The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation.
It applies to all parts of government. Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave your wine bar a bad rating? Sue the inspector personally.
The way to fix policing isn't by making the rest of government worse. Reform unions for employees of the people. Create independent civilian oversight boards with the teeth to suspend and terminate. Invest more in mental health and drug rehabilitation services. Invest in educational resources to teach communities how to deal with law enforcement.
Edit to add: People are confusing civil liability with criminal liability. If you are found guilty of a crime, then you can be sued.
> Invest in educational resources to teach communities how to deal with law enforcement.
You have this exactly backwards.
It's telling that instead of mentioning doing away with warrior training, for instance, you list things we, the people, need to do to deal with poorly trained cops with licenses to kill, which, in the case of the police, is exactly what this immunity grants.
The police need better training to handle the people they serve and protect, period. The police need to perform better psychological evaluations of prospective cops. The police need to develop better community relations with the communities they serve.
I agree with reforming the unions and installing more independent civilian oversight. I also agree that the U.S. needs major reform of metal health and drug rehab, but that particular issue is more of a left outer join with the issue being discussed; they overlap unfortunately, but the all-too-often grim outcomes of that overlap are due to the state of policing.
The police and their unions acting in bad faith, and abusing their immunity, is why we're here. WE don't need to clean up our interactions with police. It's the other way around.
Edited: typo, wording, and removed unnecessary emphasis
I agree with all of your points, except for your idea of "the people they serve and protect."
If you read about the historical origins of the US police force, their (verifiably documented) lineage goes back to the days of English colonialism. Those original patrol groups were created to "protect" the damage/loss of property- namely to prevent runaway slaves from escaping their owner's control.
The US police force has, quite literally, always been first and foremost a way for the richest upper class to protect their wealth, power, and assets. They are a way to keep the status quo. The fact that they (sometimes) help poor and working class citizens is merely a by-product of their primary goal.
I've heard this argument before and I think it's a cherry-picked factoid meant to sound scarier than it is.
From what I've read (e.g. https://plsonline.eku.edu/insidelook/history-policing-united...), the "slave patrol" thing is only part of the story. If anything, policing was developed first in the 17th century in England and the 13 colonies, and the slave patrols evolved to match the modernizing template of a police force.
If you want to lean a bit farther left, the obvious implication here is that police exist to benefit those who have power and property, projecting the former and protecting the latter; if necessary, abusing those who lack power/property in the process.
That policing ends up being "racist" then is then a natural consequence, and not at all an axiom.
Way to go turning the whole of the police force into a bunch of racist bigots. With many family members serving in both law enforcement and the military, this is one of the most offensive things I have heard in a long time. 99% of the police are some of the best people you will ever meet, and they will even serve and protect people like you who don't appreciate them and would spit on them if had the chance.
> 99% of the police are some of the best people you will ever meet
The best people I would ever meet would not protect bad cops at every opportunity. The fact that police who stand up to bad policing are consistently removed from the ranks does not lend credence to your assertion.
> The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation.
This is a general problem with the US court system. People with more resources can use it to destroy people with fewer resources, because litigation is expensive and time consuming even if you ultimately prevail.
This isn't a problem for the rich because they can survive the loss, and then the incentive to frivolously harass them isn't there when it costs you as much as it does them. It isn't a problem for government officials because of qualified immunity. It's a problem for everybody else.
Maybe we should take the exception away from government officials, to increase their incentive to solve it for everybody else.
Instead of creating yet another special case for government officials, the solution for the US problem is to go and take some ideas from Europe. In Germany, all costs associated with a lawsuit have to be paid/reimbursed by the losing party. This quickly solves the "I know I won't win, but lets ruin the other guy" problem.
Well, the German legal system is actually different in a bunch of ways:
1. They don't use precedent, judges rule based on legislation alone.
2. Germany criminal and administrative law uses an "inquisitorial" system where the judges perform fact-finding and question witnesses (in contrast to the "adversarial" system used in common law countries)
3. German lawyers have their fees set by the "RVG" (Act on the Remuneration of Lawyers) and even if the winner chose fancy lawyers that charge more than set by the RVG, the loser only pays the amount set by the RVG.
4. Contingency fees were completely banned until recently, and are very rarely used today.
5. There are no punitive damages awarded under the German legal system - only compensatory damages.
Between these factors, German trials cost a lot less - so legal fees don't ruin you financially even if you lose.
I am interested in how the no precedent thing works. Doesn't it have potential to make things widely inconsistent?
In Poland where we have similar rules in place it's just purely theoretical principle. In practice precedent is very important and learning about what other courts ruled ("orzecznictwo") is what lawyers spend their time on. It's as important if not more than the letter of the law in practice.
Source: my ex was a lawyer and we have a number of lawyer friends (judges, attorneys, corporate lawyers).
Higher courts can make fundamental decisions which are binding for other courts; however these are not precedent as they only clarify how the law is to be interpreted in general.
There are indeed inconsistencies in the decisions of the lower courts, and in some cases (like defamation suits) with no clear geographic reference this can lead to forum shopping.
Edit: An important point that I forgot to make is that in cases where a lower court might deviate from the usual legal practice, it may be required to ask a higher court to decide in the matter precisely to avoid grave inconsistencies. So case law is never completely irrelevant in Germany.
You're absolutely right! The US is pretty hard-headed on any number of subjects, reasonable or otherwise. A lot of these are great ideas.
Formalizing into law the system where a judge decides what is a reasonable amount of attorney's fees definitely sounds like an improvement! Though I can see where revamping the fundamental structure of a legal system could be challenging, time-consuming, and probably messy.
Yeah no kidding. Common law is perhaps at the heart of how rich Americans understand the state. And then the overrepresentation of lawyers in legislatures just makes this worse. Either way, this stuff is completely sacrosanct for no good reason.
This rule change makes it potentially very expensive to sue large corporations. They are already more likely to win because they can afford larger, better resourced legal teams. Now the little guy also needs to pay for that legal team when they lose? You might see most people opting not to sue Comcast, McDonalds, Amazon to avoid being financially ruined.
It’s probably just best to leave it to the discretion of the courts to decide whether one side pays the costs of the other. Better than legislating that the loser always pays.
It's not black and white. If the court takes the case in Europe, it probably has some merit. If the little guy then loses, the court will then often decide it needed to be tried and both parties will cover their own expenses.
Your right.. People generally don't sue as much here in northern europe(only know the rules are like op described in Germany, Denmark, Norway and Sweeden, might be the same for all of europe) in fear of loosing, but i for one prefer it this way, much less lawsuits flying around. And also it goes both ways, as the little guy you are also less likely to be sued.
And let's be real, how often do a normal person sue big corps like the ones you mention and actually win ?
No it's not. Both because courts don't always give you costs, and because even when they do award costs, actually collecting is tough, and finally, because courts don't always award the full amount of your costs.
"To further this goal, the losing side doesn’t usually pay the winning side's attorney's fees. In the United States, the rule (called the American Rule) is that each party pays only their own attorneys' fees, regardless of whether they win or lose."
US courts can award costs, and they do in many circumstances. But it is not automatic by any means. Even in countries where costs are awarded automatically, actually collecting on those costs is difficult - I personally know people who have successfully defended themselves and are in exactly this situation in the EU.
I have an outstanding judgment for over $100k against a home builder that my lawyer told me I have about a 1% chance of ever collecting on. This isn’t even a situation where I can file a lien; the company is out of business because of their shoddy business practices and the former owners are broke.
Meanwhile I had to pay my lawyer. I would have been better off doing nothing, and in hindsight I would not pursue the case.
This is a fairly common pattern among home builders. Start John's Construction, make some money, live the high life for a few years, homes start to show signs of issues, go bankrupt, then start Jon's Construction and begin the process over again.
That’s why I just went ahead and fixed the issues my house had — I assumed any other new home would have similar issues, and I couldn’t sell the place without remediating them anyway. I had expected to recoup at least some of the cost though.
You are over complicating the issue and misunderstanding it. Quite simply the loser of a law suit typically bears the costs of court fees and legal expenses for both parties unless a different arrangement is negotiated. How high those expenses are are irrelevant to this issue and are generally not known before or during trial.
