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Spats McGee’s Primer on Civil Rights Litigation and Qualified Immunity

Discussion in 'Legal' started by Spats McGee, Jul 25, 2017.

  1. Spats McGee

    Spats McGee Moderator Staff Member

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    Spats McGee’s Primer on Civil Rights Litigation and Qualified Immunity

    In the weeks and months that followed the shooting of Michael Brown and the riots in Ferguson, Missouri, anyone who watched the mainstream media news could have easily come away with the impression that police officers everywhere had suddenly gotten trigger-happy. As a result, one of the internet discussions in which I frequently found myself embroiled during that time period involved the question of “why police aren’t held accountable.” This invariably involved a discussion of qualified immunity, why the police have it, and whether it applies to private citizens who carry concealed firearms. The short answer to the second part is easy. No. Private citizens carrying firearms do not get qualified immunity. The answer to the first part is somewhat more complicated.

    Before I launch into that discussion, let me lay out my caveat and my bona fides. My caveat: I’m a lawyer, but I’m not your lawyer. What follows is commentary based upon my education and experience, but it is not legal advice. If you need legal advice, go hire a lawyer licensed in the applicable jurisdiction, and buy some.

    My bona fides: I am an attorney and I’ve been practicing in litigation for almost fifteen years as of this writing. To be more specific, I was a civil rights defense lawyer (among other things) for about 10 years of my career. When someone asked me what I did, I said, “You know what a civil rights lawyer is?” He invariably said, “yes,” and I would respond, “I’m the other guy.” Whenever there was a claim that the police or a government official had violated someone’s rights, I was one of the lawyers who got called out to defend it. One of the first questions in my head was always, “Is this a QI case?”

    I: Overview:

    In order to understand qualified immunity, you have to put it in context. It’s one of a number of immunities out there. Some immunities are absolute, but qualified immunity is not. In this context, “qualified” means “limited.” Why do we have these immunities? Generally speaking, it’s because we as a society have historically believed that there are some functions that a person needs to be able to perform his or her job duties without fear of reprisal in the form of litigation. For example, judicial immunity is absolute. If a criminal court judge had to worry about being personally sued every time he sent someone to jail, you can bet dollars to doughnuts that he’d send a lot fewer people to jail than without that immunity. The same holds true for prosecutorial immunity.

    Qualified immunity works a little differently. It’s a limited immunity, a qualified one. It is a framework designed to provide “ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In short, qualified immunity protects officers who make reasonable judgments, even if mistaken. It protects those who occasionally and inadvertently cross the constitutional line. It does not protect those who intentionally violate the constitutional or statutory rights of others, those who do so repeatedly, or those who turn a blind eye to such actions.

    Stop and think about this: Do you really want officers worrying about the contours of Fourth Amendment jurisprudence when things go south on a 3 a.m. traffic stop? The reality of our society is that if your job involves putting people in handcuffs: (1) some of those people will take umbrage at your attempts to handcuff them; and (2) you will eventually be sued for it. Qualified immunity recognizes that officers make split-second, life-and-death decisions, and that officers have to have some confidence that they can make those decisions at that moment, without having to hesitate for fear of litigation. Hesitation can get an officer killed.

    In the civil rights context, you’ll see cases that name defendants in ways like “John Smith, in his individual capacity and in his official capacity as a police officer for the City of Mammoth Springs, Missouri.” In actuality, that names two defendants: John Smith (the individual) and Mammoth Springs, Missouri (which is "John Smith in his official capacity"). I call it “a suit against the badge.” The political subdivision which issued him the badge is one defendant, subjected to liability, and its policies are in question. This is not totally unlike the practice of suing an employer for the acts of its employee. For example, if a truck owned by the (fictitious) company, Reckless Beer, hits my car, I’m likely to sue Reckless Beer. I’ll allege that its driver was negligent and that the driver’s negligence should be passed along (imputed) to the company under a doctrine called respondeat superior. While that doctrine doesn’t apply to those entities which employ police officers, the practice of suing both is still employed. It gives the plaintiff a chance at recovering from the employing party (like a city), which will have much deeper pockets than an individual officer.

