Qualified Immunity

[Deanimator]

The recent attempt by the Norfolk PD to enforce clearly invalid preempted local laws raises the question of qualified immunity for police engaged in such activity.

I assert the following:

1. Since the arrest was for a law clearly invalid on its face, it was a false arrest.
2. Since the issue of preemption is one of considerable publicity in the Commonwealth of Virginia, the arresting officers knew or should have known that the law they were enforcing was facially invalid.
3. Since ignorance of the law is typically not a defense to prosecution, the enforcing officers committed false arrest, both in a criminal and civil context, as well as battery to the victim.

Are there any applicable examples which show qualified immunity being pierced when police engaged in a false arrest and battery knew or should have known that their actions were unlawful and or tortious?

I've seen people cite in defense of the Norfolk officers that "there are too many laws for them to know". I'm unaware of any such defense prevailing in the case of a non-law enforcement person's defense in a criminal or civil trial. Were that defense to be successful, would that not raise very serious equal protection issues? Nevermind the incredible situation of non-police being required to know ALL the law on pain of prosecution, but those charged with the enforcement of that law being held to a LOWER standard.

This is a very serious issue, as other states also have preemption laws. Here in Ohio, the Mayor of Cleveland recently ordered his police to enforce a preempted "assault weapon" ban. He was directly defied by the police union, which ordered its members to ignore any such order.

Clearly, there are high stakes for everyone involved.

 

[brerrabbit]

This would be a hard one to base in law totally. Generally there is no dispute that many of the local laws are invalid when the authority regarding those laws held by the state, not the locals

It then starts becoming a bit of opinion because of the unwillingness of many to try LEO for breaking state law of which they are guilty by their own words.

While I could also say, as you have, ignorance of the law is no excuse. The problem ultimately devolves into the local lawmakers violating state law, and they are the ones who need to be held ultimately accountable.

But then again there does need to be a reasonableness standard. A level of accountability for the LEO also for enforcing laws that he knows or reasonably should know are against state law or the constitution.

 

[Deanimator]

While I could also say, as you have, ignorance of the law is no excuse. The problem ultimately devolves into the local lawmakers violating state law, and they are the ones who need to be held ultimately accountable.

Clearly BOTH are responsible, but in different contexts. The City of Norfolk was obviously in violation of state law when it passed the gun ban contrary to preemption. It could also be said to be derelict in failing to properly train its police, although one could quite plausibly argue that since the city WILFULLY enacted the statute, they would hardly train the police to NOT enforce it. It was an act of COMMISSION rather than OMISSION.

On a practical level, sueing the city has virtually no effect, if as in the case of Mayor Frank Jackson of Cleveland, the city expresses a desire to INTENTIONALLY violate state law by enforcing a facially invalid preempted local law. In that case, the city doesn't care. It's not their money. They can just raise taxes, at least until the public at large revolts and votes them out of office. In the extant case, the question is whether subsequent statements by spokesmen for the City of Norfolk were sincere in their claims that violation of the preemption statute(s) was merely unintentional.

What litigation against the individual officers does is deter them from acting unlawfully to the detriment of the public at large. Clearly this was at work when the Cleveland FOP chapter instructed its members to ignore Mayor Frank Jackson's unlawful order to enforce the preempted Cleveland "assault weapon" ban. A city can pass all of the unlawful or unconstitutional laws it wants. If nobody is willing to risk their freedom or their assets to enforce them, they're just an empty gesture. Punishing judgements against the officers involved would probably provoke a similar response from police union officials in Norfolk. Even if they didn't, the individual officers would think long and hard about enforcing such laws to no benefit and great cost to themselves.

 

[oobray]

If the law is still on the books then the police can arrest for it. For example, Texas has a law still on the books against homosexual sexual intercourse. Despite the fact that the US Supreme Court has ruled this unconstitutional. So, a LEO could arrest someone for this even though the sup.crt has ruled on it, and the LEO has done nothing wrong, legally.