Did your attorneys discuss fees with the opposing party prior to the suit? If not that’s why. This is common practice. It’s also why Google sent Oracle an extremely large legal bill when Oracle lost its first lawsuit over Java APIs.
> In Germany, all costs associated with a lawsuit have to be paid/reimbursed by the losing party.
> That is already how it works in US civil litigation.
An optional agreement between parties is absolutely not the same as a mandatory, by-default, loser pays system. And yes, in my case getting an agreement like that was certainly going to be impossible.
Also, re: Google and Oracle, the payment was after petitioning the judge - as often happens - and those costs were awarded because the lawsuit was particularly pointless. Yet even then they did not include millions of dollars in discovery costs, so Google got much less than 100% of their legal costs: https://www.tweaktown.com/news/25667/oracle_must_pay_google_... I do not believe you are correct in saying there was any prior agreement.
Civil suits are optional. Discussions between parties in civil suits are mostly optional. The only thing about that isn't optional are the procedures and a final ruling on the matter. In most cases of civil suits the lawyers negotiate the expenditures going in. This is why many plaintiff lawyers won't accept every case that comes their way.
Nonsensical as it might be, "costs" does not mean net expenditures, but rather costs associated with filing fees, document production, etc. The loser may well pay "costs," but attorney time, which is by far the biggest expenditure in a lawsuit, is not included.
Note that in my comment, when I said "costs" I was referring to the loose layman definition, not the legal definition. Depending on the circumstances if you are awarded anything, it could be for the costs you refer to, attorney fees, both, or some other mixture (it's particularly frequent to see judges award less than what attorneys charged on the basis that you overpaid).
And of course, nothing at all. And yes, I agree that having only some types of costs awarded and not others can easily be absurd.
Yes, but certain groups of people who's job it is to confront people in the public are the recipients of orders of magnitude more complaints than the average individual.
The legal system is unfortunately set up such that there is a significant burden (time and cost) on defendants, even when cases are brought without merit.
In that way, the legal system can be "weaponized" and public employees can be influenced to act a certain way under the threat of a sea of PERSONAL lawsuits. ...something that seldom happens to individuals.
For that reason, immunity was created. I think we'll see a very sharp increase in lawsuits as a result of this change. ...and a lot of resignations. I wouldn't be a police officer if I didn't have immunity. At the very least, I would refuse to work shifts/neighborhoods with high crime.
> People doing their jobs and receive training should be personally immune from legal liability. That liability should be held by their employer.
They aren’t, outside of government-agent immunities.
> ...which is generally how it works, though it's not as strongly codified as it is with qualified immunity
No, it is not how it works. The idnividual agent is generally personally liable, but the employer generally is often also liable for the torts of its agents under the principle of respondeat superior, or more directly if it also checks all the boxes for having committed a tort without considering that principle.
Did you even read the bill? That is exactly what it does
> INDEMNIFICATION BY PUBLIC BODY.--A judgment awarded pursuant to the New Mexico Civil Rights Act against a person acting on behalf of, under color of or within the course and scope of the authority of the public body shall be paid by the public body.
"... significant burden on [rogue govt] defendants ..."
Victims currently have little or no recourse, so govt employees can run wild. Non-govt handles this by insurance (liability, error and ommission). Govt can and should do the same.
Equal rights, or not?
Assuming these cases have no merit, most of that burden is needing to pay for legal representation and spend time dealing with it. In general we'd be better off if the justice system were reformed to reduce these damages for everyone. In the meantime, employer (government) policies can straightforwardly handle both of these, without needing to undermine the justice system by creating a privileged group of people.
Correct, and the push for accountability in police work isn't about punishing hapless officers. It's about creating some mechanism by which offenders like Chauvin can effectively be sanctioned in civil courts.
Pure nonsense. Cite these cases where software engineers have built a decades-long track record of abusing power and murdering innocents under the guise of civil service and directly abusing qualified immunity to get away with it. Or maybe tone things down.
You can't even do that for civil servants though. The actual number of "encounters gone wrong" vs total encounters is vanishingly small.
People think there is an epidemic of police murdering minorities, but in reality the number of unarmed black men killed by police is somewhere between bear attacks and babies drowning in buckets in terms of annual deaths.
That's not to downplay the horror of such killings, but to put it into perspective of the pervasiveness of the problem. The media and especially social media of turned it into a full blown public health crisis.
I think you're underestimating the problem by limiting it to unarmed black men killed by police. There's a lot that a police force can do besides killing people. There's profiling and unlawful arrests and prosecution, cruel and unusual punishments in prisons and jails, along with general harassment. You should look at the results of DOJ investigations into the Ferguson and Baltimore police departments, they are absolutely scathing. In the Baltimore police department, there were incidents in which they arrested people just hanging out on a street corner for no reason (when they told their lieutenant they didn't have a valid reason to arrest them they were told "just make something up") in front of the DOJ investigators! I'd also recommend the book "Just Mercy" for examples of the horrors of malicious prosecution. Just one egregious example from that book: a mentally disabled woman was sentenced to life in prison for the murder of her child. The problem? The woman never had a child, and was in fact infertile!
Justice isn't based on probabilities, but rather addressing every single crime. If I were to come up with a novel way of committing murder, that doesn't mean I can carry it out and expect to be ignored because such events are rare. Every time a uniform wearing criminal escapes justice due to corruption is its own injustice, regardless of how uncommon it is when compared with all police interactions.
Qualified immunity was made up by courts, their legislating from the bench should have no merit, and therefore revoking qualified immunity is the right thing to do under checks and balances.
We need a replacement, one written in legislation, that puts fixed narrow limits on how immunity applies. If you break the law - you should receive no protections. There is no excuse for enforcers of law to not know the law. This will put the liability into officers And government workers/representatives hands and force them to respect the law.
> There is no excuse for enforcers of law to not know the law.
I wonder how often cops break the law because they actually don't know, or if they do know but also know they'll get away with it.
For example, police are still trying to arrest people for recording them, despite courts repeatedly upholding that citizens have a right to record police. Do cops actually don't know citizens have the right to record them, or are they just making threats that they know won't hold up because they know they can get away with the lie?
That is how our whole system works. The first amendment for example doesn't have an explicit "yelling fire in a movie theatre" exemption, yet the courts have defined tests that determine if speech is protected.
> We need a replacement [...] If you break the law - you should receive no protections
That is exactly how it works today. Once you have been found guilty in a criminal court, you no longer have any protections against civil cases.
> That is exactly how it works today. Once you have been found guilty in a criminal court, you no longer have any protections against civil cases.
I don't think this is true?
The test is much more narrow than this. You could potentially be convicted of a crime even if you didn't have a reasonable belief that you were doing so, but qualified immunity explicitly dictates that you have to be intending to break the law or that your actions both violate a law and that there is extremely clear precedent that they do so.
That seems, unusually for civil cases, to be a much higher bar than criminal conviction requires.
Yeah but indefinitely precedent goes way beyond its intended purpose in achieving consistency. Especially when we have legislatures that rather not weigh on in issues whenever possible because they are worried about attack ads.
If I were to tweak it, I would make precedent expire, and even obligate the legislature to vote on a bill by the time it does that the courts ratify disambiguates the issue at and. Consistency and democracy.
What you are saying is factually wrong. If I can sue a mall security for something. I should be able to sue a police officer for the same. The job of the defendant doesn't change the status of the charge/request. Most public servant don't work as a spy imbedded in Russia.
It allows for harassment, though, and for folks to arrest people willy-nilly. And as the other person said, you are never really responsible for the assault or murder like you would be if you were a private person.
> “In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence,” the report said. “In effect, the same conduct can repeatedly go unpunished.”
> For example, there’s Jessop v. City of Fresno, Calif., in which a pair of businessmen alleged that police officers had stolen some $225,000 in cash and rare coins they had seized while executing search warrants. The officers were deemed entitled to qualified immunity because “at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.”
It shields them from civil liability for wrongful arrest, as the courts will apparently go "there's no established law that you can't arrest someone for no good reason on Thursday at 9:53pm on Third Street".
An indictment is not an arrest. An indictment comes from a district attorney while an arrest comes from police. The two don't even have to be associated with each other as a person can be indicted before they are arrested, or vise versa.
An indictment is a motion to proceed to trial, and often doesn't even require the availability or presence of the person. An arrest is a detention of a person to police custody.