    In Parts II and III of this article, I’ll lay out some of the history behind qualified immunity and explain a little bit about municipal liability. Both of those are necessary to understand qualified immunity, which will be more fully explained in Part IV.

    II: History:

    Historically speaking, there is a doctrine called “sovereign immunity.” In simplest terms, it means “you can’t sue the king.” Then Congress enacted the Civil Rights Act of 1871. One part of that Act is now known as 42 U.S.C. § 1983. Section 1983 is a “conduit” statute which allows lawsuits against government officials. It reads as follows:

    42 U.S.C.A. § 1983.

    In other words, any government actor who deprives another person of their constitutional or statutory rights “under color of law” may be sued. That means that anyone who claims that their rights were violated under any of their rights enumerated in the Bill of Rights can claim “Mr. Jones, acting in his capacity as a government official, violated my rights under X, Y, and Z” and file suit. Most States have analogous civil rights provisions in their codes, so an action under 42 U.S.C. § 1983 is often accompanied by at least State law constitutional and common law claims. For example, a Plaintiff who brings a Fourth amendment excessive force claim will often bring State constitutional and battery claims.

    So there’s a federal statute that makes “a person” liable to another person for constitutional or statutory violations. . . . Sure enough, it wasn’t long before some bright lawyer argued on behalf of a city that “my client isn’t a person.” If I had worked in civil rights litigation prior to 1978 and represented some government branch, I would have argued the same thing. The argument worked for a while, but in 1978, the Supreme Court of the United States (“SCOTUS”) said:

    Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978).

    This all means that a potential plaintiff with § 1983 in play can sue: (1) the acting official; and (2) the political subdivision for whom #1 works. If you’ll look at the names of ordinary cases, you’ll see things like “Smith v. Jones” or “City of Velvet Ridge v. Snotnose Development Company.” If you read the style of civil rights cases, though, you’ll see that the named Defendants often include both official, government entities (like counties and cities) and an individual Defendant. Things like “Joe Smith v. Mike Johnson, acting individually and in his official capacity as police officer for the City of West Fencepost, Arkansas.” As noted above, this the legal form for suing both an individual and an employing government agency. From a purely practical (and the lawyer’s) perspective, the employing body is the big fish. Given a choice between: (a) judgment against some guy who makes $35K per year, with 3 kids and an ex-wife; or (b) a city with a multi-million dollar budget and risk coverage, who would you rather hook for a judgment? A judgment doesn’t mean anything unless you can collect.

    There’s a catch, though. (There always is.) In order to explain it, I need to make sure that everyone understands a little bit about damages. There are two kinds of damages in the legal world: compensatory and punitive. Compensatory damages are those damages designed to compensate the Plaintiff, to “make the plaintiff whole,” and they include the (alleged) constitutional or statutory violation, lost wages, medical bills, pain & suffering, and the like. Punitive damages are those damages designed to punish the defendant and keep him from continuing to do whatever bad act got him sued. They’re usually calculated in multiples of the compensatory damages, so a $100K compensatory judgment may have another $250K in punitive damages tacked on. So what’s the catch? Municipalities are immune from punitive damages, that’s what.

    City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).

    The line of reasoning by SCOTUS in City of Newport revolved, in part, around the ideas that: (1) punitive damages, by definition, are intended to punish a tortfeasor; and (2) if punitive damages against the municipality itself are allowed, the ones who are ultimately punished are the taxpayers, not the individual bad actor.

    So we’re left with a situation in which there are multiple claims and defendants, but each is entitled to different defenses and is exposed to different, but overlapping damages. In Kentucky v. Graham, 473 U.S. 159 (1985), SCOTUS delineated the difference between individual and official capacity suits: “Personal-capacity suits seek to impose personal liability upon a government official . . . . [while official capacity suits] represent only another way of pleading an action against an entity of which an officer is an agent.” In other words, possible defendants include:

    1. The employing subdivision – The employing subdivision is subjected strictly to exposure for compensatory damages; but can only be held liable if a “policy, practice or custom” led to the constitutional deprivation. See Kentucky v. Graham, supra.

