June 2, 2020

Police Reform

The Supreme Court is considering hearing “a group of nine cases that in one way or another all challenge current qualified immunity doctrine, under which law enforcement officials are not liable for discretionary actions that allegedly violated someone’s rights unless the actions violated ‘clearly established’ law.” SCOTUSblog

See our prior coverage of the aftermath of George Floyd’s death here. The Flip Side

Both sides argue for an end to qualified immunity:

“When Floyd’s family goes to court to hold the officers liable for their actions, a judge in Minnesota may very well dismiss their claims. Not because the officers didn’t do anything wrong, but because there isn’t a case from the 8th Circuit U.S. Court of Appeals or the Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nearly nine minutes until he loses consciousness and then dies. And such a specific case is what Floyd’s family must provide to overcome a legal doctrine called ‘qualified immunity’ that shields police and all other government officials from accountability for their illegal and unconstitutional acts…

“It requires a victim to identify an earlier decision by the Supreme Court, or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune… [In the past year] courts have granted qualified immunity to: officers who stole $225,000, a cop who shot a 10-year-old while trying to shoot a nonthreatening family dog, prison officials who locked an inmate in a sewage-flooded cell for days… When the Supreme Court conceived qualified immunity, it promised that the rule would not provide a ‘license to lawless conduct’ for government officials. Plainly, it has.”
Patrick Jaicomo and Anya Bidwell, USA Today

“Federal judge Don Willett declared in 2018 that ‘qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly’…

“Courts have ‘approved qualified immunity for cops who allegedly shot people without cause, sicced a dog on a man who was surrendering, tased a driver who was stopped for failing to buckle his seat belt, and ordered a 17-year-old boy to disrobe and masturbate so they could take pictures of his erect penis,’ Reason columnist Jacob Sullum reported in 2019. That year, a federal appeals court bizarrely granted qualified immunity to Fresno, California, police officers who stole $225,000 during a search of two businessmen.”
Jim Bovard, The American Conservative

“A major investigation by Reuters earlier this year found that ‘since 2005, the courts have shown an increasing tendency to grant immunity in excessive force cases — rulings that the district courts below them must follow. The trend has accelerated in recent years.’ What was intended to prevent frivolous lawsuits against agents of the government, the investigation concluded, ‘has become a highly effective shield in thousands of lawsuits seeking to hold cops accountable when they are accused of using excessive force’…

There are few things that Justice Sonia Sotomayor and Justice Clarence Thomas agree on, at least when it comes to the letter of the law. Both have expressed deep concern over the court’s drift toward greater and greater qualified immunity for police officers. (‘By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow,’ Justice Sotomayor once wrote.) With the next George Floyd just a bad cop away, one hopes the other justices will be moved to ratchet back qualified immunity to circumstances in which it is truly warranted.”
Editorial Board, New York Times

“The Supreme Court recently let stand an Eighth Circuit decision dismissing, on qualified immunity grounds, a Section 1983 case against a Nebraska officer who picked up a five‐​foot‐​tall, unarmed woman clad only in a bathing suit and drove her head‐​first into the ground, knocking her unconscious and breaking her collarbone—not because it was lawful for him to do so, but rather because there happened to be no case on point with precisely those facts…

“This is madness… There are ten qualified‐​immunity cases pending before the Supreme Court, which may decide [next week] whether to accept any of those cases for review and ensure that judicial interpretation of Section 1983 remains faithful to congressional intent. The senseless brutalization of George Floyd, along with countless others, reminds us that this is not just a legal but a moral imperative.”
Clark Neily, Cato Institute

Both sides also argue for curbing the power of police unions:

“Maybe it’s finally time to consider the role that police unions play in perpetuating police brutality… Derek Chauvin, the former Minneapolis police officer who held his knee on George Floyd’s neck, had 18 prior complaints filed against him with the Minneapolis Police Department. Like many departments, ‘privacy’ regulations negotiated as part of police-union contracts make it impossible to know the details…

