Iowa Supreme Court Thinks Things Are Too Tough For Bad Cops, Adopts Qualified Immunity Defense
from the can't-have-cops-worrying-about-violating-rights-when-they're-engaging-in dept
The Iowa Supreme Court has decided to lower standards for law enforcement officers in its state. The ruling [PDF] issued earlier this summer gives state officers the opportunity to dismiss lawsuits against them by asserting qualified immunity. Prior to this decision, there was no qualified immunity defense state actors could raise in court. They were actually forced to actually defend themselves in court, making it easier for plaintiffs' claims to survive an early motion to dismiss and bringing them closer to justice. (via Bleeding Heartland)
The case -- Baldwin v. City of Estherville -- involves an arrest for a crime that didn't exist. It involves driving an ATV through a city-owned ditch, something that's illegal under state law but not under the City of Estherville's laws. An arrest for something that wasn't actually illegal was followed by this lawsuit. It's a weird origin for a Fourth Amendment lawsuit, but the outcome makes holding officers accountable for their misdeeds much more difficult with the court's addition of qualified immunity to local government's litigation toolbox.
A lot of discussion of other states and their local immunity defenses -- as well as whether or not Constitutional cases are torts rather than strict liability issues -- leads the court to the following conclusion:
Accordingly, with respect to a damage claim under article I, sections 1 and 8, a government official whose conduct is being challenged will not be subject to damages liability if she or he pleads and proves as an affirmative defense that she or he exercised all due care to conform to the requirements of the law.
This brings the state in line with the federal standard. In other words, it lowers the state standards. Officers now only need to assert they were engaged in official police business (I'm very heavily paraphrasing here) when violating rights to sidestep being held personally liable for the rights violation.
This is unfortunate. Qualified immunity has created a system where officers routinely engage in rights violations secure in the knowledge that only the most egregious violations will be punished by courts. This standard varies from district to district and even obvious Constitutional violations can be overlooked if there's not a precedential case almost exactly on point for the court to look to when making its decision. Every so often a bright line will be drawn by courts, but that only applies to future cases where officers violated rights while engaged in [police activity X] during [exact time of day] involving exactly the same sort of police activity/rights violation as the "bright line" case. It's almost an insurmountable bar for plaintiffs to hurdle, which has resulted in a steady stream of unpunished rights violations.
The dissenting opinion [starting on p. 40] runs almost as long as the prevailing opinion. From the outset, Justice Brent R. Appel makes it clear qualified immunity is nothing more than a reward system for bad cops. The "standard" courts claim to hold government officials too is so low as to be tragically hilarious.
I begin by emphasizing that the policy-oriented federal doctrine of statutory qualified immunity does not provide a model for determining whether individuals are entitled to qualified immunity for Iowa constitutional torts. The federal doctrine of statutory qualified immunity progressively dilutes legal norms, embraces numerous false assumptions, fails to recognize the important role of juries in restraining government, and is inconsistent with important tenets of Iowa law.
Appel goes on to state that adopting this federal standard will make Iowa -- and its court system -- much worse, and much less likely to provide an avenue of recourse when rights have been violated.
We should not voluntarily drape our constitutional law with the heavy chains of indefensible doctrine. We should aim to eliminate fictions in our law and be honest and forthright on the important question of what happens when officers of the law commit constitutional wrongs that inflict serious reputational, emotional, and financial harms on our citizens.
And of all the places to give the government more ways to dodge accountability, Appel argues the Fourth Amendment (and its Iowa Constitution equivalent) is the worst place to do it. He goes Godwin to make his point.
The importance of effective enforcement of search and seizure restrictions on government was not lost on the generation of lawyers and judges who witnessed the collapse of the rule of law in central Europe in the 1930s. As Chief Nuremburg Prosecutor Justice Robert Jackson so eloquently opined after his return from his assignment in immediate postwar Germany,
"search and seizure rights are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government."
Qualified immunity is nothing more than an escape hatch for bad government behavior.
In short, when citizens suffer potentially grievous harms from unconstitutional conduct in violation of article I, section 1 or article I, section 8, we should require the officials who engaged in the unconstitutional conduct to bear the burden of the loss. We should not allow the officials who engage in unconstitutional conduct to respond to the prayer of the harmed citizen with, “Aw, tough luck. Tut tut. Bye bye.”
