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naraburns  nihil supernum  1yr ago (text post)   32440 thread views

Culture War Roundup for the week of February 13, 2023

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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 of Seattle has settled a lawsuit that took aim at officials’ handling of the three-week Capitol Hill Organized Protests and further ensnared the former mayor and police chief, among others, in a scandal over thousands of deleted text messages. The Seattle City Attorney’s Office filed notice of a settlement Wednesday in U.S. District Court, just three weeks after a federal judge levied severe legal sanctions against the city for deleting texts between high-ranking officials during the protests and zone that sprung up around them, known as CHOP.

[...]

Attorneys for the more than a dozen businesses that sued the city, led by Seattle developer Hunters Capital, sent a series of letters to the city in July 2020 — after another lawsuit over the violent police response to the protests — demanding that any evidence pertaining to the city’s alleged support and encouragement of the zone’s creation be retained, according to the court docket and pleadings.

U.S. District Judge Thomas Zilly concluded last month that officials ignored the notifications, sending the so-called Hunters Capital lawsuit to trial on two of five claims and dismissing three others. In doing so, Zilly issued a blistering order that leveled crippling sanctions against the city for the deletion of tens of thousands of text messages from city phones sent between former Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other ranking city officials during the protests.

The judge found significant evidence that the destruction of CHOP evidence was intentional and that officials tried for months to hide the text deletions from opposing attorneys.

U.S. District Judge Thomas Zilly concluded last month that officials ignored the notifications

The city didn't ignore notifications, officials did.

Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other ranking city officials during the protests.

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.

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.

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?

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.

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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