Police, Police Supporters: Ending Qualified Immunity Makes Being A Cop Too Hard, Somehow 'Defunds' The Police
from the snowflakes-in-bulletproof-vests dept
Last Wednesday, the House passed the "George Floyd Justice in Policing Act," a bill that targets a number of aspects of law enforcement that need improvement, including two that have caused a considerable amount of collateral damage.
The bill [PDF] -- passed by the Democratic majority 220-212 with all but one member of either party voting the way you'd expect them to vote -- bans discriminatory profiling, mandates more training on discrimination, and requires law enforcement agencies to collect data on investigatory activities. It also bans chokeholds and no-knock warrants, both instruments of death still permitted by far too many law enforcement agencies. The on-again, off-again limits on the requisition of military gear via the 1033 program are back on.
There are also mandates for federal officers, finally requiring their use of body cams and dashcams -- something they've avoided doing for years.
But here are the accountability add-ons that are resulting in pushback from law enforcement agencies, their supporters, and (of course) their unions.
Makes it easier to prosecute offending officers by amending the federal criminal statute to prosecute police misconduct. The mens rea requirement in 18 U.S.C. Section 242 will be amended from “willfulness” to a “recklessness” standard.
Enables individuals to recover damages in civil court when law enforcement officers violate their constitutional rights by eliminating qualified immunity for law enforcement.
Officers really don't want to be held accountable for their actions. Thanks to the US Supreme Court, they've been able to avoid personal responsibility with relative ease for years now. Citizens have been able to sue government employees for rights violations since 1871, following the passage of the Ku Klux Klan Act. The Supreme Court didn't create the qualified immunity defense until 1967. So, for nearly 100 years, law enforcement agencies at both the state and federal level operated without this shield and, despite its nonexistence, were not swamped with bad faith litigation.
But the complaints emanating from these agencies following the House's passage of this bill could give listeners the impression this litigation shield has always existed and that any alterations to it would open the litigation floodgates. And the constant threat of litigation would have other negative effects, like deterring people from entering the law enforcement field.
But let's go back to the vote. One Republican rep who voted the "wrong" way swiftly ran to the nearest social media outlet to make sure his voter base knew he never intended to support police accountability efforts.
The George Floyd Justice in Policing Act, H.R. 1280, passed 220-212 — although a Republican representative said he'd voted yes by mistake and changed the official record to reflect his opposition.
Rep. Lance Gooden, R-Texas, tweeted that he'd pressed the wrong button and voted for the bill by accident.
Virtue signaling but for avoiding virtuous acts. Nicely done, Rep. Wrong Button.
The bill passed the House, which is held by the Democratic Party. The party has a slim majority in the Senate which may not be enough to move this legislation forward. Nevertheless, the complaints have begun to roll in. And, as is to be expected when legislators target something created out of thin air that solely benefits law enforcement, law enforcement is complaining about the possibility of it evaporating back from whence it came.
The Placer County Deputy Sheriffs Association president says a majority of law enforcement officials are following the rules and if the bill passes, getting rid of qualified immunity will just end up hurting good officers.
“Bad police officers should be held accountable. That’s something we can all agree with. The language in this bill, isn’t a step in that direction,” said Deputy Noah Frederito.
But bad officers aren't held accountable very often. And this neglect often begins in the agencies that employ them. Qualified immunity tends to ensure they won't be held accountable in other arenas law enforcement doesn't directly control. Bad officers get sued. Good officers won't -- or at least, they won't be sued successfully, even in the absence of qualified immunity. In fact, most officers are never sued, so it tends to be the baddest of the bad that find themselves in court trying to explain why violating rights was the best way to conduct law enforcement business.
Here's the National Association of Police Officers with a similar complaint, one that says it's almost impossible for officers to figure out what citizens' rights are and/or how to avoid violating them. It's an appeal to idiocy, written by idiots.
With the change to qualified immunity, an officer can go to prison for an unintentional act that unknowingly broke an unknown, and unknowable, right. Further, the threat of the elimination of qualified immunity has already caused decent, experienced officers and newly hired officers alike to question whether the risks of the profession are worth the noble job of serving and protecting their communities.