Here are the facts about qualified immunity. It's not needed and its absence won't result in thousands of law enforcement officers suddenly having to pay out of their own pockets for Constitutional violations.
A recent study by Professor Joanna Schwartz confirms what one might suspect, namely, that at least with respect to police officers, local governments almost always indemnify for settlements and judgments arising out of misconduct lawsuits. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 912 (2014). Specifically, the Schwartz study found that in the forty-four largest jurisdictions studied, police officers paid .02% of the over $730 million paid for misconduct suits between 2006 and 2011. In the thirty-seven smaller police departments included in the study, Schwartz found there were no officer contributions towards settlements and judgments during that time. In short, according to Schwartz, in many jurisdictions “officers are more likely to be struck by lightning than they are to contribute to a settlement or judgment in a police misconduct suit.” Id. at 914. The fact that officers are almost always indemnified undercuts one of the primary arguments in favor of the immunity doctrine—that without it, officers will be deterred from engaging in appropriate activities for fear of the financial consequences of a wrong decision.
Here's how Appel sums up his dissent:
Rather than follow the state’s motto, “Our Liberties We Prize and Our Rights We Will Maintain,” the majority follows an approach that suggests “Our Liberties Are Transient and Our Rights Are Expendable.”
[...]
The majority’s finding that the speculative overdeterrence of actions of officials is weighty while the risk of underdeterrence of unconstitutional conduct infringing on individual rights is not mentioned at all, suggests a results-oriented jurisprudence that favors government officials who inflict unconstitutional harms over citizens who endure them.
That's exactly how it works at the federal level and in states that have adopted this defense against liability. QI is a "Get Out of Litigation FREE!" card for government employees, and it has encouraged Constitutional violations far more than it has deterred routine police work.
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Filed Under: estherville, iowa, qualified immunity
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Standardless standards
OK, now I am confused. If they need to PROVE that they exercised all due care to conform to the requirements of the law how is qualified immunity so devastating? They need to prove it. What is the standard of proof here, the same as any defendant, beyond a reasonable doubt, or something lower? If it is in fact lower, then there is a significant imbalance in justice. If it isn't lower, then how are cops not required to know they laws they are paid to enforce?
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Re: Standardless standards
What about their qualified immunity on criminal charges?
Most of the complaints I have read about were levied upon law enforcement officers for their criminal actions, like punching someone in the mouth for no reason - stuff like that.
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>A defendant who pleads and proves as an affirmative defense that he or she exercised all due care to conform with the requirements of the law is entitled to qualified immunity on an individual’s claim for damages for violation of article I, sections 1 and 8 of the Iowa Constitution.
I don't see that this decision is limited to police officers. Violations of sections 1 and 8 of the Iowa Constitution would seem to be generally limited to things that are done by government, but maybe a creative lawyer could use this decision to apply immunity to average citizens? Wouldn't that make things interesting...
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Any fine is negligible when someone else foots the bill
Specifically, the Schwartz study found that in the forty-four largest jurisdictions studied, police officers paid .02% of the over $730 million paid for misconduct suits between 2006 and 2011. In the thirty-seven smaller police departments included in the study, Schwartz found there were no officer contributions towards settlements and judgments during that time. In short, according to Schwartz, in many jurisdictions “officers are more likely to be struck by lightning than they are to contribute to a settlement or judgment in a police misconduct suit.”
And of course with such a complete and utter lack of personal punishments they have absolutely zero incentive to change the behavior that resulted in $730 million in settlements, because hey, it's not like it costs them anything.
To say that there is something seriously disgusting and warped that those tasked with upholding the laws are among the least likely to face penalties for violations of them is a gross understatement.
The standard of acceptable conduct should be higher for those tasked with upholding the laws, with the penalties for abuse of power and violation of laws and rights likewise much more severe, yet courts such as this one and lawmakers routinely set both much, much lower(if they exist at all), leaving the public on the hook and the police with no reason to respect the laws or rights of those around them.
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Re: Any fine is negligible when someone else foots the bill
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What?
This makes no sense to me. Do you mean illegal under state law except in cities that say otherwise, which Estherville did? Or illegal on state-owned property? Because if the City didn't make an action illegal, and its state did, we'd normally call it "illegal".
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Two things
I get it, actually. Cops want to make their jobs easier, and who doesn't want that? And we tend to want to be on their good side, for our own safety. Between the two, we are set up to fail, because while we want a lawful society, we don't want trouble with those charged with making it happen, so we give them whatever they ask for, eventually.