    2. The individual Defendant – The individual defendant faces exposure to both compensatory and punitive damages, but may be entitled to qualified immunity. The individual defendant may also be unable to pay for punitive damages.

    With all of that straightened out, let’s take a look at municipal liability (which can also apply to States, agencies, counties, and the like), and then individual liability, which is where QI plays a role.

    III: Municipal Liability:

    I’m not going to spend a whole lot of time on municipal liability, because it is pretty straightforward. First of all, the principle that an employer is responsible for the acts or omissions of its employees, known as respondeat superior, does not apply in constitutional litigation. The Plaintiff must turn to "policy, practice or custom" in order to set the hook on a governmental employer.

    Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978).

    Under Monell, a governmental subdivision cannot be held liable for the actions of one of its employees solely because that employee is a one-time tortfeasor. A plaintiff has to be able to show: (1) that a policy, practice or custom of the governmental subdivision; (2) was the moving force behind; (3) a constitutional deprivation. Realistically, nobody with a lick of sense will have a written policy that says, for example, “Search homes without warrants whenever you feel like it.” That being the case, if a Plaintiff can show some widespread pattern of “searching homes without warrants,” to use the same example, and that supervisors and command personnel knew about it, then he may be able to make out a “practice or custom” claim. It’s not just about the written policies. On the other hand, if one officer is going out and searching homes without warrants just for the hell of it, and nobody else in his agency knew about it, it’s going to be very hard to make out a practice or custom claim. (It’s also a quick way for an officer to find himself without: (a) qualified immunity; (b) the services of the city attorney’s office; and (c) a job.)

    Above, I mentioned the practice of naming both an individual officer and the employing subdivision (like a city) as defendants in a case. In doing so, the Plaintiff is claiming that John Smith should be held personally liable for whatever rights of the plaintiff were allegedly violated, and that the employing party has some policy, practice, or procedure that has led to the violation of the plaintiff’s rights.

    If a lawsuit names a natural person only in their official capacity, then the individual’s assets are not at stake. The other defendant is John Smith, individually. In this case, John Smith (in his individual capacity) may be entitled to Qualified Immunity. Municipalities, in and of themselves, do not get QI as a defense. It’s an “individual capacity” defense.

    Given those parameters, city attorneys’ offices spend a great deal of time drafting policies and procedures that meet constitutional muster. That’s how they win lawsuits. They put together constitutionally sound policies, and then use them to fight the “policy, practice or custom” fight.

    Mind you, it is possible that a court could find: (a) that a violation of rights occurred, but (b) that the violation could not have been the result of the city’s policies, practices or customs. In that case the city gets out, and the only remaining questions are: (1) whether to hold the individual officer liable; and (2) if so, for how much money?

    IV: Individual liability:

    Qualified immunity recognizes that some folks would never get to work if they had to go to trial every time they get sued. Look at police officers. There are only two kinds of officers in this world: those who have been sued and those who will be. Nonetheless, society needs for police officers to be able to work rather than spending all of their time defending themselves against lawsuits, some of which will be frivolous. In order to foster this, and as an “ideological descendant” of the concept of sovereign immunity, our courts have recognized that many municipal officers are entitled to qualified immunity.

    So what are the contours of QI? First of all, understand that QI is more than an immunity from liability. It is an immunity from the burdens of trial. Up until Pearson v. Callahan, 555 U.S. 223, 236 (2009), a court had to follow a pretty strict analytical framework:

    a. Figure out if there was a constitutional violation. If not, stop there, no personal liability for defendant.

    b. Figure out whether the right allegedly violated was clearly established at the time. If not, stop there, no personal liability for defendant.​

    In other words, pre-Pearson, the two-step approach had to be followed, and had to do so in the right order. However, Pearson relaxed the order a bit and pointed out that it really doesn't matter in what order the trial court answers the questions: (a) was there a constitutional violation?; and (b) was the right that was allegedly violated clearly established at the time?

