
Supreme Court declines to hear cases over qualified immunity - bgentry
https://www.cnbc.com/2020/06/15/supreme-court-declines-to-hear-cases-over-qualified-immunity.html
======
partiallypro
It's time for legislators to legislate. Many of our current problems can be
traced back to our legislature failing to do anything. They always rely on
court rulings or executive power. Usually because everyone is scared of losing
their next election or their future role at a cable news organization. Even
the people that do put forth legislation often poison pill it, so that it will
never pass. So they'll never have to be held accountable if it fails or have
their name on the vote count.

I know it sounds counter intuitive, but I think getting rid of the line item
veto has helped to cripple Congress even more. Because it used to absolved
members and let them vote for something they didn't like, knowing it would not
make it into law.

~~~
burkaman
I agree that it's time to legislate, but this is not one of those cases where
Congress caused a problem and is trying to use the court to clean it up. In
this case, the courts completely invented an immunity precedent out of
nothing, and now Congress will have to fix it.

Just want to note that legislators are a little less at fault here than they
normally are.

~~~
zerocrates
Congress has no problem doing this kind of "fixing" of the Court's decisions
when it so suits them: see the passage of RFRA in the wake of _Employment
Division v. Smith_.

There's probably no better time than right now to get the support needed to
pass a law eliminating QI. While we're at it, we can pass a law to replace
_Bivens_ rather than have analogous civil rights cases involving federal
agents subject to the courts' whims.

~~~
PaulDavisThe1st
Except that the Senate leader has declared any such effort "dead on arrival".

------
parsimo2010
There's nothing wrong with the idea of qualified immunity. A government worker
should not be held responsible if they make an honest mistake. Qualified
immunity already doesn't protect you if you knowingly break the law, and it
doesn't protect you if you are clearly incompetent. Qualified immunity only
protects you from civil lawsuits. It doesn't protect you from criminal
charges. Police officers can be charged with homicide or assault in cases of
police brutality without qualified immunity applying. The bigger question of
why more cops aren't going to jail has nothing to do with qualified immunity.
And holding cops accountable is something any state can do without the Supreme
Court.

Qualified immunity can prevent the fallback option of suing a cop that isn't
charged with a crime. But we're underreaching if we focus on the fallback
instead of the primary issue of holding people accountable for crimes.

~~~
bgentry
_Qualified immunity already doesn 't protect you if you knowingly break the
law, and it doesn't protect you if you are clearly incompetent._

If you believe the experts that are well-versed in this area, this is not how
it works in practice. The Wikipedia article covers a lot of the controversy
around this doctrine:
[https://en.wikipedia.org/wiki/Qualified_immunity#Objections_...](https://en.wikipedia.org/wiki/Qualified_immunity#Objections_and_criticisms)

Here is an example of a man in Grand Rapids, Michigan, who was brutally
assaulted by undercover officers because they believed he was somebody else.
Take a look at how difficult it has been for him to get any recourse for a
blatantly obvious abuse of power (6 years and counting):
[https://twitter.com/AaronParseghian/status/12701818156644966...](https://twitter.com/AaronParseghian/status/1270181815664496640)

~~~
parsimo2010
You're right that there is a problem with how the standard is applied-
requiring prior cases with extremely similar facts for precedent is the most
dumb sounding thing to me.

But the complaint about how qualified immunity is applied doesn't change the
bigger issue that those cops in your example beat up someone and were
acquitted of assault. This is focusing on how the fallback lawsuit was
prevented by qualified immunity instead of the primary issue that those cops
should have gone to jail.

