Appeals Court: No Immunity For Cops Who Punched A Man Hanging From A Second Story Window And Tased Him When He Hit The Ground

from the I-didn't-see-a-weapon-but-I-didn't-*not*-see-a-weapon-either dept

It takes a lot to lose your qualified immunity, but these cops -- who punched a man's head while he hung from a bedroom windowsill ten feet off the ground and tased him after he fell and broke his leg -- managed to do it.

This Second Circuit Appeals Court decision [PDF] also contains one of the most astounding bits of cop-speak I've ever seen, but we'll start where it starts: with cops chasing a man clad only in boxer shorts, a t-shirt, and flip-flops.

The suspect was startled by officers serving a search warrant and made a run for it. Officers originally suspected Jose Peroza-Benitez had a weapon on him. One officer saw the suspect drop the gun on the roof during the pursuit. Other officers at the scene said the gun then fell to the ground in an alley. Peroza-Benitez denied having a firearm on him at any point, but officers did recover one from the scene.

But where exactly at the scene remains disputed. The report said it was found in the suspect's possession. But every officer sued agreed it was not on his person when they finally arrested him. The chase ended when Peroza-Benitez climbed out of a second story window and then ran out of escape options. As he dangled by his hands (which clearly did not contain a gun), he was approached by C.I. (Criminal Investigator) Kevin Haser who, despite recognizing a fall from that height might injure the suspect, decided to get physical.

According to Peroza-Benitez, as he was hanging from the windowsill with his hands, his feet “dangling,” C.I. Haser “repeatedly” punched him in the temple region of his head with a closed fist. App. 173. C.I. Haser testified that he punched Peroza-Benitez “[o]ne or two times . . . . [p]robably two,” with the purpose being to “stun” and “disorient” Peroza-Benitez into compliance “to help him out.”

That's a weird way of helping. Haser's next attempt to "help out" was even weirder.

It is unclear from the record when the officers let go of Peroza-Benitez. Nevertheless, at a certain point, C.I. Haser thought “we’re like, screw it, you want to fall, you’re gonna fall. So we let go of him.”

Peroza-Benitez fell. And as he fell, Officer Daniel White made quite the set of observations:

Officer White indicated to his fellow officers that he was ready to assist should Peroza-Benitez fall. Officer White did not observe a weapon, or “the absence of one,” in Peroza-Benitez’s hands as he fell from the window.

Schrodinger's weapon: one that exists in two states until an officer feels comfortable testifying one way or the other. Officer White's did/didn't statement was made to excuse his response to the suspect falling and breaking his leg: the deployment of his Taser.

Officer White tased Peroza-Benitez after he struck the concrete steps. Officer White, without providing a verbal warning, deployed his taser in dart mode for a 5-second cycle. Accounts differ as to the exact duration of time that elapsed between Peroza-Benitez landing in the stairwell and getting tased, ranging from “as soon as he hit the concrete” to “less than five seconds.” However, the parties agree that Peroza-Benitez was tased either immediately or almost immediately upon landing.

Some of the cops (including Officer White) claimed the suspect "lunged forward" as if he was going to start running on his broken leg. The plaintiff claims he was temporarily knocked out after his head hit the concrete. Both Officer White and C.I. Haser claimed qualified immunity shielded their actions. The Second Circuit says they're both wrong.

Here, Peroza-Benitez was unarmed, injured, covered in his own blood, and hanging from a second-story window by his hands, feet dangling, when C.I. Haser – knowing Peroza-Benitez to be unarmed – punched him “repeatedly” in the head with a closed fist. C.I. Haser’s punches “stunned and disoriented” Peroza-Benitez, causing him to fall over ten feet into a below-ground concrete stairwell. Accordingly, we rely on a modification of the District Court’s definition: The Fourth Amendment right of an injured, visibly unarmed suspect to be free from temporarily paralyzing force while positioned at a height that carries with it a risk of serious injury or death.

Previous case law dealing with stunning suspects in precarious positions all deal with Taser deployments. The end result is the key, not the method used.

Officer Smith – who was with C.I. Haser at the window – testified that it is “against protocol” to “tase someone on the roof” because if “they fall off, that’s not going to be good. We’re not gonna tase someone that’s on a roof.” App. 53. The same exact logic applies to deliberately punching someone “to stun” them, App. 187, when that person is hanging out of a window.

The same goes for Officer White. Case law may not be exactly on point but a reasonable officer should know that tasing a possibly unconscious person was excessive force.