    As you might imagine, then, the first step for any defendant is to show that the Plaintiff’s rights were never violated. Makes sense, right? If there was no constitutional violation, the lawsuit’s over.

    What if there was at least an arguable constitutional violation, though? That’s when the lawyers really start looking hard at qualified immunity:

    Burton v. St. Louis Bd. of Police Comm’rs, 731 F.3d 784, 791, (8th Cir. 2013)(internal citations omitted)

    All of that means that, even if there’s been a violation of rights, if the defendant officer can demonstrate facts sufficient to get qualified immunity prior to trial, judgment in his favor will be granted. Basically, this involves: (1) doing discovery; (2) taking depositions; and (3) writing a Motion for Summary Judgment. In simplest terms, an MSJ is a motion that says, “Judge, based on these undisputed facts, we win, no matter what else the other side could prove.” It’s not automatic that a police officer will get qualified immunity. The officer has to demonstrate that he’s entitled to it.

    The exact contours of the QI defenses will vary from right to right, as the lawyers try to demonstrate that: (1) there was no constitutional violation; or (2) that the right was not clearly established at the time of the alleged violation. With respect to the first prong of this analysis, if there was no constitutional violation (either because the Plaintiff didn’t actually have the right he says was violated, or because that right wasn’t violated), neither the city nor the officer will be held liable. As far as the second one goes, if the plaintiff’s claim is based on vague or newly-developed caselaw, I would argue that even if the plaintiff has the right which he claims was violated, and even if it was violated, it wasn’t a clearly established right. For example, as of this writing, there is a fairly recent case from SCOTUS which says that a DWI defendant has a right to refuse a blood draw unless there’s a warrant, and that the State cannot criminalize that refusal. If there was an officer who charged a defendant with Refusal to Submit to Chemical Testing under a blood-draw scenario, and was therefore sued for it, I would argue that the caselaw was only recently established. Hence, the constitutional or statutory right was not "clearly established" at the time of the alleged violation.

    That’s one route to qualified immunity. The other, particularly in connection with excessive force claims under the Fourth Amendment, is simply a question of reasonableness. The Fourth Amendment doesn’t prohibit all searches and seizures, just the unreasonable ones. In a recent case, the 8th Circuit Court of Appeals, in ruling on the claim of qualified immunity in an excessive force case, put it this way:

    Ellison v. Lesher, No. 13-3371, 2015 WL 4645667, at *4 (8th Cir. Aug. 6, 2015)(internal citations omitted)

    So what does all that mean? In short: “Look at the situation from the perspective of the officer on the scene and ask, ‘Were the officer’s actions reasonable?’” When defending an excessive force case, the officer’s attorney will often use affidavits, demonstrating those facts necessary to support his claim that the officer’s actions were reasonable. That would be things like:

    · It was a very cold night at approximately 28* Fahrenheit.

    · As I approached the Plaintiff, I noticed that he was sweaty, in spite of the temperature.

    · I directed the Plaintiff not less than 4 times to remove his hands from his pockets.

    · The Plaintiff did not remove his hands from his pockets.

    · I observed that the Plaintiff’s right jacket pocket was much larger than his left one.

    · Based on my training, observations and experience, I believed that the plaintiff had a weapon in his right pocket.

    It’s important to understand that all of the facts in support of a Motion for Summary Judgment (the “based on these, we win” motion) have to be undisputed. If the judge decides, based on these undisputed facts, that the officers' actions were reasonable, then QI will be granted, and we're done (unless and until a notice of appeal is filed). However, if there are “genuine issues of material fact” (real disputes, not merely theoretical, about facts which could alter the outcome of the matter), then summary judgment will be deemed inappropriate and then we’re off the races with a trial. The facts developed at trial may then be used to support a claim of QI. Using the facts laid out above, for example, the Plaintiff might dispute whether he removed his hands from his pockets. If the jury finds that he did not do so, that becomes a fact that the police officer may use in support of his claim for immunity.