~~~
rabidrat
Okay so what would you propose as the mechanism for focusing on that primary
issue?

~~~
parsimo2010
For a start the media should focus on exposing inadequately prosecuted cops
that broke the law instead of focusing on qualified immunity after the system
already failed.

One way to actually fix the problem is external investigation of police
complaints and the power to press charges separate from the DA. The vast
majority of the time the people investigating a police shooting work in the
same building as the shooters, and are often police themselves. Then the DA,
which works with the police on most of their cases, ends up being the one that
has to prosecute them. These should both be considered conflicts of interest.
We need people that aren't friends with the cops to have the power to do
something. The investigators should be limited to bringing criminal charges to
police that must be tried in court to prevent abuses of their power (otherwise
we risk a situation of "who watches the watchmen of the watchmen"). The idea
of special prosecutors exists, but for some reason isn't applied to police
matters.

Police unions are a problem now, but only because they have the power to fight
a police chief over employment terms and threaten to strike. They would not be
able to fight the prosecutor from an external organization. Let them fight the
police chief over administrative actions and discipline for minor violations
all they want (that's what unions are for) as long as punishment for crimes is
handled by someone else. This is exactly how it works with every other union-
they can fight employers on all sorts of matters, but they don't get a say
once a member commits a crime, and police unions should be the same.

Also, with police matters, a lack of evidence should be viewed as suspicious,
and possibly considered as supporting evidence for a complaint. The police
should wear cameras but they shouldn't manage the recordings. Body cameras
should be allowed to be turned off to deal with sensitive issues, but those
occasions should be limited and reviewable. If a cop is about to go talk to a
rape victim, then the footage leading up that point should be reviewed. If a
body camera was turned off when someone filed a complaint about assault, it
should be pretty easy to look at the footage leading up to that point and
determine if the camera was turned off for an appropriate reason, or if the
cop turned the camera off so they could crack some skulls without being
recorded. Excuses like "I forgot to turn my camera back on" can be handled
with indicator lights and audible tones or having the camera turn back on
after a while. Excuses like "my camera stopped working" can be checked to see
if the police officer submitted a service request.

None of these issues are controversial. The controversial part is that it
costs money to set up an oversight investigation. Usually a politician running
with a platform like this is doomed to lose an election because they are
talking about raising taxes and they won't have the support of the police
union. But if there were ever a time to get this implemented it would be now.

~~~
rabidrat
First, "the media" should do something, but we can't legislate that.

Secondly, "the power to press charges separate from the DA"\--this is a
_stronger_ form of getting rid of qualified immunity. We already have the
power to file "civil" suits, and qualified immunity removes that power in the
case of e.g. police. Giving people the power to file criminal charges
themselves would be a huge deal. Maybe it is the right thing ultimately, but I
think it's obvious how it could be abused; an abusive billionaire could
legally threaten their opponents with imprisonment (or worse).

Thirdly, thinking that bodycam reform would be any kind of useful measure, is
quite naive, when you look at how many of these recent abuses are recorded on
independent cameras, with the police fully aware they are being recorded, and
yet they still act as they do, knowing they have this "qualified immunity" to
protect them.

I'm not saying that you're completely wrong; some of these reforms may help
things a bit. But they don't strike at the root of the issue, and the ship for
seeing if more moderate reforms will work has already sailed. The police and
cities etc have had literally decades to clean up their act, and in cities
across America, they have failed. Time's up.

~~~
breischl
GP did not suggest letting private citizens bring criminal charges, he
suggested having a separate and independent arm of government that provides
oversight of the police have that power. That's a very different thing, and at
seems at least plausible way forward. At the very least it helps to address
the conflicts of interest that he identified (correctly, IMO).

~~~
rabidrat
Thank you for the clarification, I misunderstood that point. Whatever law-
enforcement entities we will have to replace the police, should certainly have
independent oversight, I agree. However, for the current police regime, it is
still too little, too late.

------
hirundo
Kudos to Clarence Thomas for being the sole Supreme to dissent from this
decision:

“There likely is no basis for the objective inquiry into clearly established
law that our modern cases prescribe... Leading treatises from the second half
of the 19th century and case law until the 1980s contain no support for this
‘clearly established law’ test.”

~~~
nsajko
AFAIK, Alito and Gorsuch also dissented.

~~~
wahern
No, just Thomas. See PDF page 52 at
[https://www.supremecourt.gov/orders/courtorders/061520zor_f2...](https://www.supremecourt.gov/orders/courtorders/061520zor_f2bh.pdf)

My guess is that many of the justices thought that granting certiorari at a
critical moment in the public debate might provide a convenient excuse for
Congress to sit on its hands. Sotomayor and Ginsburg have both previously
signaled their willingness to reexamine the precedent, yet neither wrote a
dissent. If Congress does nothing I'd expect SCOTUS to revisit the issue in
the next couple of years.

------
btmiller
That's disappointing to hear. Something that's been made clear to me over the
past month is that law enforcement actions without true consequences enables
further transgressions against the public that they're meant to serve.

It's essentially the question of who polices the police, and their police
unions across the country play a huge role in the fallout from cases where
police have crossed the line. Administrative leave with pay and eventual
reinstatement is not an acceptable form of accountability in the US.