Even more to the point is that there is a readily identifiable problem. It is better to put energy towards fixing the problem than apply a really shit work around with horrible second and third order sequences only for the point of doing what you couldn't do the correct way.
> In order for police to detain people they need to place them under arrest
That is not true. Police can detain you for some period of time without placing you under arrest. You can be detained for “reasonable suspicion” that you were involved in a crime. There are naturally a lot of arguments about what qualifies as reasonable suspicion.
This is why every “know your rights” organization instructs people to ask, “am I being detained? am I free to leave?” when trying to determine their status or end a police encounter. The link below is just one example.
> That is not true. Police can detain you for some period of time without placing you under arrest.
That is a 4th amendment violation. You are free to leave police presence at any time up until they place you under arrest. If you are detained without arrest the remedy is to ask to be arrested. At that point police must arrest you or release you, because any evidence or detention after that point is invalid and invalidate such in the future for the related matter.
Of course an even better answer is to just ask for an attorney, but either way the result is the same.
There are a number of reasons they can detain you without arresting you. For example, you can be detained because you refused to let the police search your car for drugs and they make you wait while they get a warrant. Similar situations can happen in residences, and a traffic ticket is detaining without arrest.
Asking for arrest will not help your case, nor will asking for a lawyer.
You can be hauled to jail without charges as well, since most places have a grace period before they file the charges.
> For example, you can be detained because you refused to let the police search your car for drugs and they make you wait while they get a warrant.
That is not a lawful detainment. Out convenience for both parties police can ask a suspect to wait until a warrant arrives so that the police don't have to arrest them. In other words you can offer to leave, but they are going to arrest you anyways otherwise the detainment is completely voluntary.
The most important word in that entire Wikipedia article is brief. The stop requires probably cause and must not exceed the minimum time necessary to inform dispatch, issue a citation, and perform a basic warrant search on their computer. Signing a citation provides a written promise to appear in court so that police do not have to arrest you and is not an admission of guilt. Refusal to sign is grounds for arrest. Either way police cannot reasonably communicate to you from another moving vehicle, which is the primary basis of such a stop, not a detainment pending other inquiries.
Police absolutely do not have to read your Miranda rights in order to arrest you -- they only need to read your rights if they plan to question you with regards to a criminal investigation and they would like to use your statements as evidence in a court of law.
> Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave your wine bar a bad rating? Sue the inspector personally.
That’s exactly the way it should work! If an animal control guy has it in for you and writes you off-leash citations every week while you’re in your own back yard, if the health inspector says he won’t permit black people to stay in business, then you absolutely should be protected by the law. Anything else is plain classism: an implicit assumption that members of a certain class are always in the right, and a requirement to deal with conflict with them not from a position of equal power and rights, but only by hoping to convince them to have mercy.
Certainly getting sued over every little thing would be impracticable, too. But that’s also true for citizens. If the laws that protect us aren’t good enough, then the solution is better laws, not to exempt some classes from the law!
It's undemocratic, because unless all lawyers are great and free for all, this path is a matter of money. Now, you may have bought into the libertarian marketing of freedom without democracy, after all so many Americans have, but there are extremely good reasons for why this is problematic, which are actually not that difficult to cobble together with some spare time.
Pay (a lawyer) to play is a heck of a lot more democratic than the current system where if you're given crap service at the discretion of the government (as opposed to the bureaucrats doing their job wrong) you need to find a string you can pull to go over the head of whatever bureaucrat screwed you. Money for a lawyer isn't perfect but it is far more accessible to a far broader cross section of the population than the connections required to go around a bureaucrat who has screwed you at their discretion. Furthermore, organizations that screw a lot of people tend to circle the wagons so if you're screwed by the cops knowing a guy who golfs with the chief might not help you, you need to know a guy who golfs with the guy the chief reports to (ditto for the planning department or whatever).
You're probably posting under a throwaway for a reason, but let me just say that none of what you say is in favor of your solution: improving the quality of the democracy you live in would be. Money by definition is not far more accessible to a far broader cross section of the population, your vote is. The problem with requiring connections to go around a bureaucrat who has screwed you at their discretion is that your version of democracy is flawed, you must move it away from that clientellist mode towards something where your vote and procedures are effective.
Thank you for weighing in, genuinely. I could have misread tone, I’m sorry to brnt if I did. I perceived it as uncivil because it seemed to veer into identity politics, and to belittle my opinions as “not that difficult” to see the error in.
I know critiques of political movements are painted as identity politics, but the opposite is true. Being able to discuss the merits of something like the precise role of the courts should be possible amongst people that abhor the politics of politics.
I was not aware I was uncivil, certainly didn't mean to.
Your comment does not address the basic problem with a legislative implementation of freedom: it is undemocratic because the power to fight legal battles will always be constrained by money, therefore giving more weight to those that have more. That makes the legislative or libertarian version of freedom undemocratic. If that interests you, basically any critique of libertarianism will cover it. (Where it gets really interesting is where funding for its promotion come from!)
Better laws can be achieved by a democratic process also: you simply vote for candidates that advocate your view. This is democratic because everyone gets the same weight.
Naturally, if you have the means, that may seem inefficient, but then that was never the point of democracy, and as far as I am concerned, must never be the point of freedom either.
> Your comment does not address the basic problem with a legislative implementation of freedom: it is undemocratic because the power to fight legal battles will always be constrained by money, therefore giving more weight to those that have more.
Yes, my comment did not address the US legal system’s wealth bias, except to say that if it needs solving then all citizens should benefit from the solution, not just one class. So I’m not sure why you’re painting me as having one view or another on the solution. What I attacked was different laws for different people. Am I to understand that you believe legal classes are necessary to solve wealth bias? Could you explain the link to me?
> the power to fight legal battles will always be constrained by money
In the US, under our current system. It’s not a result of democracy, it’s a result of a largely privatized legal system.
Also, what exactly are you arguing here? That the power to fight legal battles is bad?
> That makes the legislative or libertarian version of freedom undemocratic.
Dictatorship is undemocratic. Biased legal systems are flawed, maybe unfair, not undemocratic.
Again, I fail to see what this has to do with qualified immunity, or how qualified immunity is more democratic.
> Naturally, if you have the means, that may seem inefficient, but then that was never the point of democracy, and as far as I am concerned, must never be the point of freedom either.
Nowhere did I bring up different laws for difference classes. What I was addressing was that the courts are perhaps not the way one should be supposed to handle the liability of persons in the government. How it should work is that we make and hold elected officials accountable through a functioning democratic process.
Biased legal systems are biased towards the affluent. That is an uncontested tell for problematic democratic legitimacy. Because it's difficult to remove that bias entirely, qualified immunity is a tool to defend from wealthy parties.
I made the link to libertarianism because this is a stated goal in most of their thinking: courts over democracy, and it's up to you to be able to afford it. Affiliated think tanks are quite lucid as to why : precisely because it stacks the system in favor of the affluent. And that is thus precisely why I'm against any move in the direction of a litigious society, even though I can imagine and recall cases where I'd certainly like to.
Other countries don't have a problem with officials getting sued. In the UK there doesn't even seem to be a problem with employees getting sued; cases always seem to end up being against the employer. So why does only the US need "qualified immunity"? (That's a real question, not a rhetorical one.)
You always sue the people with money. In the US the employer is always the one sued by default. Individuals only really get sued when the individual's actions are so squarely of their own doing that the employer can't possibly be held responsible.
If a truck driver enraged about his wife's infidelity decides to drive his truck through the motel his wife is cheating in you don't sue the trucking company (well you probably do, but they lawyer up and their lawyers spell out why it's not worth your time), you sue the driver.
The problem is that this pattern of action falls apart for agents the government because of qualified immunity. If a cop does something bad and the government says "hey, it ain't on us, we told him not to do that, heck, we even trained him to avoid getting into those situations" the plaintiff is out of luck (except for the existing narrow exception to qualified immunity). Getting rid of qualified immunity would put government employees in the same situation literally every other employee is in.
Sweden basically has qualified immunity for all employees (our law is a bit different but offers almost as strong protections). So, no, I do not think the US is the only country which needs qualified immunity.