Viewing the facts in the light most favorable to Peroza-Benitez – again, as we must do at summary judgment – Peroza-Benitez was tased by Officer White while lying unconscious after having fallen over 10 feet into a below-ground, concrete stairwell. The duration of time that elapsed between Peroza-Benitez hitting the ground and getting tased does not change the fact that, in the light most favorable to Peroza-Benitez, he was tased while visibly unconscious and after multiple seconds had elapsed, App. 264, such that a reasonable jury could find that Officer White should have known that he was tasing an unconscious individual.

The case heads back to the lower court and -- if this law enforcement agency chooses not to settle -- a jury will get to decide whether or not rights were violated. According to what the court sees here -- and the admissions made by the officers involved -- there's a pretty good chance this will end in the plaintiff's favor. More factual development isn't going to change the fact one cop said "screw it" and let the suspect fall. And it won't change Officer White's response to someone falling off a second-story windowsill into an alley filled with cops: a swift tasing of someone in no position to escape.

Filed Under: 2nd circuit, police, qualified immunity

Iowa Senate Approves Bill That Would Add Qualified Immunity To The State Law Books

from the less-responsibility,-more-power dept

In 2018, the Iowa Supreme Court decided to align the state with one of the worst aspects of federal jurisprudence. Deciding it was too much to demand law enforcement officers perform their duties without violating rights, the state's top court decided to adopt a form of qualified immunity so plaintiffs could be just as screwed in state courts as in federal courts.

The case prompting this decision dealt with an arrest of someone who drove an ATV through a ditch. This violated state law but did not violate city laws. So, the court decided this bizarre case involving a conflict of state and local laws should be the standard bearer for civil rights lawsuits going forward.

A long dissent decried this decision, saying that lowering Iowa's standard to the federal standard was the wrong way to go. It would only make cops worse by providing them with a built-in excuse for every time they crossed constitutional lines.

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.

That's been the standard in the state since this decision. For some reason -- with protests against police violence still ongoing around the nation -- the state legislature feels now is the time to codify the doctrine first conjured up by the US Supreme Court into Iowa law.

The Iowa Senate passed legislation Monday intended to strengthen 'qualified immunity” for law enforcement officers who take forceful action in situations where state law is 'not sufficiently clear” to understand their conduct might violate someone's constitutional protections.

Majority Republicans said the statutory language is needed to clarify court rulings and provide 'balance” in cases where the law was not 'clearly established” at the time of an incident giving rise to a claim against an officer.

The bill does more than give Iowa officers a new defense tactic. It codifies the US Supreme Court's watered-down legal standards that have made it extremely difficult for plaintiffs suing over rights violations to succeed.

Under provisions of the legislation, a law enforcement officer would not be found liable in any action for damages in an individual capacity if the state law was not sufficiently clear so that the officer would have understood the conduct was a violation of the Constitution or any other law, or the law was not clearly established at the time of the incident giving rise to the claim against the officer.

The burden would be on the plaintiff to show that the law enforcement officer violated a clearly established constitutional or statutory right and the officer's employing agency would not be liable if the officer was found not to be liable under the new provision.

There is no reason to do this since state precedent says this already exists. What's happening here appears to be political point scoring that caters to the base these legislators have chosen to serve.

'We're not here today to try to create something new,” said Sen. Dan Dawson, R-Council Bluffs, 'we're trying to preserve the current law of the land right now because there are a slew of political actors out there that have decided in making kicking law enforcement in their teeth a hobby every day.”

If you're not creating anything new, why are you bothering? Is this the counter-hobby -- one that placates cops and gives cop fans a reason to cheer, even as it makes holding officers accountable much more difficult? The legislation is, at best, redundant. At worst, it's a public statement to law enforcement that their supposed oversight is more interested in keeping officers happy than making sure they respect the rights of the people they serve.

Filed Under: iowa, police, qualified immunity

Fourth Circuit Appeals Court Takes Aim At Police Officers' 'Training And Expertise' Assertions

from the training,-sure...-but-is-it-really-'expertise?' dept

It doesn't happen often, but it's always good to see a federal court push back against claims of "training and expertise." This phrase is often used to excuse rights violations and horrendous judgment calls -- somehow asserting that the more cops know, the less they should be held directly responsible for their acts.

The case being handled by the Fourth Circuit Appeals Court deals with some drug warriors and their willingness to work backward from their assumptions to something they sincerely wanted to believe was probable cause for a search. But the Appeals Court sees no "training and expertise" here. Instead they see officers motivated by hunches, which are not synonymous with probable cause, much less reasonable suspicion.

Here's the court's ultimate conclusion [PDF], which is supported by the lack of support for the cops' arguments, which relied heavily on assertions of "training and expertise."