Whether it's a judicial decision or legislative change I don't know, but I'm
glad police brutality is getting the attention it deserves (for now).

------
phkahler
QI protects the police similar to how an LLC protects owners and employees.
The difference is that the DAs dont really like to pursue criminal charges
against the police, so in many cases of misconduct nothing comes of it. That
can lead to believing the misconduct is OK.

~~~
burkaman
This is not correct. Qualified immunity says that an officer can't be held
liable for any actions that were not already established in case law as
unconstitutional. Since this precedent has been in effect for decades, that
means that in order to convict an officer, you need to find some "precisely
factually on-point caselaw" from before qualified immunity existed that holds
the exact actions of the officer are unconstitutional.

Here's one example case, which the Supreme Court just declined to hear:
[https://www.supremecourt.gov/DocketPDF/19/19-679/123466/2019...](https://www.supremecourt.gov/DocketPDF/19/19-679/123466/20191122164334779_Corbitt.cert.pet.pdf)

> Officer Vickers and several other police officers pursued a criminal suspect
> into Amy Corbitt’s yard. Six children, including Corbitt’s ten-year-old son,
> SDC, were at play. Vickers and his fellow officers ordered the children—at
> gunpoint—to lie on the ground, face-down. The children complied. Meanwhile,
> the unarmed criminal suspect was readily compliant with the officers.

> While holding the children on the ground, weapons drawn, Vickers fired his
> gun twice at Corbitt’s pet dog. He missed the dog both times. The second
> time he fired, Vickers shot SDC in the back of the knee, seriously injuring
> him. SDC, still lying face down on the ground at Vickers’ order, was
> eighteen inches away from Vickers.

> Corbitt filed this suit, alleging that Vickers violated SDC’s constitutional
> rights. In particular, Corbitt alleged that, because Vickers faced no
> threat, his use of deadly force was unreasonable. Vickers sought dismissal,
> asserting qualified immunity. The district court denied Vickers’ motion, and
> Vickers took an interlocutory appeal. The Eleventh Circuit, holding that the
> plaintiff is obligated to plead around qualified immunity, concluded that
> the complaint failed to establish that qualified immunity is inapplicable.

Note that these are the facts as described by the court itself, not the
petitioner's lawyers. Since there is no case on the record establishing that
these exact actions are unconstitutional, qualified immunity means the court
must assume the officer was acting in good faith and didn't know that shooting
at children and a pet dog for no reason is wrong.

Edit - Here's another one of the cases the court just declined to hear:
[https://www.supremecourt.gov/DocketPDF/19/19-899/128836/2020...](https://www.supremecourt.gov/DocketPDF/19/19-899/128836/20200116111103542_West_CertPetition.pdf)

> QUESTION PRESENTED

> Whether an officer who has consent to “get inside” a house but instead
> destroys it from the outside is entitled to qualified immunity in the
> absence of precisely factually on-point caselaw.

I encourage you to read the case, but basically, the petitioner gave the
police her keys and consent to go into her house to look for a suspect (after
being threatened with arrest for "harboring a fugitive"). Instead, the police
bombarded the house with tear gas grenades, destroying it and almost
everything inside. The suspect was not there, and the police did not have any
reason to believe he was. The petitioner and her children were homeless for
two months, and were offered a hotel room for 3 weeks and $900 as
compensation.

> The panel majority found that the officers were entitled to qualified
> immunity on the scope-of-consent question because “no Supreme Court or Ninth
> Circuit case clearly established, as of August 2014, that Defendants
> exceeded the scope of consent” when they took West’s permission to “get
> inside” her house as permission to bombard and destroy it. App. 13. After
> all, the majority reasoned, the officers “did ‘get inside’ [her] house,
> first with objects and later with people.” Ibid.

~~~
JangoSteve
These are really good illustrations of the quote from this article:

> “Qualified immunity means that government officials can get away with
> violating your rights as long as they violate them in a way nobody thought
> of before,” said IJ Attorney Joshua Windham.