    If the Plaintiff claims that the facts listed above are in dispute, such as whether he refused to remove his hands from his pockets, then a trial may be appropriate, so that a jury can determine whether he actually removed his hands from his pockets. On the other hand, if all of those facts are undisputed (and this is where video recordings can be incredibly helpful), then the court can find that the officer’s actions were reasonable, and grant judgment to the defendant.

    IV: Conclusion

    When you first hear the term “qualified immunity,” it may sound like one of those arcane legal doctrines that shouldn’t have any application in our modern world. As a guy who has spent a large part of his career beating the QI drum as long and as loudly as I can, I’d have to disagree with that. It’s a doctrine that allows our police officers to do their jobs with some measure of assurance that nobody can come and take their homes as long as they abide by the law as they know it, keep up on legal developments, and behave reasonably.
     
    Last edited: Jul 26, 2017
  2. hdwhit

    hdwhit Member

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    Thank you. Very easy for laymen like me to understand.

    I also like the example citation that included the City of Velvet Ridge ;)
     
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  3. RPRNY

    RPRNY Member

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    Thank you.

    "I'm the other guy." Love it!
     
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  4. Kleanbore

    Kleanbore Moderator Staff Member

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    Extremely well done.
     
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  5. slide

    slide Member

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    I learned a good deal. Thanks for posting.
     
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  6. equin

    equin Member

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    Thanks!
     
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  7. Panzerschwein

    Panzerschwein member

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    Very cool! I'll admit, the name "Spats McGee" is not what immediatly comes to mind when I think of an attorney, but hey, "the name doesn't make the man, the man makes the name" as it were! :) Well done!
     
  8. Officers'Wife

    Officers'Wife Member

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    Interesting reading sir, thank you.
     
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  9. Mike Kerr

    Mike Kerr Member

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    I am late to the thread but I really think you deserve more thanks because this Post was informative and really appreciated.
     
  10. old lady new shooter

    old lady new shooter Member

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    Fascinating. Thank you so much for sharing your expertise in such a clear and detailed manner. :)
     
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  11. Arkansas Paul

    Arkansas Paul Member

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    Thank you sir.
    It is nice to get such input from someone who spent years in the field.
     
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  12. RangerHAAF

    RangerHAAF Member

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    To make the police forces accountable "qualified immunity" must be removed from the law and allow for the direct prosecution and civil liability of police departments when they arrest or kill citizens exercising their rights.
     
  13. RangerHAAF

    RangerHAAF Member

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    I've stated my belief, there are ways to follow the Constitution and make sure the cops follow the laws and rules they are charged to enforce. Lately, lawsuits and public disclosure are the most effective means. This has conversely affected the efficacy of "proactive" policing vs civil rights violations, seen in such places like Chicago and Baltimore.
     
    Last edited: Jan 3, 2018
  14. Frank Ettin

    Frank Ettin Moderator Staff Member

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    You might have stated your beliefs, but your beliefs as stated make it clear that you don't understand the Constitution or the law. The reality is that, as Spats McGee explained, qualified immunity is the law and is consistent with the Constitution.

    The point is that Qualified Immunity protects an LEO (or certain other government officials) only when and if they have acted properly under the law. It's much like the protection from criminal and civil liability a private citizen has when he uses force in justified self defense. Indeed, the laws of a number of States now give a private citizen express immunity from civil liability for his use of force against another -- if his use of force was legally justified.

    Much of the large body of case law which has developed around the doctrine of Qualified Immunity has been about defining what sorts of conduct is constitutionally permissible, and what sorts of conduct is not. And when an LEO has acted in a manner the courts have found to be constitutionally impermissible, he, and his agency, will have liability. And so, for example, a Chicago police officer was recently convicted of using excessive force in the shooting of two teenagers.
     