In order to sustain reasonable suspicion, officers must consider the totality of the circumstances and, in doing so, must not overlook facts that tend to dispel reasonable suspicion. Here, officers relied on general information from a confidential informant; two interactions that officers believed were consistent with the manner in which illegal drugs are bought and sold, but in which no drugs were found; and a single officer witnessing a handshake between Appellant and another man and concluding that it was a hand-to-hand drug transaction, even though the officer did not see anything exchanged. Moreover, the officers concluded this amounted to reasonable suspicion, overlooking the facts that the interaction took place in a public space, in broad daylight, outside of the vehicles, and in front of a security camera; and after the interaction, Appellant went into a store, rather than immediately leaving the scene. On these facts, we agree with Appellant that the officers did not have more than a mere hunch that criminal activity was afoot when they stopped Appellant.

The broad brush of this summary is pretty damning. The details, even more so.

It all started with a "tip" from a confidential informant. The informant told law enforcement a black fellow might sell some drugs. As the court notes, the CI's "tip" contained nothing that would turn this into probable cause. It didn't say the person had sold drugs in the past. It offered no suggestion the person was going to sell drugs to the CI in the future. The only solid info officers had was that the vehicle tags provided by the CI were linked to someone who had been arrested for drug offenses in the past.

The cops got the tip in August 2017. But they did nothing until October 2017. Surveillance of the house listed on the vehicle registration began. The house was surveilled ten times and no drug transactions were witnessed. Investigators moved on to surveilling the resident of the suspect's assistant. The residence was "observed" over 30 times and no drug transactions were seen.

A car driven by someone who had sat in a car with the original suspect was stopped. No drugs were found, despite the drug dog's "alert." Detectives speculated the presence of syringes in this car indicated the driver was a drug user.

Officers began tailing the suspect. They observed him sitting in a gas station parking lot where he never interacted with anyone. They observed him going home. They observed him visiting a house and later leaving carrying a bag to his car. And their informant later told them that the suspect had called and said he had drugs to sell.

No controlled buy was ever set up using the informant. Instead, officers followed the suspect to a car stereo dealer. And this is where the "training and experience" apparently kicked in.

Detective Moore testified that the surveillance team was “expecting someone to meet [Appellant] and this to be like the other occasions when somebody would meet him.” J.A. 78. Detective Moore testified that this stop was consistent with how he would expect a drug transaction to occur.

If this was a drug transaction, it was a terrible place to engage in illegal activity. First off, the alleged incident happened in broad daylight in a busy public parking lot. Second, it occurred directly in front of the business's surveillance cameras.

Despite this, Detective Douglas Moore was sure the suspect was engaging in drug sales. He testified that his "training and experience" made it clear regular-ass handshakes are "hand-to-hand" drug transactions.

[O]n cross-examination, when specifically asked if he saw drugs or money exchange hands, Detective Murphy testified that it was just the actions and mannerisms that indicated to him that it was a drug transaction. He did not actually see drugs exchanged. Nor did he see money exchanged. See J.A. 120 (“Q. So you didn’t see any drugs or money exchange, just the actions and the mannerisms and it being a second handshake and it being longer than the first handshake, you believed it to be a hand-to-hand? A. Yes, sir.”). Detective Murphy provided no further detail about why this second handshake led him to conclude that a hand-to-hand drug transaction had occurred. In fact, when asked to describe why he thought the second handshake was a “hand-to-hand transaction versus just another greeting,” Detective Murphy testified, only, “Well, the first interaction was brief. The second, what I believe to be the hand-to-hand transaction, was more deliberate and it wasn’t as brief as the first action.”

So, the difference between a legal handshake and an illegal handshake is in the eye of (only one) beholder. And that's what instigated a search and the discovery of drugs.

No good, says the Appeals Court. Give this "training and expertise" bullshit a rest. It dismantles every single one of the detective's arguments in favor of presumed probable cause. First, the information obtained from the confidential informant:

[T]he only information that proved useful to detectives in connecting the informant’s tips to Appellant was the vehicle tag number that was connected to him. But that alone does not connect him to drug trafficking. It connects him to a vehicle and that is it.

Then the second handshake, which Detective Moore claimed was actually the consummation of a drug transaction:

As to the notorious second handshake, the Government contends this second handshake provided the officers with reasonable suspicion because Detective Murphy testified that the second handshake was a “hand-to-hand” transaction. However, Detective Murphy never provided more than this conclusory testimony. In fact, Detective Murphy never witnessed drugs or money change hands, and his testimony did not provide any details about the handshake that allows us to view this second handshake as suspicious.

Do better, says the court:

[W]e cannot hold that officers’ bare suspicion of drug trafficking -- without more -- can allow even an experienced officer to reasonably conclude that such a benign and common gesture can be viewed as an exchange of drugs. This cannot amount to reasonable, particularized suspicion.

The ends cannot be used to reverse-engineer justification for the means.

The Fourth Amendment does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.