It's pretty sad when you openly admit that increased accountability will result in fewer people opting for a law enforcement career. It's almost as if the thing that attracts applicants is the combination of increased power over citizens and extremely limited accountability, rather than any sense of duty to their communities.
Here's another union rep saying pretty much the same thing:
"They want to take our Qualified Immunity away, and we're totally against that."
John Kazanjian, who also serves as the President of the Palm Beach and Martin County PBAs, says it would lead to a slew of lawsuits being filed against individual officers.
"So when they take that away, next thing you know I put a set of handcuffs on somebody, they get bruising on their wrists (and) we're getting sued."
Yes, the existential threat of bullshit lawsuits -- one that Kanzanjian somehow manages to portray as a defunding effort by Congressional Democrats, despite there being no defunding mandated by the law.
He says, in essence, the legislation that's named after the black man who died while in police custody in Minneapolis last May, would wind up defunding the police. That's because, with individual officers potentially facing costly law suits, agencies would have to spend a portion of their funding on lawyers to defend them.
This is something some already do. And it's not even their money. It's the taxpayers' money. That it often comes from city/county funds rather than the departments themselves doesn't change the fact that the money comes from taxpayers. If it starts coming from police departments themselves, it's still not their money and it's still an expense agencies should do everything to limit, which means cultivating a positive police culture rather than just shrugging off misconduct allegations and excessive force deployments.
Others are making the same disingenuous arguments about "defunding the police," knowing that this phrasing conjures images of cop shops going broke and criminals running wild. More importantly, it harms their political opponents.
Representative Kevin McCarthy of California, the Republican leader, repeated one of those attacks on Thursday, asserting that the bill would “defund the police” by imposing “mountains of new regulations” that would drain departments’ resources. The attack sought to conflate the House Democrats’ effort with calls by progressive activists to shrink or otherwise pull resources from departments — which the lawmakers in Washington who crafted the bill explicitly rejected.
“Democrats just doubled down as the party of Defunding the Police,” Mr. McCarthy wrote on Twitter.
Again, nothing in this bill strips funds from law enforcement agencies. It does require them to use some of their funds to meet training and reporting mandates, but moving money around isn't the same thing as taking money away.
Two Iowa Congressional reps made the same specious argument two different ways. Here's Representative Ashely Hinson:
Law enforcement officers in Iowa and across this country put their lives on the line every day to keep our communities safe. It’s reprehensible that House Democrats would bring forward legislation to defund police departments while relying on law enforcement to protect our Capitol from imminent threats…
And here's Representative Mariannette Miller-Meeks:
The Justice in Policing Act would eliminate qualified immunity, which would make recruitment and retention difficult and increase retirements, decrease the number of officers on patrol, and cost taxpayer dollars municipalities litigate frivolous lawsuits. In effect, this is a backdoor way to defund the police.
Again, no defunding takes place. The second statement is worse, because it again suggests people get into the cop business to access power that's tied to very limited responsibility. When that balance shifts to something a bit more equal, those originally drawn to the more favorable power/responsibility blend exit the workforce. But cops leaving (or failing to ever arrive) isn't "defunding."
The opposition is making their voices heard. And their voices are saying they have no interest in holding cops accountable because… accountability apparently keeps people from becoming cops and keeps employed cops from continuing to be cops. That's a pretty sad admission.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: george floyd, police, police brutality, qualified immunity
Reader Comments
Subscribe: RSS
View by: Time | Thread
Lying: For when even you know you're full of shit
Funny how the chance of being sued for abusing your position doesn't seem to prevent people from going into every other profession out there, or cause those already in those jobs existential terror of lawsuits that might spring up at any moment. I guess non-cops are just braver and more dedicated to their jobs or something.
All of those lies and strawmen are garbage, but I'd say this one unintentionally gets to the crux of the matter, not just because of how wrong it is but the manner in which it's wrong:
“Bad police officers should be held accountable. That’s something we can all agree with. The language in this bill, isn’t a step in that direction,” said Deputy Noah Frederito.