 

[Deanimator]

If the law is still on the books then the police can arrest for it. For example, Texas has a law still on the books against homosexual sexual intercourse. Despite the fact that the US Supreme Court has ruled this unconstitutional. So, a LEO could arrest someone for this even though the sup.crt has ruled on it, and the LEO has done nothing wrong, legally.

Are you SURE it's legal?

What you're saying is that if say, Mississippi, still has an anti-miscegenation law on the books, a mixed couple can be arrested under it? I kind of don't think so. I'd need to see some case law to believe that. That would imply that the police could do this over and over again, and it wouldn't even be harassment, since you contend that it's ok since it's "still on the books".

Of course in Virginia, there is state law invalidating almost all local gun control laws. It's also a matter of common knowledge, and not at all obscure. I contend that the cops knew or should have known what they did was wrong.

 

[SWMAN]

"While I could also say, as you have, ignorance of the law is no excuse. The problem ultimately devolves into the local lawmakers violating state law, and they are the ones who need to be held ultimately accountable."

The City Attorney and the City Council should be investigated for criminal violation of civil rights by the VA AG. They knew or should have reasonably know that the preemption law prevailed over any law they passed violating preemption.

Any attempt to criminalize the police would only be blocked by the City Attorney and City Council. Obviously, if the police are criminally libel for civil rights violations in this instance, guess who is next?

 

[Regolith]

As far as I'm concerned, a person who enforces the law is NOT above the law. That means false arrest charges get to carry the same punishments as a kidnapping charge. And the officers who perpetrate the act should be thrown in jail.

It really does make me sick, and frankly scares me, when I hear about cops committing what would normally be a felonious act and getting off with a slap on the wrist (i.e. short suspension) or nothing at all. Last I checked, this was a land of laws, not a land where men get to do whatever the hell they want because they've got a badge.

And no, this isn't cop bashing. I'm not saying every cop does this, or anything else like that. I'm merely suggesting that they should get held to the same standards as the rest of us, and that sometimes it doesn't seem that they do. The only time they should get to legally break the law is while participating in an authorized sting operation. And that's it.

 

[DKSuddeth]

If local law enforcement are enforcing laws that have been pre-empted, they are still following their local jurisdictional policies set forth by city councils. Therefore, according to judicial precedent somewhere (I don't have time to search the caselaw right now), the police are not liable for any damages or violations, it would be the city itself you have to go after.

 

[Deanimator]

If local law enforcement are enforcing laws that have been pre-empted, they are still following their local jurisdictional policies set forth by city councils. Therefore, according to judicial precedent somewhere (I don't have time to search the caselaw right now), the police are not liable for any damages or violations, it would be the city itself you have to go after.

I'd want to see the caselaw. That implies that not only if Jim Crow laws were STILL on the books, but if NEW Jim Crow laws were passed, the police could enforce them with impunity, up to and including the use of lethal force.

Hypothetical: If Norfolk passed a facially unconstitutional law requiring all Blacks to carry passes signed by a White employer in order to travel within city limits during daylight hours and imposing a dusk to dawn curfew for Blacks ONLY, could the Norfolk police not only enforce that law, could they use lethal force against any Black person who resisted false arrest under it?

Hypothetical: If Seven Hills, Ohio passed a facially unconstitutional law requiring all Jews to wear a yellow star of David, and forbidding them to own property or work in the professions, could the Seven Hills PD enforce that law by any and all means? Since the determining factor seems to be whether there is a law on the books, are there ANY limitations on the means and methods by which this law can be enforced, so long as there is a corresponding law authorizing those means and methods?

 

[Bubbles]

The City Attorney and the City Council should be investigated for criminal violation of civil rights by the VA AG. They knew or should have reasonably know that the preemption law prevailed over any law they passed violating preemption.

IIRC the local governments in the Norfolk and VA Beach regions have attempted to violate the preemption statute many times in the last few years, and they have been slapped for it. So yes, they definitely should have known given recent history that, outside of hunting, they have no authority to pass any regulation regarding firearms.