And here's the concurrence, setting fire to speculative "training and expertise" assertions. Trying to convert a seemingly harmless handshake into "reasonable suspicion" just because it seemed more "deliberate" than the first one the detective observed does direct harm to citizens, especially when courts decide an officer's speculation is more trustworthy than actual facts.

We therefore have thin facts—the handshake appeared long and purposeful— bolstered by a thinner interpretation of those facts—the handshake was “consistent with” a drug transaction. Such meager testimony would not have received the same degree of deference had it come from someone other than a law-enforcement officer. But in the half-century since Terry v. Ohio, we have afforded greater and greater weight to officers’ “training and experience”—often at the expense of the robust judicial scrutiny that the Fourth Amendment demands.

[...]

Our practice of affording strong deference to “training and experience” has costs. [...] It incentivizes veteran officers to lean on their “impressions” instead of doing the hard work of building a case, fact by fact.

As the concurrence points out, granting this much deference to cops does little more than offer judicial blessing for biased policing and rights violations. If cops want to be trusted in court, they need to earn it, not expect it.

In my view, judges can begin to curb these ill effects by dialing down the deference—even slightly—and treating police officers like other expert witnesses. Doing so would be consistent with both precedent and common sense. If a veteran officer catches something that would elude a novice—a code word, a pattern, etc.—he may of course rely on it, so long as he can later explain in court why the fact is significant. But if an officer's explanation is paltry or conclusory, as in this case, the judge must not hesitate to assign it less weight.

That would be a welcome change from the current status quo -- one that says cops are full of knowledge and everyone accused of a crime is full of lies. The burden of proof still remains on the government. And this burden should include offering evidence that supports "training and experience" assertions made by officers, rather than assuming anyone with a few years on the force is inherently an expert on illegal activity and human behavior.

Filed Under: 4th circuit, police, qualified immunity, training and expertise

Appeals Court Extends Qualified Immunity To Cops Who Knew They Were Violating A Photographer's Rights

from the goodbye,-subjective.-hello,-far-more-favorable-objective! dept

"Training and expertise." Let's talk about it.

This boilerplate phrase shows up in search warrants and other law enforcement paperwork -- something used a preemptive defense for whatever rights violations might occur subsequent to these sworn statements. Using "training and expertise" as the foundation for a defense against lawsuits and accusations of bias is handy: it shows the officer was being "reasonable" and only engaged in a roadside fishing expedition or hurled a flashbang grenade into a toddler's crib because all of this "training" led officers to believe criminals often engage in [Action X], thus justifying law enforcement [Action Y].

But this blanket assertion is as useless and full of shit as this Tenth Circuit Appeals Court decision granting qualified immunity to officers who detained someone for recording them while they assaulted an arrestee. (h/t Brad Heath)

Remember, the "training" is important. When raising a qualified immunity defense, it's always helpful to point out you couldn't possibly have known better because you were "trained" to react to certain stimuli with certain actions. The "training" (along with the years of "expertise") sets the stage. A cop is only as good as their training. And if the training left something crucial out, how is a cop to know the rights violations they engaged in were rights violations? It's not like we expect cops to be legal experts, despite the fact their job is literally enforcing the law.

So, let's get to the legal contortions [PDF] the Tenth Circuit deploys to excuse cops who should not have been allowed to claim they didn't know better when they infringed on a citizen's First Amendment rights.

Here's how it starts:

After Plaintiff-Appellee Levi Frasier video-recorded Denver police officers using force while arresting an uncooperative suspect in public, one of the officers followed Mr. Frasier to his car and asked him to provide a statement on what he had seen and to turn over his video of the arrest. Mr. Frasier at first denied having filmed the arrest but ultimately showed the officer the tablet computer on which he had video-recorded it. He did so after an officer, Defendant-Appellant Christopher L. Evans, and four other members of the Denver Police Department, Officer Charles C. Jones, Detective John H. Bauer, Sergeant Russell Bothwell, and Officer John Robledo—the other Defendants-Appellants—surrounded him and allegedly pressured him to comply with their demand to turn over the video. Mr. Frasier contends that when he showed Officer Evans the tablet computer, the officer grabbed it from his hands and searched it for the video without his consent.

The right to record public officials is pretty well established. Even without cases on point, there's a strong presumption in favor of those who do the recording. But that doesn't matter in the Tenth Circuit -- at least not in this case.

There are multiple layers of bullshit here, starting with the lower court's decision, which inexplicably decided Frasier's First Amendment rights were less important than the officers' official excuse for their retaliatory behavior. It starts with the district court giving officers a pass for asking questions they really had no right to ask.