Well in the US. That's only for public official, not for your average Joe. So if you are a security you can be sued. And actually the two security guard that didn't help the older asian lady were fired(in NY). For doing nothing. Meanwhile a cop could not be sued for the same thing...
> The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation.
> It applies to all parts of government. Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave your wine bar a bad rating? Sue the inspector personally.
In Germany, police officers (and other government officials) only have personal liability if they intentionally act against the law or are grossly negligent in following their duties. The scenarios you describe would lead to all these lawsuits being thrown out in court as frivolous.
The correct way to appeal against executive decisions (the denial of building permit, the citation for your unleashed poodle or the bad health rating for the bar) is to file a suit at an administrative court ("Verwaltungsgericht"). Plead your case there and the court can override the executive decision.
The problem is that then when a police officer breaks the law and harms you, and you later sue them, the taxpayers end up paying the settlement due to the fact that you have to sue the whole department rather than the criminal themselves. There are no consequences, criminal or civil, for the person who actually broke the law.
New York City taxpayers pay $300M a year or so (IIRC) paying out civil judgements against the exceptionally violent NYPD.
How is that a problem? It was after all the tax payers who voted for politicians who are in favor of violent policing.
I feel the issue here is that the courts are corrupt and do not convict police for their crimes. Not that you cannot sue employees. I feel fixing a broken criminal justice system with civil lawsuits only creates more issues than it solves.
> A court in 2009 convicted Washington DC police officer Michael Sugg-Edwards of sexually assaulting a teenage woman in his squad car. After conducting its own internal investigation, the department quickly fired the then 35-year-old officer.
> But, six years later, Sugg-Edwards was back on the force. A provision in the police union’s contract allowed him to appeal against the decision to a union-selected arbitrator who reversed the department’s firing and reinstated him – with back pay.
> In San Antonio, an officer fired twice for challenging handcuffed suspects to fight him for their freedom was reinstated by an arbitrator both times. A second San Antonio officer who engaged in unauthorized car chases was also reinstated twice. In Columbus and Oklahoma, officers who kicked men in the head were rehired.
To be clear: qualified immunity is about civil liability. It doesn’t protect from criminal liability. Qualified immunity isn’t the reason cops don’t go to jail for murder, because it doesn’t apply at all for criminal procedures
I don't know. There is a long history of cops being "prosecuted" in court theater and being found not guilty. This is generally only in high-profile cases. It is still fairly common to simply suspend an officer or "fire" them, allowing them to get a job in another department. So common that when we investigate folks in the high-profile cases, a history of misconduct isn't a surprise.
Qualified immunity isn't a get-out-of-jail-free card. It is released, for example, when a government official breaks clearly established law. (Counterfactual: the courts have been very narrow in interpreting what "clearly established" means.)
To expand on just how absurdly narrow courts interpret "clearly established", there's this example from the wikipedia page on qualified immunity for eg.
> Critics have cited examples such as a November 2019 ruling by the United States Court of Appeals for the Sixth Circuit, which found that an earlier court case ruling it unconstitutional for police to sic dogs on suspects who have surrendered by lying on the ground did not apply under the "clearly established" rule to a case in which Tennessee police allowed their police dog to bite a surrendered suspect because the suspect had surrendered not by lying down but by sitting on the ground and raising his hands.
The net effect of this appears to basically be that it's impossible to prove literally anything pierces qualified immunity unless it was ruled on prior to the establishment of qualified immunity as a defense. How exactly can you create precedent when you require nearly identical precedent to set it? It's a blatant catch-22. Like, literally something that could have been in the book Catch 22.
> Qualified immunity isn’t a get-out-of-jail-free card.
No, its a get-out-of-civil-liability-free card.
> It is released, for example, when a government official breaks clearly established law.
No, its not. As well as meeting the extremely narrow standard established for violating “clearly established law” and act must also fail to meet the extremely broad standard established for being an “objectively reasonable action”; otherwise, even if it violates a clearly established legal right, it remains protected by QI.
While some protection loosely similar to QI may make sense, the actual rules around QI, both at the high level and in the details of how the high-level rules are applied, are particularly bad, especially, in practice, in the case of law enforcement officials, who practice within the law enforcement community puts at greatly reduced likelihood of being held criminally accountable for violations of rights than non-law-enforcement government agents.
You seem to have confused a true statement (qualified immunity is about torts, not crimes) with a false one (if there was a crime, then there can't be any qualified immunity claim in a corresponding civil case).
You say "sue the inspector" like it's obviously a bad thing. If the inspector used their special government appointed powers to intentionally or negligently screw you over, they should be sued. Prohibiting individuals from being sued created two perverse incentives:
1. It emboldens those who do harm and allows that kind of behavior to become systemic (as it has in police culture)
2. It removes an incentive to improve our court systems and legal processes, because those closest to those legal systems have generally been immune.
> If you are found guilty of a crime, then you can be sued.
?? Generally, people want justice to be served. If a police officer had already been found guilty, they've already been given a sentence. That rarely happens because police departments and their unions stonewall efforts to determine truth and charge appropriately.
And then they will need to buy private liability insurance, and bad cops will get their rates hiked until they can't afford to keep being cops, instead of just getting transferred to a new district to offend again.
makes a lot of sense to me. if you sue someone for "bad ratings" as you mentioned, you likely have no case and incur court expanses, including penalty for wasting time... but at least you have that option for when you really have a case.
Isn't qualified immunity applies only to police?
If not, then the solution should be to end qualified immunity for police only.
There is a difference between health department inspector and police officer, no reason to apply the same standards in both cases.
> the solution should be to end qualified immunity for police only. There is a difference between health department inspector and police officer, no reason to apply the same standards in both cases.
That makes no sense. A government official performing a government job because they are required to by the government should not then be ordered by the government's court system to pay restitution for damages caused by the government's ordered action.
Beyond the principle of the matter, the pragmatic reality is that no sane person would ever work in law enforcement if their kid's college fund is subject to being raided for doing their jobs.
> government official performing a government job because they are required to by the government should not then be ordered by the government's court system to pay restitution for damages caused by the government's ordered action
There is a lot of grey area in qualified immunity. Government officials actions are protected so long as they are legal. If someone knowingly orders an illegal action, qualified immunity no longer applies. If someone knowingly follows an illegal order, they too may bear burden. (If they unknowingly follow an illegal order, we enter the greyer shades of grey.)
> There is a lot of grey area in qualified immunity
Nope, not really.
> Government actions are protected so long as they are legal. If someone orders an illegal action, they are no longer protected by being government agents because they weren't lawfully acting in their capacities as one
This is not correct. It is not enough for there to be "an illegal action," the action has to have been in violation of clearly established law.
Please stop spreading misinformation in this thread. Having strong feelings on a legal topic does not make you a lawyer.
> There is a lot of grey area in qualified immunity.
> Government actions are protected so long as they are legal.
Generally, actions which are legal are not subject to legal liability, you don’t need immunity when your action isn’t illegal.
Illegal government actions are often protected by governmental immunities, but that’s not the issue here.
Illegal individual actions by government agents related to their job duties may be covered by either absolute or qualified immunity, based on the rules applicable to each type of immunity.
> If someone orders an illegal action, they are no longer protected by being government agents because they weren’t lawfully acting in their capacities as one.
No, such an order could easily be covered by either absolute or qualified immunity. For instance, an illegal Presidential order is within the coverage of the President's absolute immunity. An order from an official not covered by or doing the kinds of duties subject to absolute immunity, which despite being illegal is not of a kind which a closely similar fact pattern has been definitively found to be illegal in the past, would fall within qualified immunity, generally.
> If someone knowingly follows an illegal order, they too bear the burden.
If they know or had constructive notice through an applicable ruling that the order was illegal, sure, provided absolute immunity doesn’t apply (note that “knowingly followed an illegal order” can mean “knowingly followed an order, which order factually was illegal whether or not that was known”.)
Legally, given the facts and circumstances, mostly agreed. (Though, hell, I think even Kagan and Scalia were complaining a few years ago about the circuits splitting on these questions.)
Practically, I still argue it is. I'm not going out on a limb in saying that most people, cops or not, don't have a running list of unlawful behaviors for which there is clear judicial precedent. Which means when they commit an act, there is ambiguity--reasonable ambiguity, given we're consulting a litany versus heuristic--with respect to its legality. On a legal level, this is true of any action. On a practical level, it's not. (And the argument against limitedly abolishing qualified immunity largely revolves around it not being.)