 

[Deanimator]

IIRC the local governments in the Norfolk and VA Beach regions have attempted to violate the preemption statute many times in the last few years, and they have been slapped for it. So yes, they definitely should have known given recent history that, outside of hunting, they have no authority to pass any regulation regarding firearms.

I have similar recollections.

I wonder if the responsible parties could be charged with conspiracy.

 

[DKSuddeth]

Hypothetical: If Norfolk passed a facially unconstitutional law requiring all Blacks to carry passes signed by a White employer in order to travel within city limits during daylight hours and imposing a dusk to dawn curfew for Blacks ONLY, could the Norfolk police not only enforce that law, could they use lethal force against any Black person who resisted false arrest under it?

Legally, it's been upheld that police acting within their assigned policies are not liable, but that the city who passed such ordinance are the responsible parties. If police chose to actively enforce such policy, you would not see an officer held liable for such action. The police are not enforcing their own laws, but that of the legally elected representatives of their jurisdiction. Any suit for damages must be filed against those that enacted the unconstitutional law. The USSC assumes, practically demands, that any violation of civil and constitutional rights be remedied through the courts, at their discretion.

Hypothetical: If Seven Hills, Ohio passed a facially unconstitutional law requiring all Jews to wear a yellow star of David, and forbidding them to own property or work in the professions, could the Seven Hills PD enforce that law by any and all means? Since the determining factor seems to be whether there is a law on the books, are there ANY limitations on the means and methods by which this law can be enforced, so long as there is a corresponding law authorizing those means and methods?

That is exactly what that means. If Seven hills OH legislated that no blacks could own property, the first black to be denied would HAVE to file suit against Seven Hills, not any agency or LEO organization that stopped him/her from owning said property.

 

[brerrabbit]

http://en.wikipedia.org/wiki/Qualified_immunity

link to wiki article about qualified immunity.

LEO's are not shielded by qualified immunity in cases where they reasonably should have known that an action was unconstitutional.

If Seven hills had passed such a law prohibiting blacks from owning property or that jews must wear a star,, and an LEO decided to enforce it, he is also liable for damages as is the municipality.

 

[Deanimator]

That is exactly what that means. If Seven hills OH legislated that no blacks could own property, the first black to be denied would HAVE to file suit against Seven Hills, not any agency or LEO organization that stopped him/her from owning said property.

And if a Seven Hills police officer maimed or killed a Jew who refused to wear a yellow star, or refused to surrender his property or business? Not accountable for his actions?

Like I said, I'd need a real cite before I believed that.

 

[Deanimator]

LEO's are not shielded by qualified immunity in cases where they reasonably should have known that an action was unconstitutional.

If Seven hills had passed such a law prohibiting blacks from owning property or that jews must wear a star,, and an LEO decided to enforce it, he is also liable for damages as is the municipality.

And that's the only sensible thing to do.

The alternative:

North Royalton, Ohio decides it doesn't want any Mormons. It passes legislation forbidding Mormons to live, work, do business or own property in North Royalton. The police use physical force, perhaps lethal force to evict or dispossess any Mormons found in North Royalton. Mormons sue to invalidate the law(s) and for damages from its enforcement, which remain on the books (probably for years) pending a court decision. In the meantime, the North Royalton police continue to use force to enforce the law, immune from suit, since it's "still on the books". North Royalton, more concerned with a Mormon-free environment simply drags out the court cases and eventually eats any judgements. During this process, Mormons are intimidated from living in North Royalton, the underlying goal of the legislation.

 

[brerrabbit]

Also, in the case of qualified immunity, the burden is on the official to prove he has that immunity, it is not the plaintiff's burden to disprove it.

ref
Harlow v. Fitzgerald

 

[Deanimator]

Also, in the case of qualified immunity, the burden is on the official to prove he has that immunity, it is not the plaintiff's burden to disprove it.

ref
Harlow v. Fitzgerald

Thanks for the reference.