Bad cops should be held accountable, however the reason that there are protests, the occasional riot and bills like this is because that's not happening, because as it turns out that's not something everyone agrees with. Cops are getting away with literal murder at times, violating rights, destroying property and even lives and escaping with nothing more than a slap on the wrist, and even that tends to take a sustained public outcry loud enough to force the issue. If bad police were being held accountable then bills like this wouldn't be necessary or even considered, that they are is an indictment of the profession and it's defenders and their refusal to admit that is just stoking the fires and making people even more dedicated to reigning in what has become the largest and most dangerous criminal organization in the country.
If those 'defending' cops against accountability didn't want their opposition to pull out the nuclear option by trying to remove QI then they shouldn't have abused it to such an extent that a full revocation was warranted, the only people they have to blame for this are themselves.
[ link to this | view in thread ]
What are they afraid of?
If they're not doing anything wrong, they've got nothing to be afraid of.
At least, that's what they tell us...
[ link to this | view in thread ]
Unlike regular people, who totally can't go to prison for an unintentional act that unknowingly broke an unknown, and unknowable law.
[ link to this | view in thread ]
"it's still an expense agencies should do everything to limit"
It's the opposite of defunding.. Big keyword being "should". Unfortunately not must or even held accountable for doing.. We should know the police departments well enough by now to predict the result will be status quo for abuse and increased police budgets to pay the lawsuits
[ link to this | view in thread ]
You know you're on the right track when the police unions oppose your legislation.
They've griped about decriminalizing drugs - which has proven not to be the disaster they predicted.
They've griped about loss of asset forfeiture in some jurisdictions - because they built their budgets with the assumption they would be able to steal from people they don't even charge or that DAs don't even prosecute.
They've griped about rescinding policies like Stop and Frisk - despite the rates of people of color getting stopped being disproportionate.
[ link to this | view in thread ]
Re:
I agree except for one police association.
One I think would be great to supplant all police unions/associations.
The National Black Police Association.
"Community Policing: The NBPA supports the philosophy of Community Policing that calls for a true, cooperative partnership between the Community and the Police for safer communities.
Control of Narcotics: The NBPA believes that the influx of hard narcotics into this country can only be controlled by a joint effort between the supplying country and the federal government.[2]
Crime Prevention: The NBPA supports the allocation of more national and local crime fighting resources toward the prevention of crime.
Capital Punishment: The NBPA protests the application of capital punishment in all instances. The NBPA feels that capital punishment is un-American, unjust, and unconstitutional.[3]
Handgun Control: The NBPA supports national handgun legislation prohibiting further manufacturing of handguns and limiting their sales, possession, and use.
Police Brutality: The NBPA believes Police brutality must be confronted, controlled, and outlawed by all police departments throughout the United States.
Police Officer Residency: The NBPA believes Police should be required and have their official residency in the city or municipality in which they are employed.
Women in Police Work: The NBPA supports women as equal and equitable partners in the field of law enforcement, and believes them capable of performing equally as well as their male counterparts."
https://en.wikipedia.org/wiki/National_Black_Police_Association_(United_States)
[ link to this | view in thread ]
tough shit
see above.
[ link to this | view in thread ]
Re:
"ignorance of the law is no excuse", unless you're a cop
[ link to this | view in thread ]
Re: Re:
Which leads to the extremely messed up situation where ignorance of the law not only is an excuse for a cop but a highly desirable state to be in, because the less cops know about the law the better off they are.
[ link to this | view in thread ]
It's just a small start in (sort of) the right direction
But this part:
Sounds like two birds with one stone to me!
[ link to this | view in thread ]
"Bad police officers should be held accountable."
Name 5 that were & we can name 50 that weren't.
It is nice to see that reality is still suspended as everyone imagines what this can & can do, meanwhile this is gonna do nothing for people who happen to crosspaths with someone who's never been held accountable before & is extra upset that accountability might be coming.... but hey perps in comas or the ground can't refute the narrative the officer spins.
[ link to this | view in thread ]
They need to mandate that all officers wear body cameras and that they are activated 100% of the time a cop interacts with the public. If they aren't or the police claim the footage is "lost", the police should automatically be assumed to be lying and the suspect telling the truth. In cases of fatal police shootings, if there's no camera footage, the officer should automatically be charged with homicide at minimum.
