
Qualified Immunity: Explained - dredmorbius
https://theappeal.org/qualified-immunity-explained/
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solidsnack9000
The article offer a good summary of what qualified immunity is and why it is a
problem.

 _Ordinary people ... are expected to follow the law. If they violate someone
else’s legal rights, they can be sued and required to pay for the injuries
they’ve caused._

 _Under the doctrine of qualified immunity, public officials are held to a
much lower standard. They can be held accountable only insofar as they violate
rights that are “clearly established” in light of existing case law. This
standard shields law enforcement, in particular, from innumerable
constitutional violations each year. In the Supreme Court’s own words, it
protects “all but the plainly incompetent or those who knowingly violate the
law.”_

~~~
deathgrips
This actually prevents case law from being established. If it's plainly
evident that tasing pregnant women for refusing to sign paper is bad, but no
high profile case has established it, no lawyer will pursue such a case
because there will be no payout. It's a mechanism for cops to do what they
want and face no civil consequences.

~~~
tanderson92
It's actually worse than that, if you can believe that that is possible:
[https://scholar.valpo.edu/cgi/viewcontent.cgi?article=1198&c...](https://scholar.valpo.edu/cgi/viewcontent.cgi?article=1198&context=law_fac_pubs)

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bradleyjg
The lede is buried:

“However, that justification ignores the reality that such costs are virtually
always paid by the officer’s municipality, insurance, or unions. A study of
more than 80 state and local law enforcement agencies across the country found
that in instances of misconduct—including those involving truly egregious,
clear-cut abuses of authority—individual officers almost never paid such
costs.”

By all means QI should be overturned by statute so victims can be compensated,
but 1983 is not a mechanism for holding officers accountable. For that we need
pare way back civil service and collective bargaining based barriers to
imposing consequences on mal- and misfeasant officers.

~~~
pstuart
Sorry to spam with this comment but...

Police should be self-insured, backed by their pension plan. Without real
incentive to change, there is no change.

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CryptoBanker
Why not insured by actual insurance companies? Surely after any incident the
insurance company would raise premiums and after a certain point it would no
longer be affordable for bad cops to be cops.

This wouldn't be too different from a medical professional being required to
have malpractice insurance.

~~~
Gibbon1
That's what I came around to, cops should get a stipend to pay their bond. And
make sure the insurance companies have full access to their personal files. I
think that would get rid of 90% of your problem cops right there. Because
they'd be unable to find insurance.

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tehwebguy
Qualified immunity is kind of a red herring. Yes, it's important for citizens
to be able to sue police, but unless those damages roll uphill they will often
just be suing judgement-proof cops.

The other issue, the issue that's on everyone's mind this week, is _criminal_
cases. Police don't avoid prison or criminal cases because of qualified
immunity, but because they are not charged in the first place.

~~~
deathgrips
Criminal cases are a red herring. We need to address the structures and
institutions that make tasing pregnant women possible.

Let's put it like this: if you came into your office one morning and the guys
in the cubicles next to you are shooting up black tar heroin (and no one acts
like they're doing anything wrong), does the problem lie with the individuals
or with the corporation?

~~~
oldsklgdfth
To address that I feel like you have to ask what would moving officers to
pursue the issue that way. I suspect part of the answer is quotas and a “never
back down” mindset.

QI seems like the bandaid. If you don’t push hostile policing, maybe you don’t
get hostile police.

~~~
coffeecat
I disagree with the conclusion that qualified immunity is unimportant. It's
one small facet of a system which encourages hostile policing. Others include
the practice of exclusively hiring veterans, access to military gear, friendly
relations between police and local officials, and the nature of their training
and culture. To some extent, these things reinforce one another. I think the
larger problem can only be addressed by tackling the smaller problems one-by-
one.

~~~
oldsklgdfth
I don’t think QI is insignificant.

I suspect that policing practices became hostile first and QI is the legal
loophole to get away with it. If you eliminate it the “system” will find
another way to do it. “Active” policing is a lot of “cleaning up the
neighborhood” and “maintaining property value”. As long is that is the part of
the goal there will be away to protect police.

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clarkevans
[https://mappingpoliceviolence.org/](https://mappingpoliceviolence.org/)
claims that 99% of police killings from 2013-2019 have not resulted in
officers being charged with a crime. Their database lists 7663 killings, of
which 26 (or .33%) were tried with a conviction.

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drtillberg
A competent lawyer can find a violation of Federal law violation in almost any
impromptu government action, mainly violations of due process rights. The key
substantive benefit of making such a claim, piling onto state law violations,
is recovery of attorneys fees under Section 1983.

It's easy to see that each example in the article involved improper conduct
that hopefully violated state law. State law decisions in each case hopefully
would have been easy(ier). Constitutional law, on the other hand, sometimes is
_hard_ \-- especially when there isn't a decision directly on point.

So, we get qualified immunity, where judges decline to allow the tail of
(potential) attorneys fee recovery wag the dog of constitutional law
challenges that involve complicated issues of both fact _and_ law. No one
loves litigation about attorneys fees except lawyers, and that's key insight
in understanding the law of qualified immunity.

An alternate solution would be to adjust the incentives that litigants have to
bring Section 1983 challenges in the first place-- possibly by making
attorneys fees more generally available to litigants-- so that they reserve
Section 1983 claims for those cases where they are truly decisive.

Edit: The article does talk about attorneys fees briefly, I corrected my
comment. Thanks.

~~~
mcherm
> The key substantive benefit of making such a claim, piling onto state law
> violations, is recovery of attorneys fees under Section 1983 (the article
> does not discuss this).

Perhaps you should go back and read the article again -- it absolutely does
discuss this.

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deathgrips
Cops can't be held liable for violating case law until another cop has been
held liable for that same act. The solution is left as an exercise for the
reader.

It just works :^)

~~~
sumedh
Arent judges supposed to have better critical thinking abilities than us
normal folks. How do they not see a flaw in that logic?

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dredmorbius
A closely related reform is _prosecutorial_ immunity:

[https://www.themarshallproject.org/2018/03/13/let-s-put-
an-e...](https://www.themarshallproject.org/2018/03/13/let-s-put-an-end-to-
prosecutorial-immunity)

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1cvmask
The Cato Institute has a blog on abolishing qualified immunity:

[https://www.unlawfulshield.com/](https://www.unlawfulshield.com/)

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maherbeg
What institutions can we support to help push changes forward here?

This feels incredibly important to have fixed.

~~~
ccvannorman
This. What actionable steps can _I_ take to make a change?

\- call your legislators / senators / city officials -- sure, but can I do
more than a call? \- What is the form of a bill/law that I can get behind? How
does such a process start and finish? I would donate $$$ right now to any
organization with a clear plan to overturn this.

~~~
deathgrips
Get out in the streets until the problem is solved. Your representatives
distract you from how much power you have as an individual.

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fallingfrog
This is blood curdling

~~~
ccvannorman
Good. May it move your hand to vote for a change, otherwise it will not
change.