The district court, as relevant here, held that Officer Evans had reasonable suspicion to detain Mr. Frasier throughout their twenty-three-minute encounter because Mr. Frasier lied to him about filming the arrest, thereby potentially violating Colorado Revised Statutes § 18-8-111, which proscribes knowingly making certain false statements to the police.

If you're not being detained or suspected of committing any crime, the correct answer to questions from uniformed interlopers is "none of your fucking business." I don't know what law the lower court was reading, but nothing in this statute forbids lying to cops about recording. It covers false fire/emergency alarms, falsely reporting crimes, and falsely identifying yourself. There is nothing in this law that says lying to cops about the presence of a recording not linked to any other criminal offense is a violation of the statute.

Starting from the lower court's misinterpretation of a law that does not address anything that happened here, the Tenth Circuit moves on to even more disturbing findings.

Here's more detail on the "interaction" that led to this lawsuit. Fraiser recorded a traffic stop of a suspected drug dealer. Things appeared to be getting out of hand. Frasier began recording on his tablet. Despite supposedly being otherwise occupied with the detainment of a dangerous drug suspect, cops decided to approach the guy sitting harmlessly across the street recording the arrest.

Behold cops calling out cameras like they've spotted an actual weapon:

As the suspect finally let go of the sock, Sergeant Bothwell called out “Camera.”

A camera is obviously far less dangerous than a gun. Nevertheless, the officers approached Frasier and asked him to make a statement. Frasier hid his tablet in his car, presuming (not unreasonably!) officers would try to make the recording disappear. And that's where this went:

Officer Evans told Mr. Frasier that he needed a witness statement from him. When he asked Mr. Frasier whether he had video of the arrest, Mr. Frasier claimed that he did not. Then, Officer Evans pointed to the back seat of his patrol car and told Mr. Frasier, “Well, we could do this the easy way or we could do this the hard way.” Mr. Frasier thought that Officer Evans was threatening to take him to jail if he did not produce the video. The officer handed Mr. Frasier a witness statement form, which he proceeded to fill out. After Mr. Frasier provided a skeletal written account of what he had seen (one that omitted the officers’ use of force against the suspect and the screaming woman), Officer Evans wrote a series of questions on the form that he then had Mr. Frasier answer.

The questions concerned whether Mr. Frasier observed “the officers do anything inappropriate” or use any force after “they had the suspect in custody,” and whether he had taken (and still had) any “video footage of the incident.” Mr. Frasier responded in writing that he did not see any inappropriate police conduct, that the officers stopped using force as soon as they had the suspect in custody, and that he took only a Snapchat photo of the arrest, which he no longer had a copy of because “Snapchat removes [footage] as soon as you send [it].” Mr. Frasier’s answers were all lies; he admitted that he lied on the police form because he was afraid that if he told the truth he “would have been incarcerated and the video that [he] took would be taken away.”

[...]

Mr. Frasier retrieved his tablet computer and showed it to Officer Evans. He and Officer Evans “ducked behind the open hatchback of a nearby SUV,” where they “were mostly hidden from view.” Officer Evans grabbed the tablet computer out of Mr. Frasier’s hands and began to search for the video of the arrest, asking him where it was. Mr. Frasier told Officer Evans that he could not search his computer without a warrant, but Officer Evans held onto it for thirty to forty-five seconds. While searching through it, Officer Evans called back over his shoulder, “I don’t see the video in here. I can’t find it.” An unidentified officer responded, “As long as there’s no video, it’s okay.” Officer Evans then handed the tablet back to Mr. Frasier.

Hey, that's pretty cool. Cops can grab witnesses and demand they answer -- in front of them -- whether or not they felt officers engaged in excessive force or misconduct. How's that for coercion? I sincerely hope the Denver PD isn't using the results of these involuntary polls to claim it's engaging in better, more respectful policing. That data is beyond useless.

It's hard to believe it gets worse than this but it does. The district court, despite some early missteps, came to the correct conclusion: this was a violation of Frasier's rights. Even though it concluded there was no clearly-established right to record police officers in this district in 2014 (when the incident occurred), it did say the Denver PD officers should have known they were violating rights when they went after the person recording them. Why? Because they had received training that made it clear recording cops was protected activity.

The Tenth Circuit Appeals Court, however, thinks training is worth less than circuit precedent, even though officers are always going to be far more familiar with PD training than on-point Appeals Court decisions. The district court dismissed the city from Frasier's lawsuit pointing specifically to the First Amendment training officers had received from the PD -- training that said citizens had a right to record them. Thus, it was clear the city wasn't at fault. The officers were adequately trained.

