For years, the words “qualified immunity” were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine — created by the U.S. Supreme Court itself — a target of broad public demands for comprehensive reform to rein in police behavior.
The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyd’s death, the immunity defense has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years — even when judges found the behavior so egregious that it violated a plaintiff’s civil rights — thanks largely to continual Supreme Court guidance that has favored police.
The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. “It’s essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas,” said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court. “It shouldn’t turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.”
The “happenstance of geography” shows up in a comparison of Collie’s case to the one Benny Herrera’s family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collie’s case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.
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Tuesday, August 25, 2020
Which circuit is the worst on qualified immunity?
You may have thought it was the 11th... but it’s the 5th actually. We aren’t far behind, according to this interesting Reuters report. And the best is the 9th Circuit. But the disparities is a good reason to abolish the doctrine altogether. Here’s a small portion from Reuters:
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14 comments:
I think the most ridiculous aspect of the qualified immunity issue is how, if the district court denies to apply immunity, the police get an automatic interlocutory appeal.
As a result, even in cases where there is no immunity, these cases take many years to prosecute, and will necessarily involve a circuit court appeal. And because the cases are difficult to prosecute and take a long time to pay out, it reduces the availability of lawyers willing to take on these cases.
Very nice to see Paul Hughes mentioned here. He is quite possibly the best appellate attorney in the country.
Now do Absolute Immunity, prosecutor’s best friend. After judges, that is.
Dirty little secret of judges appointing cronyies as receivers.Is there an inspector general?
Blake was a violent guy. Prior arrest for pulling a gun at a bar while drunk, gun found in his car. Prior domestics.
Fast forward to the present, the guy is wanted for sexual assault and his family calls 911 on him for apparently another reason. Police get there and try to tase him to take him in, fight with him, doesn't work. Now he walks to his car ignoring police. Knife found in floor of car, exactly where he was headed when shot.
Query: what should police have done?
Let him enter the car with the knife and drive away (likely drunk) with his kids?
It may just be me, but the only real option i can see is a chokehold, which everybody apparently wants to ban.
What should the police have done?
You're right. No other option but to execute him.
Except that the police didn't execute him; he's still very much alive. So maybe try answering the question: What should the police have done?
The officer did his level best to execute him. Seven shots in rapid succession into his back? He wasn't trying to disable him. I doubt the protocol is "if taser fails, you're free to kill." Whether or not the first shot was justified as a means of disabling is worthy of debate on the facts presented. But shots two through seven - without waiting to see whether the first or previous shots produced the desired effect - seem, to this observer (barring additional facts), to have been clearly excessive.
“Ignoring police”. Really. That’s an option? Maybe what the police should have done is have some physical requirements that would enable them to be able to physically command a situation without choking someone to death or shooting them in the back.
323
Was a single shot justified based on what we know? If not, what should police have done.
From what i know about police use of force policy, police are trained that once they decide using deadly force with a handgun is justified (due to an imminent threat), to fire multiple shots in succession until the threat is neutralized. The reason is that officers often miss, and also that a single shot often will not stop a person from whatever they were doing.
Only 4 of the 7 shots hit Blake.
@731:
Have you considered that the training might be wrong or even leading to illegal conduct? The people that put forward this "they're trained to do it this way" argument seem to imagine that the training occurs in a vacuum, that it is de facto correct, and that it ends the discussion. It does not. If, in fact, this is about training, then the higher ranked cops responsible for the training should be held criminally responsible for the wrongful conduct of the trainees.
Imagine if a trucking company trained its drivers to drive in excess of the speed limit, a string of deadly accidents followed, and the defense was "the drivers were trained to drive this way." What do you think would follow?
Absolutely it is possible that the training/policy could be incorrect. But I personally dont believe the "fire multiple shots in succession" policy is wrong.
The big question here is the whether the officers application of existing policy was correct. Most imprtantly:
Did Blake present an imminent risk of death or great bodily harm to another (necessary to justify deadly force)?
AND
If there was such an imminent risk, was there a reasonable course of action the officer could have taken short of shooting Blake?
What say you about those questions... nothing?
OK liberal white defense attorneys in your comfortable armchairs driving your Porsche/Mercedes/Tesla’s. Here is the real scenario:
Police officers get call from dispatch to a domestic violence call and are advised there is an open warrant for the suspect for felony sexual assault on a minor and domestic violence. Police officers who are responding now have in their mind that they have an arrest to make because there’s an open warrant not any type of de-escalation for the most part since they are now court ordered by a judge to arrest this person on a felony warrant and have no duty to retreat or can allow him to walk away. Arrive at the scene to find him possibly inebriated and attempt to take him into custody giving loud verbal commands whereupon he resists and non-lethal Taser is deployed twice and fails. Continue to give loud verbal commands and advise he is under arrest and continue to walk away from police talking about retrieving a weapon in the car. Car has minor children in it and defendant is now inebriated and failing to follow commands and has an open warrant and has now escalated the situation to deadly force because of the knife and verbally and physically displayed threats to the officers and the children as well as having the open warrant. Continue to give loud verbal commands and advise under arrest and continue to walk away from police talking about retrieving a weapon in the car. More loud verbal commands are given and ignored continuing to grapple/Grasp push officers away and large knife on floorboard. Drunk man with warrant now has huge Bowie knife and will/may attempt to either kill the children in the back or the officer or drive away. They have a duty to now prevent this. Let’s talk about police training now. I cannot believe how many supposedly educated people keep saying why didn’t they shoot him in the leg or why didn’t they shoot him in the arm why didn’t they wound him? Because in a deadly force situation you should center mass to kill until the threat is down. This is not the Wild West trick shot show. Police do not shoot out tires and they do not shoot people in the leg foot elbow arm or anywhere else to wound. Most of you armchair attorneys have never been in a gun fight nor in a high adrenaline situation with your life on the line where fight or flight kicks in. Watch some actual videos and you’ll see that the reason police are trained in this manner to shoot center mass is because under extreme pressure and adrenaline it is extremely difficult to shoot anything accurately and you have to go for the target of opportunity and the largest target available which is center mass. So maybe he didn’t need to shoot him seven times but if the threat was not down you are trained to continue shooting until the threat is completely down not to shoot once and check him to see if he still going to stab you. No one minds a lively discussion but some of you liberals need to be put in a real life situation with your life is on the line to understand these type of situations. So think about this from your gated community behind your security cameras locked doors and heavily policed neighborhoods.
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