I've watched two law firms evaluating a specific case with respect to a hypothetical amendment to qualified immunity statute come to wildly different conclusions about how it would be interpreted by the courts. That is practically grey area, even if legally it's operating on a hard-bound checklist. (New York State law is also a mess in this particular respect.)
Colloquially, if given a set of facts and circumstances it cannot confidently predict how the courts would rule, where questions must be answered about extraordinary circumstances and whether this unlawful action was sufficiently close to that case, the law can be said to be ambiguous and grey.
(Note: not sure why you're being downvoted. It's a good comment. To a striking degree, it illustrates the root of this issue, politically--the spirit of the law deviates wildly from its practice.)
The government is not requiring cops to send innocent people to jail, kill extrajudicially, or otherwise ruin peoples’ lives simply because they felt like it. In fact, that’s the exact opposite of justice, which is actually their mandate.
> There’s no rational distinction between [police officers and health inspectors]
One has leeway to kill innocent people outside of the court system based on subjective characteristics (“I was scared”) with little consequence, the other checks a court-approved checklist and passes or fails based on an objective criteria.
> No same person would ever work in law enforcement if their kid’s college fund is subject to being raised because they did their jobs
Again, it is antithetical to their job to carry out injustice, and when people mess up their job bad enough, such a killing or framing an innocent person (intentionally or not), there should be consequences. Similar to how bad surgeons who have a clear pattern of killing their patients (intentionally or not) are taken out of operating rooms and medicinal license potentially revoked, or the corrupt lawyer who colludes with the other side in return for kickbacks is disbarred.
Unlike the overworked DMV employee who didn’t properly register someone in the system and wasted most of their day, when an overworked cop messes up, someone just lost a whole more time they’ll never get back — potentially a life’s worth.
> Again, it is antithetical to their job to carry out injustice, and when people mess up their job bad enough, such a killing or framing an innocent person (intentionally or not), there should be consequences.
You can't talk about justice in one breath and vengeance against the fall guy in the next. If a police officer unintentionally kills an innocent person because they were, e.g., ordered to perform an armed no-knock raid in the middle of the night in a state where 42.4% of the population owns firearms, it is the local government -- not the individual police officer -- who killed that innocent person.
That’s not the type of scenario that people have in mind when they’re talking about the systemic failure of qualified immunity — in a functional court system, such a case would shake out naturally (either a non-punishable offense or involuntary manslaughter, depending on context, as after all, an innocent person was killed), while still allowing crimes such as manufacturing evidence or reckless negligence or murder to
As it is, a citizen cannot normally charge a cop with a crime, so all legal recourse against the police must go through a civil court in practice, where the doctrine of qualified immunity acts as a shield
If gun possession is legal, then it should not be ok to kill an innocent person just because they possess a gun.
Yes state is guilty too. But, seriously, you accept that death of innocent person in a raid is normal result of normal police behavior? Even if there is reason for no-knock raid, cops dont have to kill everything that moves.
It is a normal result to fear for your life when armed men storm your residence in the middle of the night.
If you are armed, it is a normal result to protect your home with force from such an invasion.
If the arrestee responds with armed force, it is a normal result that the police will do so as well.
If they do, it is certainly a foreseeable result that someone will end up dead.
By ordering a no-knock raid in the middle of the night, the mayor and police chief set up a situation where the arrestee's right of self-defense and the police officers' rights of self-defense are on a collision course.
For what it's worth, while New Mexico's law covers all governmental bodies, Colorado passed a law last June that only banned qualified immunity for law enforcement . The city of New York also recently did so for NYPD officers .
If true that’s more to the point. The deal is that you work for the police, govt gives you some discretion and power to act on their behalf.
If I don’t get any protection for that, why would I err on the side of intervening in ambiguous situations.
I’d even argue that it’s normal to expect some mistakes, and in general QI should be protected for this reason.
Govt should realize police are only real thing they have to enforce those reams of legalese (not taking about other things like fines). Meaning if they want to stop you RIGHT NOW, they going to have to use a cop. Govt shooting themselves in the foot by neutering their legitimacy to enforce what they say we have to do
In Sweden all employees have these protections and I feel our system works mostly fine. The employer is by default on the hook for all damages caused by employees. There are of course some exceptions like gross negligence, but in general all employees have qualified immunity here.
Thanks, I didn’t know it only applied to civil charges. “ civil suits are the only means by which individuals or their families can get compensation for the violation of their constitutional or civil rights. And, in practice, civil lawsuits are often the only means to seek justice at all because prosecutors—themselves government workers—are typically reluctant to bring criminal charges against their government colleagues, especially police officers who are crucial to the work prosecutors do on a daily basis.”
I understand the arguments that "QI has reasonable goals in theory", but it is time to throw the baby out with the bathwater. If cops didn't want to lose QI, they should have held themselves to account for the last few decades. Maybe the unions should have spoken up when cops steal tens of thousands of dollars in cash from a suspect, and get away with it due to QI.
San Antonio, TX will be voting in May on whether to disband the police union. "Back the Blue" types are saying it's Defund in disguise, that we won't be able to find good cops, and so on.
Except several large cities in Texas don't have unionized police, and they do alright. Furthermore, the cops in San Antonio can commit really awful crimes, and still have months- or years-long appeals.
Being a cop isn't a right, it is a privilege and a critical duty. It should be easy to fire bad cops. SAPD, if you didn't want your union to be busted, maybe you should have held yourselves to a higher standard.
I agree that police unions can be problematic when it comes to disciplining bad cops.
But don't blame them for something which is unrelated to the union itself.
There are cities where Derek Chauvin would have been on paid leave for weeks after killing george floyd.
Yes, and the police forces in those cities would all be unionized. Clearly, the issue is not the union; it is the city or county that negotiated poorly with the union. Though generally, in some states like the US Deep South, politicians are more than happy to give officers unlimited rights even without the unions requesting them.
Minneapolis had the right to fire his ass when they saw how bad a cop he was.
They fired him literally the next day. For prior incidents, none of them rose to the level justifying termination. That would have been true even in a non-union force.
NYC has two police "unions" which openly and loudly protest against police reform, defend officers who commit civil rights abuses, and are really more like PR and lobbying organizations than good-faith collective bargaining apparatus for organized labor.
First result on google for civil forfeiture. Followed up by searching for [law enforcement agency] and union returns zero results for the worst locations.
Police officers are unionized pretty much everywhere. Sheriffs, which carry out the most egregious civil asset forfeitures (usually in small travel-through towns), generally are not unionized outside of the big counties and states.
From the outside, the US has big issues with race, poverty, mental health and access to firearms. That makes policing very difficult and pushes towards a "shoot first" approach.
But since the US refuses to address any of the issues, it's stuck trying to fix the problem without being able to fix the problem.
What concerns me most (and I see it here in the UK too) isn't these issues themselves, it is the inability of people (media, politicians and everyday citizens) to have an adult conversation about any of it. If the US collectively said "we accept these events as a downside of our way of life" I might not agree but I'd understand. Instead people act like they're surprised or pretend they can be fixed by tinkering around the edges. It seems quite dishonest...
> But since the US refuses to address any of the issues, it's stuck trying to fix the problem without being able to fix the problem.
That's a bit unfair I think. We have a lot of things to improve, but we absolutely are trying to change things all over the country.
Volunteer programs for under-privileged kids on the east side of my town make sure kids have food during the day and a positive adult role model to spend time with them after school for a few hours a week. That's a slow burn kind of investment that affects poverty, racial inequalities (and kinds of intolerance), mental health, violence, and all sort of other stuff. I haven't performed a trial or a study, so I don't have any sort of peer reviewed journal to link you to. But it's happening.
Apparently the mechanisms to address mental health were largely disbanded in the 80s. Oddly this is when many financial oversights and regulations were also undone. It’s like Not A gets established, the ramifications are obviously bad, but A is never re-established.
> Everyone who loves guns and everyone who is anti mass-shooting should like that, and that's a lot of voters...
Those are largely the voters who voted in the President (Reagan) who dismantled our large parts of our mental health infrastructure in the 80s, and who since have voted in Presidents that have attempted to make our healthcare system more adversarial towards patients. They are (now) a distinct minority of voters, but unfortunately we do not live in a very representative republic.
