place. The police that are sent out by dispatchers are required to investigate these complaints. Sometimes the situations end in very poor outcomes. But the police are unfairly attributed with racist targeting behavior.

The problem is the rest of the general public that make the calls to police reporting suspicious behavior. The general public is a mix of people, some racist and some not.

Is your average person more scared of a black man walking back and forth staring into a stores windows than if it were a white man doing the same thing?

I don’t know, I suspect yes.

I think you’re making a big and unfounded leap in the logic here. I agree that the police may be getting sent to situations based on where 911 calls are coming from. But there’s no reason to assume the police handle all situations in an identical fashion. It’s possible that when the police arrive and see that a white person is the suspect they act differently than they do when a black person is the suspect.

[UltraVires]

I think that qualified immunity strikes the right balance between the olde English common law where the “King can do no wrong” and his agents therefore had absolute immunity and the other extreme where police can be held civilly liable for making a bad decision in a rapidly developing situation.

Qualified immunity allows police to make mistakes where questions of law are unknown or unknowable, but does not protect them from clear mistakes of law where they should have known better.