This is the crack that the government drives the wedge into at every opportunity. If we try to hold the law-keepers to a higher standard, we don't get better law-keepers, we get law-keepers who make the public pay, and the coin they demand isn't just gold. They are smart and slick enough to demand protections out the wazoo, as well.
Ironically, one of the best ways for the police to get increased funding is by not doing their jobs, and wasting time on tax collecting, but that's a different issue.
The second thing is that the courts are lying by using the term "qualified immunity". If I could have a realistic wish granted in this case, it would be for the courts to instead term it "default immunity", since the police "qualify" for immunity simply by being police. "Court-mandated default immunity" would be even better, but realism precludes that much honesty from any organization.
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Re: Two things
And I always call them “Sir” at a traffic stop. Once I even pulled over under a bridge so they didn’t get wet from the rain. They appreciate that, and let me off with a warning instead of an expensive ticket.
IMHO, all citizens should be drafted to serve as police for some period in their lives. It would teach citizens a little about humility and criminal and law enforcement reality.
A police draft, that would be good. All you Techdirt naysayers would go the front of the line and serve in the Chicago slums for a few weeks. That would help reshape your opinions in short order.
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Re: Re: Two things
Their job is to keep up the law, and qualified immunity makes it easier for them to not do their job. Since it leads to an expectation of them to shoot first, ask questions later, it also makes actual criminals more likely to shoot officers on sight. Which does not exactly make them safer either (and obviously does not make life for non-criminals safer).
Making police consider themselves entitled to unlawful behavior (and qualified immunity is about protecting them from the consequences of unlawful behavior) does not make them safer and most certainly does not make citizens safer.
The goals cited as motivation for creating those laws just aren't furthered by those laws if you bother actually looking at the statistics resulting from them.
Of course, the U.S. solution to an approach not working is trying more of the same rather than something else.
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Re: Re: Two things
Every time they do something bad or downright terrible and either their partner or others in the force knows about it, they tarnish them too. I do see the dilemma in choosing between the rules and your coworker or friend and in todays environment you get punished for doing the right thing, even in cases of manslaughter.
So yeah... I can appreciate law enforcement, but I will damn well work towards getting the bad ones out... A salute looks great, I suppose, but in reality you do nothing at all to improve their rotten reputation which is kind of the landscape we see today in general.
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What the hell does being USAnian have to do with anything?
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If you think your constant IP address jumping and feedback is supposed to paint Shiva Ayyadurai in a positive light, you are going to be sorely disappointed.
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Re: Re: Re: Re: Re: Two things
That's just their schtick(one of them anyway), whine about how 'un-american' other people are, employ rambling jingistic rhetoric and/or claim that anyone who disagrees with them simply must be from another county.
Best not to waste any time trying to wring a coherent meaning from their statements, though entertainment is easy enough to find.
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Re: Re: Two things
IMHO, all citizens should be drafted to serve as police for some period in their lives.
I for one, would love this idea. I'd love to trade places with a police officer for a time on the condition that while I'm acting as a police officer, I can only pull over off-duty police officers, or approach off-duty officers, demand identification, and beat the shit out of them if they're anything but humble.
Maybe once they get a taste as to how some of their "brothers" act, and have no recourse other than to take it along with their tickets, they'll lose that fucking attitude that is so prevalent with most of them.
Remember that they chose their career, and if they don't like it or are afraid, they're free to fuck off and find another line of work.
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What you fail to appreciate is how quickly you would be disciplined by your follow officers.
And by "quickly" you mean never, right?
Or by "discipline" you mean "paid leave?" Shit, I'd love a free vacation every time I fucked up.
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Of course, the fact that this is projected to happen immediately for treating fellow officers the way they routinely treat the public (and for which no such internal discipline seems to be forthcoming) is kind of making a different point than I think he was trying to make.
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Re: Re: Two things
In theory it's great. In practice, it places us above the law. And, like any group, we're a mixed bag. Some officers are corrupt; some are well meaning, but overworked; some just don't give a damn; and sometimes the temptation is there to do something illegal in pursuit of a higher cause. "The ends justify the means", some would say. And letting us off the hook for so many violations of people's rights lets them get away with it.
If we were held accountable, it would be different. We would be able to point to our friends in the courts, and say, "we agree, that's not acceptable, and we are taking action to address it." there would be much stronger pressure on us to respect your rights if we could be held accountable for our actions. But, for the most part, we can't.