Adequate training means nothing, says the Tenth Circuit:

[T]he district court erred in concluding that the officers were not entitled to qualified immunity because they actually knew from their training that such a First Amendment right purportedly existed—even though the court had determined that they did not violate any clearly established right. There are two salient, independent grounds for concluding that the district court’s ruling was wrong. First, and perhaps most significantly, a defendant’s eligibility for qualified immunity is judged by an objective standard and, therefore, what the officer defendants subjectively understood or believed the law to be was irrelevant with respect to the clearly-established-law question. Second, judicial decisions are the only valid interpretive source of the content of clearly established law, and, consequently, whatever training the officers received concerning the nature of Mr. Frasier’s First Amendment rights was irrelevant to the clearly-established-law inquiry.

So, you can tell a cop it's a bad idea -- perhaps even a rights violation -- to screw with people recording police officers. Then the Appeals Court will come along and rule that cops only need to rely on court precedent -- something they're far less likely to be aware of than daily briefings and internal policy changes. What is "reasonable" for officers to know? The Tenth Circuit says it's only circuit precedent, no matter how esoteric. And it says this even when it says otherwise:

When government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Is it "reasonable" for officers to believe department training that says going after people who record officers likely violates their rights? Or is it "reasonable" for officers to believe they can continue to violate rights until a court is actually willing to establish precedent that aligns with their training? The Tenth Circuit says only the latter is "reasonable." Training given to all officers is still somehow "subjective" knowledge, even though (1) all Denver PD officers received the training and (2) it was based on legal decisions pointing to a presumed First Amendment right to record police officers.

It is therefore “irrelevant” whether each officer defendant actually believed—or even in some sense knew—that his conduct violated a statutory or constitutional right—more specifically, the First Amendment. [...] The district court therefore erred in denying the officer defendants qualified immunity regarding Mr. Frasier’s First Amendment retaliation claim based on their subjective knowledge of Mr. Frasier’s purported First Amendment right to record them on the public street performing their duties.

And I guess that's how it works: we don't expect cops to be legal experts but I think it's fair to expect they should be cognizant of their training. And their training said going after people recording them was a good way to get sued. These cops did get sued. But it's the Appeals Court that's handing down unearned forgiveness for these acts, one that says it really doesn't matter what cops know or don't know when it comes to rights violations.

Filed Under: 10th circuit, charles jones, denver police department, john bauer, john robledo, levi frasier, police, qualified immunity, recording police, russell bothwell

New York City Council Passes Police Reforms That Includes Ending Qualified Immunity For NYPD Officers

from the get-more-accountability-using-this-ONE-SIMPLE-TRICK dept

Qualified immunity is pure judicial cancer. This fact cannot be ignored. What began as a limited defense for decisions made in the heat of the moment has become the de facto response to civil rights lawsuits. The Supreme Court -- which conjured this new Section 1983 ejection seat out of thin air -- has only made it worse over the past few decades.

Qualified immunity is more bulletproof than the Kevlar vests worn by those who summon its protections most frequently. Efforts have been made to dial this back, but so far, we've yet to see them come to fruition.

Attempts to remove qualified immunity have faced massive amounts of opposition from some of the most powerful entities in the United States: law enforcement agencies and their unions. Despite this, efforts continue to be made to rein in something that has pretty much become a permission slip for rights violations.

The good news (via MagentaRocks) is that one ongoing effort to end immunity targets the largest law enforcement agency in the nation: the New York City Police Department. This package of reforms offers up some other useful changes, like requiring NYPD officers to live in the city and mandating quarterly reports on vehicle stops, broken down by ethnicity, race, and age. It also would strip the police commissioner of final say on cases recommended for discipline by the Civilian Complaint Review Board. This would prevent CCRB recommendations from being overturned by the NYPD, something that has happened with alarming frequency in the past.

But here's the big news: the end of qualified immunity for NYPD officers.

Sponsored by Brooklyn Councilman Stephen Levin, Intro. 2220-A ends qualified immunity for police officers, which gives officers an exemption for civil lawsuits unless proven by the plaintiff that the officer’s action directly violated civil rights.

The council’s legislation gives “a local right of security against unreasonable search and seizure,” in addition to excessive force.

Of course, this would be limited to cases handled solely by New York City courts. Federal civil rights lawsuits wouldn't be affected by this removal. Nor would cases handled by state courts. So, it will only affect a small number of lawsuits pursued entirely within the city's court system.

Since city lawmakers are limited to crafting laws that affect the city, this is the best they can do. It's better than doing nothing and it will help, even if it's severely limited. And the bill still needs to be signed by Mayor Bill de Blasio, who has offered his support for some police reforms, but hasn't exactly shown he's willing to take on the NYPD during his tenure in office.

It's a very small (but positive) change. But as small as it is, it's not small enough to keep the city's law enforcement unions from complaining about it.