Yeah, I know this will never happen, but if it did, it would virtually put an end to cops not turning the cameras on, or erasing the footage.
[ link to this | view in thread ]
As noted regarding the Kentucky law
If they think being a law enforcement officer is too hard maybe we should look at how difficult it is to be a reseller clerk.
My choice would to improve the quality of life of cashiers (as well as increasing accountability of police officers).
Not that I expect anything to get done by anyone anymore until more precincts are razed to the ground.
[ link to this | view in thread ]
Re:
It's even funnier as the Bill of Rights is actually a pretty short list of items.
[ link to this | view in thread ]
National Association of Police Officers:
No, they can't. QI is a immunity to a civil suit. There can be no prison time. It is standard for cops to not know the law, but I ask the reader, does this group really not understand QI, or are they just pretending not to?
[ link to this | view in thread ]
Re:
You can expand body camera programs, but that costs money, and body cameras alone don't stop bad cops.
The basic idea behind Defund the Police is to take some money away from police departments and use that cash to solve societal problems in other ways. For example, having social workers that respond to mental health crisis calls instead of cops. For example, homeless outreach programs that reduce trespass and loitering incidents. For example, better food stamp and unemployment programs so people don't turn towards crime as often. For example, school security instead of school police, because non-cops don't shoot or arrest our kids. These kinds of programs are not perfect, but they have two great qualities: less people with guns and handcuffs looking for an excuse to use them, and more people with the right training for the job.
Let's get the cops away from things they suck at and back to things they're good at.
[ link to this | view in thread ]
Re:
They're so accustomed to being completely immune from consequences for their own actions that they have forgotten what that actually involves.
Or they're lying.
One of those.
[ link to this | view in thread ]
back to thinga they're good at
Let's get the cops away from things they suck at and back to things they're good at.
What activity in service of the public would fit into this category?
[ link to this | view in thread ]
Re: does this group really not understand QI,
They don't understand IQ either.
[ link to this | view in thread ]
serving and protecting their communities.
Depends who you think your "community" is.
[ link to this | view in thread ]
dumber than a box of rocks.....
Here's the National Association of Police Officers with a similar complaint, one that says it's almost impossible for officers to figure out what citizens' rights are and/or how to avoid violating them.
NO! it is NOT impossible to know what our rights are! a basic knowledge of the bill of rights and knowing what laws are used the most is not that hard! it is all in the training manual....unless your dumber then a box of rocks! then you probably shouldn't try anything hard like thinking......
[ link to this | view in thread ]
With the change to qualified immunity, an officer can go to prison for an unintentional act that unknowingly broke an unknown, and unknowable, right.
wrong! QI doesn't prevent bad cops from going to prison! QI is civil NOT criminal!
unfortunately DAs and those responsible for holding the blue lies mafia "ACCOUNTABLE" misuse QI to avoid charging the badged criminals with any crimes! they look at QI to see if there has been precedence of a violation, if not , no charges!
[ link to this | view in thread ]
But bad officers aren't held accountable very often. And this neglect often begins in the agencies that employ them.
out of the 100% that should be arrested, only about 10-25% are! with a conviction rate of 1-2%! then to add insult to injury they only get a slap on the wrist!
[ link to this | view in thread ]
racism
He says, in essence, the legislation that's named after the black man who died while in police custody in Minneapolis last May, would wind up defunding the police.
this statement just screams I'm a RACIST and I don't care!
at least that is what i felt when i read it......
[ link to this | view in thread ]
Re: back to thinga they're good at
Responding to acts of violence, ie. someone breaking into a home, threatening service workers, a bar brawl, and so on.
Actual criminal investigations after a crime has been committed, ie. forensics and detective work.
[ link to this | view in thread ]
This is easily fixed; just replace 'qualified immunity' with 'malpractice insurance.'
[ link to this | view in thread ]
Re:
"for an unintentional act that unknowingly broke an unknown, and unknowable, right"
drops the case of the women who were strip & cavity searched on the side of the road by officers
Yeah there is NO POSSIBLE WAY those officers could have known that forcing people to strip & spread them on the side of the road would violate some unknowable right...
