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Remember Seattle's CHAZ/CHOP? After the place was cleared, a bunch of local businesses and property owners sued the city and now they all reached a settlement. One part that definitely didn't help Seattle were tens of thousands of deleted text messages:
[...]
The city didn't ignore notifications, officials did.
Don't sanction the city, sanction the people. The city didn't delete texts, people did. Throw those people in jail, fine them until they are destitute, and make an example that misconduct is punished personally.
Believe it or not, those people were the moderates who were trying to keep things sane. If you go to /r/Seattle they are trying to throw Durkan and Best under the bus because they are not left-wing enough.
Durkan and Best, to their credit, did eventually dismantle the zone after the two teenagers were murdered by Antifa. Other voices, especially radical members of the city council, deserve much more blame.
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I completely agree, but Qualified immunity would like to have a word with you. If cops can steal $225k during the execution of a search warrant with no repercussions, what makes you think anything anything would happen here?
Explain to me why Chauvin wasn't protected by Qualified Immunity, then. Or the cops in Memphis.
Your example does little to influence me other than to raise the level of contempt I have for judges and courts. That seems blatantly against the Fourth Amendment, but what good are parchment rights in treacherous hands?
Treacherous indeed. I was going to blame Burger, but he was the only one dissenting.
Qualified immunity does not apply to criminal charges.
"qualified immunity, as a federal doctrine, does not protect government officials from liability under state law. E.g., Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013); Jenkins v. City of New York, 478 F.3d 76, 86 (2d Cir. 2007); Samuel v. Holmes, 138 F.3d 173, 179 (5th Cir. 1998); Andreu v. Sapp, 919 F.2d 637, 640 (11th Cir. 1990)." Mack v. Williams, 138 Nev. Adv. Op. 86 (2022).
Qualified immunity is qualified. It does not apply to clearly established rights.
I would give a caveat to 2: many states have their own statutory or common-law qualified immunity doctrines, or other doctrines with similar effects. Washington State's discretionary immunity rule isn't the worst, but while the standard of 'good faith' is somewhat stricter, it's not that strict. But, yes, the general 1983-style rule is mostly federal.
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Isn't 3 pretty worthless as a restriction in practice? They keep making each rights violation more and more specific so that it's never been violated before. I'm on mobile and can't pull up specific examples, but I do remember there being some ridiculously specific rights violations.
Worthless? No. Courts deny qualified immunity all the time. See this study finding that it is relatively rarely successful. Which is not to say that it is not nevertheless successful too often.
But it is almost certainly true that the bad cases in which QI is granted get plenty of press, but unless you follow Short Circuit, you never hear about the cases in which QI is denied.
I don't think "relatively rarely successful" is an accurate summary, as much as the lead-in might want to play otherwise. The surprisingly low 'success' rate of QI it highlights in the header comes from taking a list of 1983 claims in five jurisdictions "brought by civilians, alleging constitutional violations by state and local law enforcement agencies and their employees" that reached the trial phase where QI could have been brought, and then counting only those where it was brought and resulted in a complete dismissal of all claims on QI-specific nexuses.
((Also, its procedures are 'did Bloomberg specifically catch a QI motion', which... likely undercounts.))
If you're actually interested in how often QI motions are brought and completely denied, the study gives a number closer to 30-40%. Which is still higher than I'd expect! (I don't think it breaks out those denied on "not clear) But still much larger than "relatively rarely successful", or the 3.6%/3.9% it brings in the earlier summary. There are some valid reasons to include cases dismissed for other reasons in the denominator, or where QI 'only' eliminated most counts, or where the defense did not bring QI (and maybe some cases where the LEOs were not acting under official duties?); there are valid reasons to exclude non-LEO cases. But it limits the study heavily, as does its inability to break out why those denials occurred.
Nevertheless, a 30-40% rate is a far cry from "worthless." And this Reuters data looking at appellate court decisions on excessive force shows them letting cops off on QI in a minority of cases, though 1) it varies by circuit; and 2) it is nevertheless too high, probably.
