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naraburns  nihil supernum  2yr ago (text post)   33480 thread views

Culture War Roundup for the week of February 13, 2023

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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?

Qualified immunity traces back to 1982, when the U.S. Supreme Court announced a rule that government officials would be liable only if their specific actions had already been held unconstitutional in an earlier court case. They called the new rule “qualified immunity.” The Court’s decision was a drastic departure from the historical standards of government accountability. At the founding and throughout the nineteenth and earlier twentieth centuries, courts simply decided whether a government official’s actions were unlawful and, if they were, ordered a remedy. It was up to the other branches of government to decide whether the official should be reimbursed (if he had acted justifiably) or not (if he had acted in bad faith).

Treacherous indeed. I was going to blame Burger, but he was the only one dissenting.

Explain to me why Chauvin wasn't protected by Qualified Immunity

  1. Qualified immunity does not apply to criminal charges.

  2. "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).

  3. 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.

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.

That's more accurate, though I'd still nitpick that the Reuters data is looking solely at excessive force claims against law enforcement. Reasonable for Reuters since that's what most people care about, but going to necessarily involve a very constrained set of cases compared to the behavior here.

It's a relevant and useful link in the sense that there are cases where this "clearly established rights" are legitimately found, and I appreciate you providing it. At the same time, looking through a handful of these denials of QI show a lot of places where there were very long-established federal court cases precisely on-point with the police behavior in the case at hand, rather than many counterparts to cases like Baxter, which is probably closer to what cjet's thinking about.

Yes, QI is certainly granted too often, esp because of a lack of clarity re what it means for a right to be clearly established. Of course that is particularly problematic re police misconduct, since those cases my their nature are so fact-specific.

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.

Qualified Immunity has significantly gutted §1983's previously open field to the point where it's functionally worthless.

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.

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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