Since it's a USA-specific term and not very self-explanatory (I thought this was a COVID-related thing because it contains 'immunity', but it's not):
> In the United States, qualified immunity is a legal principle that grants government officials performing discretionary functions immunity from civil suits unless the plaintiff shows that the official violated "clearly established statutory or constitutional rights of which a reasonable person would have known".
The existence of one problem doesn't preclude the existence of others. Both are problematic. The law being used to sue police officers - the Ku Klux Klan Act - came into being because the Federal Congress recognized that in certain states of the Union, police officers (and other public officers) were taking actions against the public that would never be prosecuted as crimes in those states, yet were egregious and in want of a remedy. The situation is not so different today.
"Cops violate citizens rights, but if we stop them their feelings might get hurt and then they might willfully stop doing their jobs, can't you see that cops are the good guys" isn't exactly the slam dunk defense you think it is.
Neither is a blanket statement like "cops violate citizen rights". The way to fix these issues is not to make it so the good ones are scared of helping people due to possible litigation. That's just silly.
It's already a job very few people want to do and you're making it even less desirable.
This is a good way to ensure you only get shitty cops.
Are police in other countries without qualified immunity more or less likely to be sued? Your argument ignores the rather important consideration of civil litigation frequency, which is a question of torts not policing.
If you find a single instance of a nation where the police functions well without qualified immunity, you can at least conclude that it's not a necessary condition for police to be able to operate well.
Sure, in a different context it may be a necessary condition, if you consider all other variables immutable. But there's no need to do that. Many variables can be changed, including the legal system.
I think if you observe that your legal system is so janky that you can only have a functioning police force by making police officers selectively immune to the law, your response should be to not accept such a kludge and insist on actually reforming your legal system.
The mechanism is increased legal liability. That is, both the fear and effects off law suits.
Presumably, law suits would have to rise, especially at first, for this to work because I’m pretty sure the fear of increased legal liability alone will not change police behavior significantly. They will need to feel the teeth of this.
the cops who worry about this are the ones we don't want to be cops. Its like my male friends who complained about the MeToo movement "how will i date when i have to worry about consent" - uh shouldn't you already be confident theres consent before doing anything? lol
The fact that you have multiple men in your life saying this might be an indication of some of the difficulties men face. I'm making an assumption here that you chose good men to be your friends. Either you're picking sex offenders as friends or men have a difficult situation to navigate when dating?
Women are all different. Some women love the idea of men asking for consent, others would find this a huge turnoff. Not all women do non-verbal consent in the same ways. To make it harder, men are expected to be the one making the moves and taking the lead.
I just made a quick Google search -  contains a link to a Reddit post from ~2 years ago. This man keeps getting told "it's not sexy to ask". Some women responding love the idea, others say they would hate it. Ever since #metoo I've made sure to very careful about consent, I even get verbal consent, and I know it's turned some dating partners away. So until women make dating clearer for men maybe you should hold back some of your judgement.
P.S. I'm 35 and have an above average partner count despite actively not sleeping around. I'm not some bumbling awkward guy that's never dated women.
I think their is also a disconnect between how it actually functions in the world and what is discussed on places like Twitter which then get turned into clickbaity articles which that friend might see. He might not have actually encountered it in real life.
Not true. Anyone who joins a job like that is going to want strong protections whether they use them or not. Why would I work for department X where if I make a mistake I can be ruined when department Y will trust that by going thru the process to become LE, in general I’m not looking to be a corrupt maniac. Not to mention those same depts will let me keep an AR in my trunk, send an MRAP to cover me when I am going into a sketchy situations
Similarly, why would I join a dept with a weak union when I can be in one where I’m backed by a union that for better or worse will assume innocent until proven guilty and protect the paying members.
> Anyone who joins a job like that is going to want strong protections whether they use them or not.
Then it’s not surprising if you get a bunch of bullies drunk on power with guns. They need to be accountable because they can ruin people’s lives or end them altogether, and regularly do.
> going thru the process to become LE, in general I’m not looking to be a corrupt maniac.
Then the process needs improvements. It looks like there are way too many corrupt maniacs getting through.
> Similarly, why would I join a dept with a weak union when I can be in one where I’m backed by a union that for better or worse will assume innocent until proven guilty and protect the paying members.
Innocent until proven guilty is for plebs. The problem is when they are shielded from even getting prosecuted. This is no justice.
From the society’s point of view some degree of protection of law enforcement is useful, because it helps them do their job in difficult situations. However, the rest of us need to trust law enforcement, otherwise the social contract breaks down. This means we need to trust that they get punished when they kill people they should not or when they bully and harass people for the lulz. Otherwise, what’s the incentive for them to behave?
According to psychologists, there is a personality trait called neuroticism. Neurotic people worry about everything. They worry about getting sued. But they also worry about whether they look fat in these clothes, whether they will forget their uncles birthday, 5g radiation, microplastic partles in the air and whether the guy on the ground is dying or not.
What I'm hinting at is that a neurotic police force would be less likely to harm people. But also take less action in general, solve less crime.
> cops will be less inclined to show up to a call or do anything to fight crime, because it could bring too much legal responsibility
Police report to elected governments. They are checked the same way the rest of the state is: through elections.
Police pay is high across America because they're widely seen as bringing value to the community. Their strikes are feared by politicians; the cops turning on the mayor signals instant political death in most cities. If that perception of police frays, their leverage disappears.
More pointedly, if a civil servant decides it's too much legal responsibility to not break the law, they should find another line of work.
I am not sure you are familiar with usual clientele of law enforcement officer, but usual day-to-day interactions are not nice.
You will have to use violence, because nice obedient people don’t cause trouble. People that cops are called on will likely fight and resist and you will have a high chance of breaking someone’s bones (or kill someone).
So, a rational cop can just avoid risky situations by doing absolute minimum and not showing up or not engaging.
Drug addict trashes a store that didn’t accept his fake dollar bill? Whatever, just yell “sir please stop” from distance and leave.
This describes a lot of jobs. Statistically, police work is less fatal than roofing, truck driving, garbage collecting and farming . With respect to dealing with non-dangerous people who simply aren't nice, talk to a server or bartender or anyone who works in retail.
> will likely fight and resist
A small fraction (about one in eight) resist arrest . Most of this is due to police having been thanklessly given, fairly recently, the job of dealing with our mentally ill .
> can just avoid risky situations by doing absolute minimum and not showing up or not engaging
Again, this describes a lot of jobs. If a department is staffed by people who won't work unless they feel free to break the law, it's crying out for overhaul.
We've given police tremendous pay, perks and employment protections. If it turns out a good fraction of a department's staff are too lethargic or terrified to do their jobs (for which we have zero evidence), they were improperly staffed.
> You will have to use violence, because nice obedient people don’t cause trouble. People that cops are called on will likely fight and resist and you will have a high chance of breaking someone’s bones (or kill someone).
Just checking are you aware that this isn't how it is in most other countries?
The people in similar countries manage to get by with a whole lot less violence just fine.
"As of 2018, the average U.S. household income was $87,864, while the median household income was $61,937.
When the median is considerably lower than the average, it means that there are outliers on the top end. In short, a few people who make a lot of money boost the average. So $61,937 may be a more accurate representation of typical household earnings."
Have you considered maybe teachers are poorly paid, rather than police are highly paid?
> Cops aren't even in the top 20 most dangerous job in America
Did I say they were? Did I say they should be paid based on danger? So why do you think this is relevant?
> national average: $67,600 .. median household income was $61,937
All your numbers say they earn roughly a basic middle income for their locations. That's not 'highly paid'.
> cops should be paid somewhere around what a security guard at a bank is paid
Why would anyone take the job of being the officer over being the security guard in that case? Why take on the additional duties and responsibilities, the being in hazardous environments like messy crime scenes, and why take on the intellectual work of detection?
I don't get why any member of society would argue for another memory of society to get less money for their job.
‘What we need is lower wages for the working class!’
> But cost of healthcare is astronomical in part because malpractice insurance is expensive, because too many people abuse it.
You pulled the “trigger a European” card.