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You're correct to point out that my answer was incomplete. The default state is sovereign immunity, where anything the government does is by definition not illegal or criminal. Of course, governments can choose to waive immunity, which is why people are allowed to sue a city bus for running them over or something. For criminal prosecutions, there is a legal obstacle and a practical one. Sovereign immunity protects criminal prosecutions, as is the case in a recent SCOTUS case involving prosecution of a Turkish bank and as Nicaraguan President Manuel Noriega tried to have happen. Those examples are both foreign sovereigns, and the law for domestic sovereigns is a bit more complicated and depends on the jurisdiction. Sometimes criminal laws create an intentional double standard depending on whether the person committing the act is an agent of the state or not, as was the case until recently in Washington state where a police officer charged with murder required the prosecutor to prove "evil intent" (something not required when prosecuting a peasant). Beyond the state-specific carve-outs, there's the practical reality of governments generally being reluctant to punish one of their own. This reluctance is sharpest with police officers given the intimate working relationship they have with prosecutors. It still happens (as it did with Chauvin) but only in extreme circumstances, not as a matter of course.
Those reasons explain why criminal prosecutions are both legally and practically rare, something which would be politically difficult to change, because why would the government choose to ruin a good thing? At this point the only alternative method of redress if a government official commits a wrong is a civil suit. §1983 and similar laws explicitly waive sovereign immunity to allow civil suits, and made the field wide open. The text plainly stated that any citizen could sue every official acting under color of any law for any violations of any rights. And as relative outsiders, civil attorneys wouldn't have the same reluctance about going after "one of their own". That's at least the ideal, except as you saw, Qualified Immunity has significantly gutted §1983's previously open field to the point where it's functionally worthless.
Qualified immunity doesn't explain the whole story, but it is a significant reason behind the nobility's lack of accountability.
That seems like a gross overstatement, given the number of lawyers who seem to make a good living filing 1983 actions, including actions for police misconduct.
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Qualified immunity only covers civil trials (mostly in the context of S 1983 and Bivens torts), not criminal charges. The problem for criminal charges and cases like Jessop is more that there's no chance of the state wanting to bring a theft charge against its own employees, even where, as in Jessop, one employee had already plead guilty for a different crime committed on the job, just one that the government cared about because it interfered with a drug trial.
((And along with the special Fuck Kim Davis clause, "don't harm marginally-resisting arrestees, even on 'accident'" is one of the few things judges sometimes consider "well-established law", though sometimes not.))
You can look up the current King County prosecutor (Leesa Manion) and Washington State attorney general (Bob Ferguson), but I don't think you'd need to make too many guesses about their political alignments.
I was born and raised in the state. I'm familiar with Ferguson. He's likely to run for Governor when Inslee decides to move on (please, soon). Manion doesn't ring any bells, but King County is blue as the deep sea. The KC Exec is going on fifteen years in office, and the KC Council are dominated by Dems year in, year out.
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I said it with regards to a suggestion last month about making examples of gain-of-function researchers for Covid, and I'll say it again here: you can't fine people for fucking up on high-skills jobs, because if you do you'll never get competent applicants for those positions - they'll go study a discipline with a career path that doesn't carry a jail risk, instead. So then you'll only get incompetent applicants who didn't have the brains to switch to a less risky career, having incompetent people in the position is more dangerous than having criminal people in the position.
This sort of thing is one sphere of human activity where holding people responsible for their crimes is actively detrimental to the greater good.
Sorry, but the current (terrible) practice of punishing a faceless organisation is nevertheless the least terrible of all the options. Well, aside from encouraging voters to stop electing crooks, but no-one's cracked that problem since Pericles.
If you're one of the umpteen US generals who lied to the public and the politicians about winning the war in Afghanistan, making progress and so on, then you ought to be punished. There's already a problem of there being too many suck-ups in the military, there are only so many slots open to become a general so they have to please all of their superiors. But the way to fix this isn't to make the system even more uncompetitive and stratified. We need to open up more new posts, appoint people who get results. Real-world success should be rewarded and failure punished. If we don't get rid of the old guard who lose wars to illiterate goatherders with 1/1000 of our resources, how can we expect to win wars against strong opponents?