These are the same people who keep trying to get laws passed that calling a cop a bad name would be a criminal act... but they can't puzzle out stuffing their fingers in a womans ass on the side of the road violates a right?
[ link to this | view in thread ]
Our Society
So, in a super litigious society, you don't appear to understand that making cops personally liable for every law suit that 2nd guesses split-second actions, might be chilling, and thus the equivalent of defunding the police?
And this from someone who writes 24/7 about all of the law suits without merit that are brought in American in other fields?
Stunning blindness on your part.
[ link to this | view in thread ]
Re: Our Society
Your post displays your stunning lack of knowledge how QI works and how it has been applied in the courts. Just let me re-iterate how a usual case involving QI has panned out:
With QI removed, the citizen will actually get his day in court. If your argument is that a citizen shouldn't be able to protect his/hers rights through the justice system because you live in a litigious society, I can only hope the police will walk all over you again and again and again while you keep your mouth shut.
[ link to this | view in thread ]
You say that like it would be a bad thing.
Police abusing their power is rarely a “split-second action”. It is the endpoint of a culture of arrogance and non-accountability — a culture where cops believe they’re superior to all other people and their actions can’t ever be second-guessed. Bad training, look-the-other-way management, and their own personal biases combine with that abundance of ego and lack of oversight to create a “bad cop”.
In nearly every other job in the world, a person who fucks up would be held responsible for their fuck-up — even if that fuck-up is a “split-second action” and is no worse than, say, dropping a glass jar on the floor. But we’re asked to forgive cops for “split-second actions” that leave people in hospitals and morgues — that leave innocent people in jail/prison cells for crimes they didn’t commit — because “their jobs would be too hard” if they faced real oversight. Something about that doesn’t make sense, and I hope you can see what that is.
Does society need the police? Yes, it does. But does society need the police to evade oversight, escape accountability, and otherwise be left free to kill and maim and violate civil rights with impunity? Your answer will say a lot about you. Make it something good for once.
[ link to this | view in thread ]
Police are not good at those things either.
How police respond to criminal trespassers is not pretty.
I couldn't find any bar fight incidents, but the way they handle school matters isn't pretty.
And precincts are known to use bum field drug tests, trick pony detection dogs and crime labs that favor false positives, so I wouldn't trust them for detective work either.
I'm pretty sure we can safely abolish the entire justice system (that is, law enforcement departments, prosecutors, judges, courts, and prisons) and not be worse off for it.
[ link to this | view in thread ]
Re: Our Society
I don’t have a problem with that, and we do the same for just about everyone else. Lots of people are held liable for split-second actions.
That said, since we also have precedence outside qualified immunity that says that a lot of those split-second decisions aren’t violating anyone’s rights, anyways, and the ones that are or might be shouldn’t be dismissed early on, anyways, I don’t see that happening beyond what it ought to. If a person makes an allegation that something violated their rights, but the law says that, even if the allegations are true, their rights haven’t been violated, the case will and should be dismissed quickly anyways, QI or no QI. If the allegations are very clearly false or the plaintiff has absolutely no evidence whatsoever to support their claim, then the plaintiff will lose in summary judgement without getting to a jury. Otherwise, it’s a case that absolutely should go to a jury.
If that’s chilling, it only appears to chill bad or excessive behavior and would only dissuade people who shouldn’t be officers from becoming officers, so I fail to see the problem. Really, even without QI, the system tends to favor cops over citizens anyways. And the law quite explicitly does not require the cops to personally pay for legal help, court cost and fees, or any fines stemming from such a lawsuit. That all comes from taxpayer money, and not even necessarily the police department’s funds, specifically.
Also, even with QI, governments spend a lot of money defending against or settling such lawsuits. If a case is truly frivolous, the state may even be able to recover court costs either way.
I’m afraid I don’t see the connection between “chilling police” and “defunding the police”. Especially when “defunding the police” refers to diverting funds that would go to law enforcement for anything, including legal costs, to other things (like mental health professionals or social workers), or, in the oft-used misunderstanding of it, removing all funding for the current police department entirely, neither of which would be likely direct consequences of eliminating QI.