[https://ij.org/press-release/institute-for-justice-asks-
u-s-...](https://ij.org/press-release/institute-for-justice-asks-u-s-supreme-
court-to-hold-government-officials-accountable-for-destroying-idaho-home-with-
grenades/)

~~~
burkaman
It's even stronger than that. They just have to violate them in a way nobody
thought of and was succesfully convicted of before 1967 when qualified
immunity was established.

------
andybak
Any good analysis on this? My initial reaction is to be aghast (but then I
can't believe QI is actually law)

I remember reading something along the lines of "it's because SCOTUS believes
the legislature needs to act" rather than "it's because the SCOTUS thinks
Qualified Immunity is fine and dandy" but I'd love to hear some informed
opinions.

~~~
jimmaswell
> "it's because SCOTUS believes the legislature needs to act"

The SC made up modern QI out of thin air on their own, so this feels like a
cop-out.

~~~
whoopdedo
That the Supreme Court has already stated QI is a thing can be seen as their
reason not to argue it again. They're saying they don't see why the court
would come to a different conclusion. It's a view that law is deterministic:
given a particularly worded legislation and a specific finding of fact, only
one conclusion can be arrived at. There can't be multiple interpretations. (A
court can strike down a vague law, but if they uphold it then it must not be.)
And an interpretation can't change over time or else that would be
"legislating from the bench."

~~~
jimmaswell
You're making it sound impossible or forbidden but the SC has overturned its
own precedents over 300 times before.

[https://en.m.wikipedia.org/wiki/List_of_overruled_United_Sta...](https://en.m.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions)

------
MR4D
Please hear me out before voting/replying....

I think this is actually a good thing, despite the headline, for two reasons:

1 - It forces Congress to do this (and it's their job to write the rules, not
SCOTUS)

2 - By forcing Congress to write the law, they will have to address all of the
issues around it, which might allow for some interesting things that would
never have come from a SCOTUS decision.

For instance, maybe Qualified Immunity automatically goes away if you don't
have your chest camera on.

Maybe you keep Qualified Immunity if your chest camera is on, and your actions
have been confirmed by an independent board as lawful.

There are lots of variants, and I only illustrated two of them. Of course,
it's Congress, so they can mess this up as much as anything, but at least they
will get the input of 535 members (and from constituents) when crafting the
approach.

~~~
ianleeclark
> It forces Congress to do this (and it's their job to write the rules, not
> SCOTUS)

This likely will never happen. Just outright, it won't happen. I'm not saying
we should rely on courts for legislation, but, if one of the last release
valves for crises won't let up, it won't happen. The gridlock is
insurmountable.

------
tathougies
> In a dissent from the court’s decision not to hear one of the qualified
> immunity cases it was considering, Thomas reiterated his opposition to the
> doctrine. > > “There likely is no basis for the objective inquiry into
> clearly established law that our modern cases prescribe,” Thomas wrote.
> “Leading treatises from the second half of the 19th century and case law
> until the 1980s contain no support for this ‘clearly established law’ test.”

When will the voices of reason prevail?

------
DevX101
I built a site to raise grassroots bi-partisan support to end qualified
immunity at
[https://endqualifiedimmunity.com](https://endqualifiedimmunity.com). The goal
is to get Republicans, Democrats, Libertarians to all contact their
representatives and senators to support legislation against this.

This is the first time I've ever done anything remotely political beyond
voting but was so incredulous at the broad scope of this judicial policy and
it's impact on removing accountability from police misconduct that I had to do
something.

If you'd like to help in any way on this -- contact me (see profile).

~~~
bgentry
Nice work! If I can offer a suggestion, I think it might help to list
everybody who is on record as supporting the bill. In addition to many House
Democrats, at least one Republican has also signed on:
[https://twitter.com/justinamash/status/1270859758061436929](https://twitter.com/justinamash/status/1270859758061436929)

~~~
DevX101
Thank you! That's my goal this week to put together a current list of the co-
sponsors on all bills aimed at restricting/ending qualified immunity.

~~~
bgentry
There's also the Players Coalition, a group of >1400 prominent professional
athletes and coaches, which has publicly called on Congress to pass the Ending
Qualified Immunity Act:
[https://www.washingtonpost.com/sports/2020/06/10/athletes-
pe...](https://www.washingtonpost.com/sports/2020/06/10/athletes-petition-
calls-congress-end-qualified-immunity-police/)

------
surfsvammel
English is not my first language. I just cannot wrap my head around this
sentence, can’t figure out what it means.