This is not why the US healthcare is astronomically high. The reason is: practically no meaningful regulation and thus free roaming oligopolies of a few providers with insane billing practices (which hospitals are covered, etc.). And much more...
Why would that be? In countries with universal health care (which would be pretty high up on the regulation scale) costs for medical procedures are significantly lower. 
Americans have to understand that they are drastically overpaying for almost everything medical including drugs. There is no way around it.
The issue isn't QI in and of itself -- as others have said, it serves a useful purpose in protecting the personal liability of government agents acting out their official duties, which can be reasonable (one example was that a planning board member shouldn't face personal liability for denying a proposal). In my mind, there are two issues (one direct, one indirect) with QI and policing specifically:
- QI has been defined as so broadly covering the police that any situation that hasn't explicitly already been defined as an overreach or overreaction will be considered as covered by QI, so officers face little to no personal accountability.
- Police and civilian oversight boards are largely ineffective at doling out substantial punishments, so officers face little to no professional accountability. Such oversight is typically fought, and fought hard, by police unions.
As a result of this, police officers face little pushback for misbehavior, or even patterns of misbehavior. Court decisions narrowing the scope of QI as it applies to police officers (eg: any behavior by a police officer that's not "by the book" would not be considered eligible for QI) would go a long way towards providing accountability.
I thought that because QI was defended by the SCOTUS, that even if a state doesn't have QI at all, a police officer or department sued for malpractice could still appeal to the SCOTUS and then eventually win?
It's more complicated at the federal level, but in this case the bill abolishes qualified immunity when suing New Mexico officials in New Mexico courts for violations of New Mexico law. Presumably New Mexico courts adopted the federal concept of qualified immunity at some point. See https://www.nmlegis.gov/Sessions/21%20Regular/bills/house/HB...
You usually sue state officials under Federal law when a state doesn't permit residents to sue them atall, or if the claims, defenses, or remedies are too strict. A Civil War Reconstruction-era Federal statue, the Ku Klux Klan Act (https://en.wikipedia.org/wiki/Ku_Klux_Klan_Act), enacted under the newly granted powers of the 14th Amendment, permitted people to sue state officials whence previously they were barred by state sovereign immunity. The act was rarely used for the first 80 or so years; why I don't know. Qualified immunity is something SCOTUS cooked up after a rapid increase in such law suits caused some judicial anxiety about the potential chilling effect of supposedly frivolous law suits. To be fair, this was at a time when a rather liberal Supreme Court was effectively inventing new rights, like so-called Miranda rights, right to appointed counsel when indigent, etc, the scope of which were then unclear.
I think they make sense, but they're definitely not explicitly or even implicitly granted in the U.S. constitution, and the various legal theories (e.g. substantive due process) behind the court's power to recognize them are still vilified by conservative jurists and pundits.
Miranda Rights had historical precedence in England, but IIRC mostly after America forked.
The right to counsel mentioned in the U.S. Bill of Rights only meant you had a right to be represented by your own attorney, presuming you had the means, not that the state or court had to provide one.
Many Miranda rights are _expressly_ granted by the Constitution. For example, the right to remain silent is clearly delineated in the Fifth Amendment , without the need for substantive due process.
To the point you mentioned, from the Sixth Amendement: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." You can argue over how that counsel should be appointed, but I would categorically disagree with the interpretation that it only refers to you hiring your own attorney.
 "nor shall be compelled in any criminal case to be a witness against himself"
I think he meant to say that the constitution doesn't say anything about having a right to be notified about those rights when you are arrested. What could be understood to be "Miranda" rights have a very clear constitutional basis and were not established by the supreme Court, as you said... but I think the term refers more to the Miranda warning that the police has to give to suspects in custody.
Isn't it more accurately called 'Miranda warning'? The point is, there are no new rights being granted, the notification is merely informing someone of their existing rights. The fifth amendment was ratified back in 1791.
Lower federal courts have no say. It's a state matter up to the supreme court of NM, and then maybe SCOTUS.
But also regardless, QI is an extension of sovereign immunity. Therefore, the legislature is free to waive it by statue. That's what NM has done. It's not saying QI doesn't exist, it's that this state waives its privileges.
Supreme court rulings are always connected to the law at the time of the ruling. If a law changes (at the state, federal, or constitutional level) that can change how the supreme court will rule. The state probably couldn't invalidate QI for federal officers, but for state officers, why not?
> Officers in [Finland and Norway] must attend their nations' three-year police universities, and leave with degrees that are equivalent to a bachelor's.
> Rune Glomseth, a professor at the Norwegian police university, Politihøgskolen, said policing is approached as an academic discipline. "It's the same quality of education that we have for teachers, nurses, and so on," said Glomseth, who was also a police officer for three decades.
> The first year of police education in Norway is focused on the role of police in society and ethics. In the second year, students shadow training officers, before returning full time for a third year focused on investigations and completing a thesis paper.
Only in a very limited capacity, I guess.
IMO the important result of this legislation is that it helps align the incentives of the police department with that of the public they are supposed to serve. That means a department will be more likely to reform practices and policies which would cause frequent lawsuits instead of simply instituting policies to optimize for arrests or convictions. Asset forfeiture is another police policy which places the interests of the police at odds with that of the public. In many places the assets claimed by asset forfeiture can be used to directly fund the department's budget and there is no need to charge anyone of a crime to do so.
But underwriters don't necessarily need to insure every officer, and not every officer will be insured the same. If they are deemed too risky, it doesn't matter if the union is backing their premiums or not -- if they don't have insurance, they can't work (or can't do fieldwork or something).
The union could adopt an "all or none" policy with the insurance company, and then if an individual officer is barred by the insurer, the union will be telling all officers (and management) "sorry, insurance won't cover us, can't come in to work until it is sorted."
> underwriters don't necessarily need to insure every officer, and not every officer will be insured the same
They don't need to, but that's not how insurance is sold. Unions collectively buy and negotiate benefits for their members. And a requirement from the union would be, no doubt, universal coverage and pricing.
Police unions are much worse than other public unions. If other public unions take illegal action, the police can arrest them. When the police union does something illegal, no one is going to do anything about it.
> A public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall not subject or cause to be subjected any resident of New Mexico ... to deprivation of any rights, privileges or immunities secured pursuant to the bill of rights ...
> [a] "public body" means a state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico or any branch of government that receives public funding, including political subdivisions, special tax districts, school districts and institutions of higher education...
Just want to highlight this part of the bill since it seems that it was missed by many commenters.
> INDEMNIFICATION BY PUBLIC BODY.--A judgment awarded pursuant to the New Mexico Civil Rights Act against a person acting on behalf of, under color of or within the course and scope of the authority of the public body shall be paid by the public body.
Loser pays has negative consequences. If you have big pockets you can afford to sue, if you lose it isn't a big deal, but if you are a small guy you don't dare sue a big player: they can lawyer up, even if they only win 10% of the time via confusing legal loopholes that shouldn't apply but they can make apply anyway, that is still enough lawyer fees for the loser to pay that no regular person dares go to court.
I don't know of a solution. The problem is very complex. So far every option I've heard of (including what we have now) has serious negative effects.
A frivolous lawsuit can still be dismissed without qualified immunity, and they regularly are, but the problem is that serious wrongdoing is also regularly dismissed, creating a catch 22 where the lack of existing case law and the requirement that wrongdoing be in violation of clearly established law (which generally means nearly identical facts) leads to cases being dismissed before they become case law.
That's not conducive to good governance, which is why you get conservative Libertarians like The Cato Institute joining with the NAACP to argue against it.
> “Qualified immunity is a court-created doctrine that allows public officials to escape accountability after they engage in misconduct, even when their actions send an innocent person to prison.
I know this is likely impossible.. but I'd love to see prosecutors/law enforcement have to serve out the sentence or someone they convicted via misconduct. Withhold or manufacture evidence to push for a 10 year sentence? Sure but if that's ever uncovered, you get the 10 year sentence instead.
It might convince everyone to be a) more forthcoming with evidence and b) reasonable in the penalties they seek. Both could be a win for the system and the public as a whole.
well if you realize there was misconduct 25 years in to the 30 year sentence then there wouldn't be much reason to come clean, I mean you might be part of a team where X did something wrong, did you do something wrong - when you find out about it and don't come clean you did. Anyway a law should maybe take that scenario into consideration, or, in the American system the courts would have to decide the edge case.