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  15. RangerHAAF

    RangerHAAF Member

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    Yes, that is what the "law" says but is entirely different in practical application, unless an average citizen has an extra $5000(base price for a criminal or civil trial in Atlanta) dollars laying around to hire a lawyer to argue "law" on his behalf. So as I said, believe whatever you want to believe because what's pontificated about in your threads is 180 degrees different in the real legal world and in courts, unless you're padded financially well enough to get your way. The "law" has a fiscal price most people can't or don't want to afford. PS, I read and understand the Constitution as well as the next non-lawyer; Just because something is "unconstitutional" doesn't mean it will be corrected in court, especially on a local level.
     
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  16. Frank Ettin

    Frank Ettin Moderator Staff Member

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    In other words you want to subject police and other public officials to liability without the necessity that they be shown through judicial process that they've not complied with the law? Where does the Constitution provide for that? Certainly a core principle of our system is that one may defend in court claims made against him.

    Furthermore, in a civil claim brought under 42 USC 1983 a successful plaintiff may be awarded attorney fees in addition to compensation for damages. A lawyer will usually take a 42 USC 1983 case on a contingency fee basis, i. e., he won't get paid unless the client wins. And funding doesn't seem to deter 42 USC 1983 claims. A great many get filed every year.

    And of course criminal charges brought under 18 USC 242 against LEOs or other public officials for deprivation of rights under color of authority (like the case I referred to in my prior post) are prosecuted on the government's dime.
     
  17. RangerHAAF

    RangerHAAF Member

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    Qualified immunity in Georgia protects the cops while they are on duty doing their jobs, fine but what about when they're not on duty and that same qualified immunity conflicts directly with the law, and to litigate that conflict requires being able to bring a civil action in court that requires a lawyer to do it. So, I'm saying that I don't put my faith in abstract legal and Constitutional platitudes that the majority of people will never confront or be confronted by. Oh yes, we've seen and read the stories but those stories are not really applicable to an average person.
     
    Last edited: Jan 3, 2018
  18. Kleanbore

    Kleanbore Moderator Staff Member

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    It's a Fourth Amendment thing, not limited to Georgia.

    The principle of Qualified Immunity relates only to issues involving the enforcement of the law--and in the context to the kinds of discussion we usually have here, to questions involving possibly unreasonable search and seizure, and to issues involving the deprivation of the Constitutional rights of citizens by persons acting under the color the law. as Spats point out in a later post, the actual scope is much wider.

    Your comment has nothing to do with Qualified Immunity.
     
    Last edited: Jan 4, 2018
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  19. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Since qualified immunity is part of the law, how does it conflict with the law? Do you have any idea what you're talking about?

    To litigate anything requires bringing a civil action, and, for best results, a lawyer. And litigation is how, under the law, we resolve disagreements. So if you claim to have been injured by the wrongful conduct of a public official and that public official denies having done anything wrong, the only way under the law, and considering the rights of both sides, is by litigation.

    Are you seriously suggesting that an LEO or other public official can't defend himself if you demand that he pay you money because you claim that he did something wrong. Isn't he entitled to due process?

    What "abstract legal and Constitutional platitudes"? This sort of litigation goes on everyday in the real world affecting the lives and property of real people.
     
  20. Officers'Wife

    Officers'Wife Member

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    I didn't read his statement that way, but then perhaps I'm using the wrong context.

    The focus of the law is to provide the illusion of justice via an adversarial system. Unfortunately, since the "weapon" of that system is, quite frankly, money where the citizen has only his bank account in law enforcement has the unlimited funds of the state that illusion becomes very much tattered.

    I remember when I was a girl, my dad had an employee that had served time for manslaughter. The local prosecutor first attempted to convince dad to fire the man since he didn't want "that kind" in his county. When dad refused it seem like every time the guy went into town he ended up in the county jail for, again quite frankly, made up offenses. I remember one particular case, when dad let him his pickup to go to town for parts. He was pulled over and charged with grand theft auto even though the truck had (obviously) not been reported stolen. Even though dad went to town to correct the matter he was forced to go to the courthouse and pay a filing fee to have the man released. In another case he was charged with armed robbery, even though his employment records showed that he was scooping corn with three other guys at the time of the robbery. He was forced to pay a bondsman and dad lost five hours of labor for four employees to appear has witnesses. Had it not been for dad willing to pay cold cash to maintain is sense of justice the guy would probably have" re-offended." Of course, no litigation could be filed against the prosecutor under the immunity doctrine. At what point was to process denied? Does the fact the prosecutor was voted out of office maintain that justice was served? Ipso facto what of the seven years he suffered under this litigation? Is there not a legal maxim that justice delayed is justice denied?