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Re: Re: Re: Two things
If we were held accountable, it would be different. We would be able to point to our friends in the courts, and say, "we agree, that's not acceptable, and we are taking action to address it." there would be much stronger pressure on us to respect your rights if we could be held accountable for our actions. But, for the most part, we can't.
And that, funnily enough, serves to highlight how courts are not doing cops a favor with rulings like this.
By making it clear that there are blatant double-standards, showing that police get the silk gloves while everyone else gets the fist, rulings like this make things worse for the cops that are actually good by shielding those that absolutely should not have the badge and what comes with it, and in so doing create resentment and increase divisiveness, while making it more difficult if not effectively impossible to hold accountable those that deserve it.
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Which is to say, bullshit. “If we were held accountable, it would be different.” Do you expect anyone to believe a cop wrote this? You describe cops all the time. Who would believe this pansy ass wording from a brute thug police officer intent on beating brown people? Those are passive lady words without any balls at all, you Lesbian.
Come on, Wendy, that’s you in your Pirate eye patch behind the A/C name, isn’t it? I would recognize your Lesbian Separatist writing anywhere.
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Re: Two things
That's not the proper way of looking at the Bill of Rights at all.
The Third Amendment has never been challenged. It certainly isn't a thing "that governments always want to take from its citizens. Always. Always, always, always, and in all ways possible," it's a specific reaction to something that was a problem during the Revolutionary War and has not been a problem in the centuries since.
The Ninth and Tenth don't fit your paradigm; they're not lists of rights at all. The Ninth is there to explicitly state that the Bill of Rights is not an exhaustive list and that people have rights beyond the ones specifically codified in the Constitution. The Tenth is a general reference to states' rights.
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Why do we need a qualified immunity defense?
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Enough people still buy into "cops are in the trenches out there and MUST be supported" that it isn't worth it yet to go against the powerful unions and law enforcement.
It is like a train going 200 mph and either it is going to stop very, very slowly or it is going to crash violently... personally I think it is going to be the second, because it seems to be worse and worse with these things, while there is a major part of the public that just about had enough too... at some point it is going to blow up.
The problem with this is that before the dust settles and the victims have been counted, the politicians are going to do what they do best: Make fast laws and decisions based on popularity and feelings going 200 mph in the other direction. It will be fine for a little while until they inevitably take it too far... then the whole thing starts over.
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The Standard.
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Re: The Standard.
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Qualified Immunity is an Absolute Disaster
The dissenting opinion [starting on p. 40] runs almost as long as the prevailing opinion. From the outset, Justice Brent R. Appel makes it clear qualified immunity is nothing more than a reward system for bad cops.
A great big hearty thanks for the US (no-so) Supreme Court and their wholly deficient decision to legislate from their ivory tower of jurisprudence (ie the bench) thus circumventing the will of the people (ie congress) and foisting upon an unsuspecting nation the seeds which have spawned the unprofessional/unaccountable/unconstitutional law enforcement campaigns that are on full public display - even to those persons suffering from myopia - in which real persons/property are harmed with nary a remedy to be found in the courts.
Italicized/bold text below was excerpted from the website www.law.cornell.edu:
In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court held that when an officer of the law (in this case, an FBI officer) conducts a search which violates the Fourth Amendment, that officer is entitled to qualified immunity if the officer proves that a reasonable officer could have believed that the search constitutionally complied with the Fourth Amendment. The relevant question that a court should ask is whether a reasonable officer could have believed the warrantless search to be lawful, considering clearly established law and the information which the officer possessed. The Supreme Court also held that "subjective beliefs about the search are irrelevant."
https://www.law.cornell.edu/wex/qualified_immunity
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Re: Qualified Immunity is an Absolute Disaster
thus circumventing the will of the people (ie congress)
If you actually believe that Congress is opposed to this decision, then I have a bridge to sell you. Congress could, tomorrow, pass any number of laws which would eliminate qualified immunity. "Legislating from the bench" may possibly be a problem, but only in cases involving a constitutional requirement to perform (or not perform) certain activities (e.g. the decision on gay marriage a few years ago). Every other decision (like this one) is just one Congressional majority away from being so much wasted paper. If it still exists, it is because Congress wants it to exist. And if it is routinely being used, it is because the Executive wants it to be routinely used.
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