The city’s police unions have vocally opposed the bill, saying ending qualified immunity could have a chilling effect on officer’s willingness to insert themselves into complex and dangerous situations to enforce the law.

I don't think that's true. Good officers will still insert themselves into these situations. Officers who like to play fast and loose with rights and civil liberties may choose to sit some of these situations out. Qualified immunity hasn't given us better, smarter cops. It has encouraged abusive behavior by giving officers a litigation escape hatch -- one that's rarely denied by courts.

Filed Under: nyc, nypd, qualified immunity

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.

Filed Under: george floyd, police, police brutality, qualified immunity

Federal Legislators Take Another Run At Ending Qualified Immunity

from the no-longer-above-the-law,-but-subject-to-it dept

Last summer as protests raged around the nation in response to the killing of an unarmed black man by a white Minnesota police officer, federal legislators offered up a solution to one of the hot garbage problems of our time. A federal police reform bill contained a number of fixes to policing in America, including one crucial element that would make it far easier for citizens to pursue lawsuits over rights violations: the termination of the qualified immunity defense.

Over the years, qualified immunity has morphed from a limited protection for officers to allow them to make split-second decisions in dangerous situations to a blanket excuse for rights violations. Thanks mainly to the US Supreme Court, qualified immunity now shields officers from large numbers of legitimate accusations of rights violations. SCOTUS has shifted the emphasis to judicial precedent, rather than any discussion of the alleged violations brought before federal court judges. As long as law enforcement personnel violate rights in new ways that aren't covered by existing precedent, the officers are allowed to dodge lawsuits, juries, and fact-finding.

The Supreme Court has made it easier for lower courts to dodge questions about rights violations -- and, in turn, prevent them from establishing new precedent -- by forcing them to defer to a limited test that only involves established precedent and a very limited examination of the facts of the case. Only recently has the Supreme Court realized it may have had this wrong. Two remands to the Fifth Circuit Court of Appeals (the circuit most protective of cops) in the past few months indicate the nation's top court now feels the lower courts have followed its damaging instructions too closely.

So, there may be hope going forward. But it will be slow in arriving and still somewhat limited by the Supreme Court's precedential blanket instructions on QI cases. Nonetheless, there is hope.

What may be faster-acting is some federal legislation. Far too often, courts defer to legislators who seemingly have zero interest in deterring the wreckage qualified immunity has wrought. Asking politicians to go head-to-head with some of their most powerful supporters is kind of a non-starter. But if it's legislation courts are demanding, at least a few legislators are willing to give it to them.

The last effort to eliminate qualified immunity died quietly, even as cities continued to burn. The effort has been renewed by a bipartisan group of legislators who have seen immunity and the damage done and refuse to offer their tacit blessing of this accountability escape hatch by doing nothing. Akela Lacy has more details for The Intercept:

Rep. Ayanna Pressley and Sens. Ed Markey and Elizabeth Warren, Democrats of Massachusetts, are introducing a bill to fully end qualified immunity, a legal doctrine that protects police and law enforcement officials from civil liability in cases where they are accused of violating someone's constitutional rights.

The "Ending Qualified Immunity Act" [PDF] would do exactly that, building on Rep. Justin Amash's attempt to terminate this bullshit last year, when the irons were hot and setting fire to precinct houses. The bill notes law enforcement has been on the wrong side of history since the Ku Klux Klan Act of 1871. Since then, law enforcement hasn't bothered to correct its course. It engages in biased policing pretty much all the time and sinks its funding into efforts that reinforce its foregone (and often bigoted) conclusions.

As the bill points out, qualified immunity actually subverts the intention of federal legislators. It was created solely by a single court with no deferral to legislators who had already expressed their intent through this legislation, which created a cause of action for citizens whose rights had been violated.

This doctrine of qualified immunity has severely limited the ability of many plaintiffs to recover damages under section 1983 when their rights have been violated by State and local officials. As a result, the intent of Congress in passing the law has been frustrated, and Americans’ rights secured by the Constitution have not been appropriately protected.

In short, screw qualified immunity. It undercuts the Constitution as well as legislative intent. With this bill, QI would no longer be considered a defense to allegations of rights violations.

It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or Federal laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

This doesn't prevent cops from escaping civil rights lawsuits. They still can. But they can't do it with a motion to dismiss prior to any fact-finding. Instead, they'll have to deal with lawsuits like most civilians have to: by bringing their own evidence and waiting for a judge to rule on the merits. In some cases, this will mean going to trial. And going to trial should never be considered a failure of the system. That's supposed to be the desired outcome. Instead, we've been given years of cops pressing the eject button and simply nodding along as allegations remain unaddressed, even when the courts are still supposed to assume plaintiffs' allegations are true.