    The question of immunity, is far too complex for this venue. Most thinking people are going to have reservations on just how far they should be qualified. Especially since the historic perspective is that the main cause of the Constitution being ratified was the memory of a time when the rich and connected could define justice to their own benefit.
     
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  21. Kleanbore

    Kleanbore Moderator Staff Member

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    Where on Earth did that idea come from?
     
  22. Officers'Wife

    Officers'Wife Member

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    Hmm, let me see... that would be my sister that has been an attorney for almost 25 years now. Government has always been a balancing act between justice and the ability to function. With that balance justice is at best an illusion. As for adversarial... that goes without saying.
     
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  23. Kleanbore

    Kleanbore Moderator Staff Member

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    Nope. Throughout history, only a few governments have been interested in justice.

    But the discussion was about law.

    The classical description of the purpose of law in a society governed by the rule of law addresses the establishment of standards and rules of conduct; maintaining order; resolving disputes; and protecting liberties and rights.

    Nothing about "illusion" in that!

    The Constitution is the Supreme Law of the Land in this country. The particular subject at hand here has to do with hoe law enforcement properly operates within the constraints of that part of the Fourth Amendment, as incorporated by the Fourteenth, that protects citizens from unreasonable searches and seizures by the government. "Seizure", in this context, includes the detention and arrest of citizens, and also the use of force, by law enforcement officers in the performance of their duties..

    The subject of Qualified Immunity has to do in part with ensuring that law enforcement officers can effectively and fairly enforce the law without being subjected to frivolous lawsuits. Frank described that that in Post #22. As Spats posts out in a later post, the scope of QI is more broad than that.

    The constructs of the law have evolved significantly since the Constitution was ratified. To cite one very relevant example, the age-old Fleeing Felon Rule was materially changed in 1985, with Garner v. Tennessee (471 U.S. 1 (1985)).

    About that alleged time when "the rich and connected could define justice or their own benefit", Frank covered that one too, in Post #18.
     
    Last edited: Jan 4, 2018
  24. Spats McGee

    Spats McGee Moderator Staff Member

    Joined:
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    Location:
    Arkansas
    Apparently, I missed a bit of action on this thread.
    When police forces act outside the law, they can already be held accountable, on both an individual and institutional levels, even with QI in place.
    Precisely.
    I realize that this wasn't directed at me, but I can assure you that I've spent plenty of time in my career in "the real legal world." QI protects those gov't officials who act reasonably or within (at least arguable) Constitutional boundaries. It does not protect the plainly incompetent or those who knowingly violate the law. As Frank pointed out, many (if not most) civil rights cases are taken on a contingency fee basis, so a potential plaintiff may or may not have to come up with a retainer before filing.
    See above.
    What about when they're not on duty? What about when they're working off-duty gigs at a downtown nightclub, complete with badge and gun? What about when they're off duty and grocery shopping and they mistakenly think the store is being robbed? There's nowhere near enough detail in your question to determine whether QI would even apply. You really have to get down on a gnat's eye with details in Things Legal.

    QI is the law, and it's a matter of federal constitutional law. I'm not sure what this law is with which you think QI conflicts.
    It's more a matter of being a sovereign immunity thing. I mostly dealt with A4 matters, but it can be asserted in response to claims of violation of any constitutional or statutory right by a gov't actor.
    No, actually. As noted above. Another example might include an EEOC suit against a supervisor at a gov't agency. That would be a claim of violation of a statutory or constitutional right against an individual, who could then assert QI.
     
  25. Kleanbore

    Kleanbore Moderator Staff Member

    Joined:
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    Messages:
    8,840
    Post edited,
     
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