These people and systems are not functioning at anything near peak performance. It is possible to win wars against opponents you massively outclass, though this might be a novel concept to the average NATO commander. Or even if we can't reach a vaguely decent level of performance, could we aim for 'dignified exit within a year of realizing we can't achieve our political goals' as opposed to 'subsidizing a pedophile-run army and funding corrupt Afghan officials for hundreds of billions in the vain hope something will change and we'll suddenly achieve our goals'?
People obey incentives. If we don't provide a serious negative incentive for global failures like 'losing the war', they'll simply optimize for avoiding local failures like 'bad press coverage' or 'falling behind schedule' or 'looking bad to my superiors'. But these local failures are there precisely to avoid global failures. The whole point of press coverage and oversight is to correct mistakes rather than letting them get entrenched. Only a severe punishment for global failure can get people to acknowledge local failure. If admirals and top brass knew they'd face serious punishment if their warships crash into civilian freighters (and kill seven sailors in the case of the USS Fitzgerald), they'd take the time to train them better and maintain their fleet properly rather than accept every political request to do missions and run themselves ragged.
If we don't punish the gain-of-function researchers who unleashed this catastrophic disaster, they will do it again and again. We already obliterate the careers of geniuses who have sex in the workplace. And then we wonder why fertility rates are falling... If we're going to punish people, it should be for some kind of actual failure.
I'd be very happy to see a world where there wasn't a single gain-of-function researcher, we should be moving towards that scenario at great speed. Militaries do need generals - but there's a lot of competition to become a general. There are plenty of aspiring officers.
On the other hand, if you save the govt 500K or 1M through some method, you should get a large bonus for your work.
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No, I think it's the reverse.
The competent applicants are all in the private sector (where punishments for incompetence or malice exist- wages are higher as a result), and the incompetent applicants are all in the public sector (where the protections you described exist- ignoring the black swan event that is "the public gets so angry they just kill you").
The public sector also has a unique failure mode where incompetence and political motivation are indistinguishable from one another, and intentionally not punishing those things just serves to amplify the power of whatever political opinion can best leverage who/whom. Additionally, the public sector can excuse the same sort of who/whom bad behavior from the private sector in a way the private sector can't do to the public sector (outside of news media, of course), so the consequences of not reining them in are worse.
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I think the framework for civil engineering demonstrates a pretty strong case against this: criminal charges for negligent construction or operation of a business are rare, but they're not unheard of, and fines or suspensions of licenses targeting individuals are fairly common. And civil engineers are very aware that even if things like the Hyatt Regency collapse weren't brought to court, that was as much by the grace of grand jury as by law or norm.
Yet, despite being a difficult and math-heavy field, civil engineering remains a popular career path, and the Sword of Damocles has not frightened away all of the competent or risk-averse candidates. There's certainly some point where a lower standard of proof, or broader concept of liability would, but given that the Hyatt Regency guys weren't tarred and feathered I'd argue we're a little on the too-soft side even recognizing Joint Over- and Under-Diagnosis.
This also isn't really specific to any one field. You have to fuck up really bad to get twenty-five counts of involuntary manslaughter running a food processing plant! But people have done it.
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Huh? If I committed even unintentional negligence in my private sector business I could be fined and lose my licenses and my industry has no shortage of applicants - why would it be different for public sector employees?
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I don't know, the Venetians had a decent system
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People in the private sector get fined and jailed for fucking up all the time, and there doesn't seem to be a shortage of competent applicants for those positions despite the risk. Why not?
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CHAZ wasn’t just an oopsie of city leadership. They deliberately decided to keep it up. It wasn’t an innocent mistake, an accidental screwup. It is totally fine to sanction people for deliberately using the power of their position for evil.
More specifically, they embarked on an easily foreseeable train wreck, and should be held accountable. Just like a doctor or engineer who makes the same category of deliberate unforced error.
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