To be honest though, disbarment (particularly if that disbarment was reciprocal) and fine is a more just punishment, because often the issues are so technical that a jury of non lawyers has trouble understanding the issues involved.
The last thing that I'd want to do is send someone to jail for up to 30 years for a good faith mistake, that's not justice either.
With this, police will soon stop intervening to stop crimes from happening, and will instead focus their attention on after-the-fact data gathering and reporting. I can't blame them, but quality of life for law abiding citizens is likely to suffer. In high crime areas, I can understand police considering certain neighborhoods as "no go" zones. Why take such a risk with your own life to stop a crime against somebody else?
>With this, police will soon stop intervening to stop crimes from happening
They already do this and are legally protected to do so.  The TL;DR is: the police is not legally required to help you, protect you, or take any action, really. Honestly, Lozito v. NYC makes me wonder what exactly the police is required to do, if anything. I'm certain that individual city's City Attorney's office decide this in their contract(s) with the police, but those provisions are unlikely to be directly related to the day-to-day job of officers AFAIK.
Because it's literally their job to take such a risk with your own life to stop a crime against somebody else. To say that you'll refuse to do your job if there is a possibility of being liable if you commit a crime without explicitly being told it's a crime then maybe it isn't the job for you.
Qualified immunity is unrelated to whether the city will cover the settlement for the cop (which they usually do) this is about whether if a cop does something illegal to you, that hasn't explicitly been called illegal in identical circumstances, can you sue them like you could any other person that violated your rights.
I don't know why anyone would want to be a police officer. There's no upside.
Aside from the genuine affection they get from the people they help here and there.
Given the nature of their job, it seems like there would be too much personal risk to get involved in any kind of physical altercation with the public. Because if you get in a fight, I mean a real fight, you better be ready to fight-to-win. Because there's a good chance that the meth'd out junkie you're fighting doesn't even know what planet he's on, let alone what are the consequences of pulling your gun off your hip and shooting you with it.
You mean no upside other than a really cushy pension after 20 years. Also police officers aren't anywhere close to the most dangerous jobs. Above them are gardeners, construction workers, iron and steel workers, farmers, drivers, garbage collectors, roofers, aircraft engineers, fishermen, and loggers. In other words, if your a strong idiot, police work is the one of the best paying and safest jobs for you.
Seattle cops similarly make bank. Of course, police pay is heavily effected by local cost of living, but Seattle cops make tons of overtime. I just learned there is a minimum three-hour overtime pay, meaning much of the overtime payout isn't even physically worked: https://www.theurbanist.org/2020/09/04/seattle-police-fleeci...
A lawyer friend of mine told me that it's a well known thing (at least in WA) that state patrol deliberately tries to ticket people at the end of their shift, because then they have to go through with the whole rigmarole of writing a traffic ticket, and it goes into overtime, triggering the payment. Supposedly, if you look at the statistical breakdown of tickets written by time of day, you see a clear spike there.
It depends on what kind of cop, obviously. But here's one example.
"The officers with SWAT and dynamic-entry experience interviewed for this book say raids are orders of magnitude more intoxicating than anything else in police work. Ironically, many cops describe them with language usually used to describe the drugs the raids are conducted to confiscate. “Oh, it’s a huge rush,” Franklin says. “Those times when you do have to kick down a door, it’s just a big shot of adrenaline.” Downing agrees. “It’s a rush. And you have to be careful, because the raids themselves can be habit-forming.” Jamie Haase, a former special agent with Immigration and Customs Enforcement who went on multiple narcotics, money laundering, and human trafficking raids, says the thrill of the raid may factor into why narcotics cops just don’t consider less volatile means of serving search warrants. “The thing is, it’s so much safer to wait the suspect out,” he says. “Waiting people out is just so much better. You’ve done your investigation, so you know their routine. So you wait until the guy leaves, and you do a routine traffic stop and you arrest him. That’s the safest way to do it. But you have to understand that a lot of these cops are meatheads. They think this stuff is cool. And they get hooked on that jolt of energy they get during a raid.”"
You’re arguing police work isn’t dangerous because there are a handful of more dangerous jobs, by linking to a page that includes police officer as a dangerous job.
In any case, you aren’t really offering a compelling case for several reasons:
-Death is not the only negative outcome of danger.
-Not all police jobs are equal so any metric that measures across the entire array of such jobs is fundamentally flawed. An undercover officer going after a drug dealer is in much more danger than a desk sergeant.
-Other people are the primary danger to police officers, so even if we accept the numbers as meaningful, there is a qualitative difference. A tree doesn’t decide you need to die, it just falls and you die or you don’t and it’s over. People aren’t like that.
-This is a measurement of outcomes with safety measures in place, including some that people find distasteful, like carrying fire arms.
> You’re arguing police work isn’t dangerous because there are a handful of more dangerous jobs, by linking to a page that includes police officer as a dangerous job.
No, they're arguing that it isn't particularly dangerous by naming 20 other jobs that are more dangerous, that orders of magnitude more people are employed in, and that nobody thanks for their service, leads a parade for, raises tens of thousands for, or reports on the news when they fall off the ladder and break their neck.
> Other people are the primary danger to police officers, so even if we accept the numbers as meaningful, there is a qualitative difference. A tree doesn’t decide you need to die, it just falls and you die or you don’t and it’s over. People aren’t like that.
The existence of more dangerous jobs is not an indicator that the job in question is not dangerous. This is especially true when the number of more dangerous jobs are a small percentage of all jobs. The linked article is literally titled “Top 25 Most Dangerous Jobs in the United States,” so his own source says the job is dangerous.
Whether the job is dangerous or not is in part fact (by whatever metric you choose) and in part where you draw the line (which is largely arbitrary but may have some statistical support).
If I were to stipulate the metric of fatalities, I would still conclude the job is dangerous because I consider construction work dangerous and it has fewer fatalities per capita.
Whether it is appropriate to throw parades or not for any of these groups doesn’t have an impact on the veracity of the claim.
They do get paid well. Policing is generally a family income type job. Those are increasingly difficult to come by.
Good policing = a better society to live in.
A return to robust and inclusive deescalation and related situational awareness, people awareness training can pack a big punch, as can having multiple avenues of response.
Perhaps that flying high person is better met by others, not necessarily police.
We can, and should, improve on the currently poor balance of income vs cost and risk exposure. Lots of ways to that, and putting a bunch of people to work cleaning up, repairing and enhancing our infrastructure would be top of my list.
Stronger requirements for police to be from and or parr of the community they police can cut a lot of risk too. This also can improve reward as well as respect and consideration. All these things go a long way.
Frankly, we could pay them more and invest in them more and get better policing as well as a lower risk for those police.
In my town, we just hired new officers. The difference between them and the ones either leaving or who are long into their careers is striking.
The training and overall readiness for all aspects of the job are not so well aligned as they have been in the past.
Better policy = lower risk too. The war on drugs has been particularly brutal all around. It would be great to see those risks taken for better, more mutually agreed upon rewards.
In simple terms: policing is an investment that can deliver great returns
Or... not, and a lot of that is on us, as a people, as it is on the officers.
Some people, well adapted to, or whose basic nature aligns with the job may feel very differently about what "upside" means too.
You are not fundementally wrong. It can range from OK to pretty grim.
A lot can be done. We need to have police people open to it, educating people as much as we ourselves need to be open to it, educating people.
The basic want of a better, safer, appropriately secure, helpful place to live is reason to sign up just as thuggery can be.
We can work on that too. Hiring criteria, bigger and more inclusive, robust training is a big part of seeing policing improve.
The current state of affairs is entirely of police's own making. It's not like that in many other countries, where cops are genuinely respected.
And maybe we do need radical measures to fix things. Georgia (the country) had a similar problem with their traffic police. They solved it by literally firing the entire force overnight, then raising both the hiring standards and the pay, and rebuilding it all from scratch.
Did you respond to the wrong comment? I’m having trouble making sense of your question in context to the comment you are responding to. I am on mobile though, so maybe I’m experiencing and off by one error.
Do you know any police officers? They frequently retire in their 40s with their living expenses covered for the rest of their lives. To generate that much passive income in another job typically would require a person to accumulate $2 million or more.