And actually, on that note, while I perfectly understand why people confuse the issue (intentionally or not), I should probably explain how defunding the police (which, again, this isn’t) is supposed to work, at least in theory. Currently, police have to handle a lot of things that aren’t exactly related to enforcing the law. Things like stopping people from committing suicide or getting homeless people off of the streets. The idea is to remove funds from police departments and divert it towards other programs and agencies that will handle those tasks for the police (at least most of the time), so while police will have less funding, they will also have fewer duties. Other programs and agencies that might receive funding might be intended to solve problems that increase lawlessness, like mental healthcare programs, programs intended to help unemployed people get jobs, and drug-rehabilitation programs. This would make even the law enforcement part of the job of police officers easier because there would be fewer instances of law breaking. So yes, police departments would get less money and possibly have fewer employees, but they would also need less money and fewer employees because they would have fewer tasks that they would have to handle.
There is an extreme version that involves defunding the current police department entirely and moving those funds to (possibly among other programs) a completely new police department built from the ground up to replace the old one. This is intended to, essentially, clean house and remove systemic issues with the current police department and to ensure the removal of any bad apples. So, even under this scenario, there will still be police officers who still get paid sufficiently to do the jobs they’re supposed to do.
Now, both of these methods have been tested (in varying degrees) in several locations across the country, and the results we’ve seen so far have been promising. Fewer deaths and injuries caused by police, less harrassment by police, happier civilians, fewer lawsuits, fewer cases settled or lost, fewer people in prison, and no more crimes committed than before (often less), with little to no additional costs to the government.
Of course, as I already stated, removing QI doesn’t do either of those things. If removing QI costs departments more money, that’s the fault of the officers, not the law. Police should be held to a higher standard than civilians.
[ link to this | view in thread ]
Re: What are they afraid of?
Good cops don't need qualified immunity. Bad cops depend on it.
[ link to this | view in thread ]
Re: Re:
Yeah. Apply sanity and enough common sense to get through kindergarten and you suddenly need to really put in the work to manage to violate the bill of rights.
And yet US law enforcement manages it on a scale which has them killing more people per capita than some other countries criminals do. If you want to find more murder per capita by cop alone than takes place in the US then you need to visit some war-riven hellholes in the middle east or drug cartel-controlled barrios in central america.
[ link to this | view in thread ]
Re: Re: back to thinga they're good at
"Responding to acts of violence, ie. someone breaking into a home, threatening service workers, a bar brawl, and so on."
Ah, you mean those cases where they lamentably tend to show up and shoot some innocent bystander for being brown in public while ignoring the actual crook making off with the goods down the street?
Or the ones where they show up at the wrong house and riddle the hapless occupants with bullets?
[ link to this | view in thread ]
Re: Our Society
"So, in a super litigious society, you don't appear to understand that making cops personally liable for every law suit that 2nd guesses split-second actions, might be chilling, and thus the equivalent of defunding the police?"
US law enforcement has some of the worst statistics in the G20 concerning brutality, overreach, investigative failure...and isn't even hitting decent numbers on actually solving cases either.
It would be unthinkable in any other nation in the western world, for police to act as they do on regular basis in the US, while bearing that sort of legal shield.
And as usual, here you are, Restless94110, whining that apparently the US alone is such a hopeless cause among developed nations that it alone can't accomplish what everyone else apparently can.
When did you among the alt-right decide the US was the land of hopeless losers? The nation of "We can't"? You alone need to treat your cops like special fragile snowflakes unable to even function without legal shelter no other nation in the world this side of North Korea would even dream of extending?
Every last one of your arguments lately have been "As a nation we're so pathetic we can't hit ANY standards".
And that's a fucking sad argument to make.
Damn, son, if even the original nazis would condemn you as a lily-livered spineless wart maybe it's time to reconsider your life choices? Because I'm pretty damn sure even Hitler wasn't dumb enough to make "Why we can't" the start of every talking point.
[ link to this | view in thread ]