“... cases that asked the court to revisit a doctrine which shields police
from lawsuits for conduct that does not involve a “clearly established”
violation of the law.”

~~~
alistairSH
_...cases that asked the court to revisit a doctrine..._

The Court was asked to review cases. Those cases relate to a doctrine known as
qualified immunity.

 _...a doctrine which shields police from lawsuits..._

Qualified immunity shields government officials (police, in this case) from
civil lawsuits (suing for damages - officials can still be held criminally
accountable).

 _...conduct that does not involve a “clearly established” violation of the
law..._

The QI only applies when there is not a "clearly established" violation of the
law.

That last phrase is the real killer. Courts require the aggrieved party to
cite previous cases with EXACTLY the same set of facts. Of course, no two
cases are exactly the same, so the courts have effectively given police
officers blanket immunity to civil claims...

------
notananthem
Strip QI as well as increase criminal prosecution- both, at minimum

------
komali2
> Justices Clarence Thomas, one of the court’s most ardent conservatives, and
> Sonia Sotomayor, a liberal, have both criticized qualified immunity on
> separate grounds.

So... why did the Court decline?

~~~
thrill
The Court recognizes it has limited time and generally tries to choose cases
that it feels it can make a solid argument of more than a single vote one way
or another. Some cases are likely obvious, but many are contentious. The
contentious ones need to be clarified by the elected representatives, as
that's most explicitly their job. The obvious ones are frequently simply
pointing out the unconstitutionality of some law as it's written, again
reflecting on the poor job those same elected representatives have done.

~~~
yboris
Unrelated, but has there been any push to require a "reason for this law"
section for every law put on the books?

It seems to me like a simple requirement to make legislators be explicit why a
law is on the books would be of tremendous service to the public, the judges,
and others involved. And it would cost almost nothing (it does not take a long
time to write up a "commit message" of why a "code change" is happening).

~~~
pseudalopex
"Whereas" is commonly the first word of a bill.

------
anm89
We need term limits on the supreme court. The idea of lifetime appointments
for anything in a democratic society is absurd.

~~~
AlexandrB
Maybe, but they would need to be really long (16 years?). Otherwise every
administration will just flip judges "to their side" at the first opportunity,
nullifying the court's role as a check on executive/legislative power.

------
syshum
largely the Supreme Court is a failure and disappointment. Of all the flaws of
the US Constitution the manner and scope of the US Supreme Court has to be one
of the biggest blunders the founders of this nation committed.

~~~
meddlepal
You're kidding right? It's probably the one thing they got completely right.

~~~
jldugger
You realize judicial review -- the reason people care all that much about the
Court -- is not enumerated in the Constitution, right? It was established
instead by the court itself in Marbury v Madison.

------
mehrdadn
Dupe (I posted this one actually):
[https://news.ycombinator.com/item?id=23527732](https://news.ycombinator.com/item?id=23527732)

~~~
Tomte
What for? Your submission has two points and zero comments. There is nothing
to merge.

[parent comment asked for a merge, now edited]

Also, it's not a dupe. You submitted a different article.

~~~
mehrdadn
Wondering how to avoid bifurcation of the discussion. If we can
close/delete/merge one of these somehow that'd be nice (feel free to get rid
of the one I posted, I don't care), but maybe it won't be necessary? I have no
idea.

~~~
Tomte
There is no bifurcation. Your submission did not gain any traction, nobody is
commenting there. It's long gone.

The oldest entry in /newest is now at 19 minutes ago, your submission was two
hours ago. Nobody is going to stumble upon it anymore.

I get it. You feel the karma "belongs" to you, because you were faster to find
out about that decision. But that's not how it works here. Sometimes you're
lucky, but very often you're not.

~~~
Kednicma
Maybe we shouldn't award karma for submissions, if it leads to the problem of
multiple people vying to submit something first and leading to duplicate
submissions?

~~~
Tomte
dang reported years ago that he's thinking about some karma-sharing mechanism,
where multiple submitters get a piece of the pie. I don't know if he abandoned
the idea, didn't find a good way to do it, or maybe rolls it out tomorrow.

~~~
aspenmayer
He's said as much about 15 days ago, but it's also been years in discussion.
Not exactly anything to hold your breath waiting for. HN is fine as it is, but
karma sharing wouldn't hurt.

[https://news.ycombinator.com/item?id=23346089](https://news.ycombinator.com/item?id=23346089)

[https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que...](https://hn.algolia.com/?dateRange=all&page=0&prefix=true&query=%22karma%20sharing%22&sort=byPopularity&type=comment)