“Former officer Tou Thao, who stood by while Chauvin restrained Floyd, had six complaints filed with internal affairs, one of which is still open. Thao was also part of a 2017 lawsuit settled for $25,000 by the city of Minneapolis. It alleged that he and another officer subjected a suspect to ‘cruel and unusual’ punishment… The issue of rogue police officers who routinely violate constitutional rights and their superiors and unions who protect them is no longer a Right-versus-Left issue. It should be an issue that unites all Americans.”
John Fund, National Review

“Unfortunately, union protection plays no small role in keeping cops like Chauvin and Thao out on the streets. Collective bargaining agreements for police generally include normal language around wages and benefits but can also act as an unbreachable firewall between the cops and those they have injured. Typically, such contracts are chock full of special protections that are negotiated behind closed doors. Employment contract provisions also insulate police from any meaningful accountability for their actions and rig any processes hearings in their favor; fired cops are able to appeal and win their jobs back, even after the most egregious offenses…

“Ultimately, police unions protect their own, and the contracts they bargain keep killers, domestic abusers, and white supremacists in positions of deadly power—or provide them with generous pensions should they leave.”
Kim Kelly, New Republic

Other opinions below.

See past issues

From the Left

“[The video] has drawn condemnation from police departments across the country… Perhaps that’s progress. But what matters more than those distant denunciations is the ho-hum attitude of the officer standing next to the homicide in progress, and the failure of two other officers at the scene to intervene. One sadistic cop might be an aberration; four at the same scene of a minor arrest is evidence of systemic cultural rot

“It’s not enough for Minneapolis to fire the four, or even to prosecute them… The entire department needs to ask why these individuals fit into its culture. Why did Officer Derek Chauvin think that he could be filmed crushing the life out of a man without consequence? Why did three fellow officers think that they’d be better off letting Chauvin do it than if they stopped him?”
David Von Drehle, Washington Post

In the last few years “Minneapolis police implemented trainings on implicit bias, mindfulness, de-escalation, and crisis intervention; diversified the department’s leadership; created tighter use-of-force standards; adopted body cameras; initiated a series of police-community dialogues; and enhanced early-warning systems to identify problem officers… None of it worked…

“We must demand that local politicians develop non-police solutions to the problems poor people face. We must invest in housing, employment and healthcare in ways that directly target the problems of public safety. Instead of criminalizing homelessness, we need publicly financed supportive housing; instead of gang units, we need community-based anti-violence programs, trauma services and jobs for young people; instead of school police we need more counselors, after-school programs, and restorative justice programs…  Instead of giving them more money for pointless training programs, let’s divert that money into building up communities and individuals.”
Alex S Vitale, The Guardian

From the Right

“When police were investigated following incidents of deadly force that had gone viral, police activity declined and violent crime spiked…

“Sadly, the decision to launch departmentwide state and federal inquiries into the deaths of Brown, McDonald and Gray resulted in numerous additional deaths. [Harvard Economist Roland] Fryer said that because of changes in police behavior following investigations in these and other cities, ‘my estimates show that we lost a thousand more lives, most of them black as well, because of an increase in homicides.’ The protesters and their political allies insist that policing is the problem, but when police pull back, black communities are hit hardest…

Scapegoating law enforcement can backfire in ways that do the most harm to our most vulnerable communities. ‘I never would have guessed that if police stopped putting in the effort, that homicides would change like this,’ said Mr. Fryer. ‘You hear some people say ‘Oh, we want to police our own neighborhoods, get out.’ No, you don’t want that.’”
Jason L. Riley, Wall Street Journal

A government and a society that has turned a blind eye for so long is not going to offer a solution. A society where a white kid can throw a brick through a window in the name of racial justice while likely facing far less consequence than a black kid doing the same is not a society where we can ever governmentally arrive at a real solution to the problem. So many of the proposed governmental solutions are just rearranging deck chairs on a sinking ship or trying to throw around money to wash their hands of the problem…

“The solution is going to come individually and over time with you and me committed to loving our neighbors as ourselves, teaching our children to love and appreciate the different syllables of the American experience, and being friends with people who do not look, think, or vote like us.”
Erick Erickson, The Resurgent

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