This won't be the litigation apocalypse cops will claim it to be. Instead, it will put them on the same playing field the rest of us have to work with. Government employees should be holding themselves to higher standards. This bill only demands law enforcement officers abide by the same rules governing non-cop-related litigation.

Filed Under: congress, police, protests, qualified immunity

Supreme Court Rolls Back Another Horrible Qualified Immunity Decision By The Fifth Circuit

from the let's-start-this-trending! dept

The Supreme Court has done a lot over the years to shield law enforcement officers from accountability. It has redefined the contours of the qualified immunity defense to make it all but impossible for plaintiffs to succeed. Appeals Courts have been hamstrung by Supreme Court precedent, forced to pretty much ignore the egregious rights violations in front of them in favor of dusting off old decisions to see if any officer violated someone's rights in exactly this way prior to this case.

Since law enforcement officers are apparently unable to exercise judgment on their own, the courts often grant forgiveness to these poor single-cell organisms who couldn't have possibly known that, say, locking a prisoner in a feces-covered cell for days violated the prisoner's rights. And that's the conclusion the Fifth Circuit Appeals Court reached December 2019 in Taylor v. Riojas.

The Fifth Circuit is the worst circuit to bring a federal civil rights violation case. And it's still as awful as ever, even with Judge Don Willett -- who published a scathing dissent in another qualified immunity case -- sitting on the bench.

The only good news is that the Supreme Court may be slowly realizing its expansion of the qualified immunity defense is encouraging courts to give law enforcement officers a pass even when it's painfully clear rights have been violated. Almost a year after the Fifth Circuit ruled in favor of prison guards, the Supreme Court reversed this decision. There may have been no case exactly on point, but for the Supreme Court that's not a necessity when there's a clear rights violation.

[N]o reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.

This ruling was part of the Supreme Court's docket dispensation. No full opinion was issued. But it sent a message to the Fifth Circuit. And that message has been reinforced with another remand to the Fifth Circuit -- again for granting qualified immunity when it shouldn't have. (h/t Athul Acharya)

McCOY, PRINCE V. ALAMU, TAJUDEEN

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Taylor v. Riojas, 592 U. S. ___ (2020) (per curiam).

The Fifth Circuit handled Prince v. Alamu back in February of last year. Badly. It somehow managed to find that deliberately pepper spraying a prisoner in the eyes in retaliation for the actions of another prisoner was subject to qualified immunity.

Above, we held that the spraying crossed that line. But it was not beyond debate that it did, so the law wasn’t clearly established. This was an isolated, single use of pepper spray.

And that was enough to give the guard a free pass. As the dissenting opinion noted, the only reason qualified immunity wasn't stripped was because the guard didn't use his fist, a baton, or a Taser. That this involved pepper spray was the only thing separating it from being "clearly established."

The Supreme Court is to blame here. It has repeatedly rejected QI cases, telling lower courts they're supposed to read "clearly established" precedent narrowly, rather than find that similar cases (ones not exactly on point) gave government employees enough warning this new and novel violation of rights would be a violation of rights. With this reversal, the Supreme Court is reversing its own instructions. Hopefully this will continue. With enough reversals, qualified immunity will no longer be the accountability copout it has become.

Filed Under: 5th circuit, law enforcement, qualified immunity, supreme court

Appeals Court Tells Lying Cop No 'Reasonable' Officer Would Think It's OK To Tear Gas Journalists For Performing Journalism

from the pretty-much-as-clearly-established-as-something-can-get dept

For some reason, we, the people, keep having to shell out cash to employ a lot of unreasonable law enforcement officers.

We've already seen some federal courts respond to violent law enforcement responses to the mere presence of journalists and legal observers during protests. The targeting of non-participants by law enforcement has been met with injunctions and harsh words for the officers participating in these attacks.

Much of what's been covered here deals with months of ongoing protests in Portland, Oregon and violent responses by federal officers. But this appeals court ruling (via Mike Scarcella) shows the problem isn't confined to the Northwest or federal law enforcement. Cops are attacking journalists in other cities as they try to do nothing more than cover highly newsworthy events.

And the problem isn't new either. This case [PDF], handled by the Eighth Circuit Court of Appeals, deals with an attack on three Al Jazeera reporters covering protests in Ferguson, Missouri following the killing of Michael Brown.

Local law enforcement officers may not have been wearing cameras, but the journalists brought their own. The events that transpired were captured in the course of their attempted coverage of Ferguson protests. Fortunately, this footage exists. The version of events offered by the sued deputy is a lie. Here's what was captured by Al Jazeera cameras:

The SWAT Team approached the reporters as they prepared the live broadcast, a block and a half from the street where most of the protests occurred. Their video shows a calm scene. An unidentified officer begins shooting rubber bullets at them. They yell, identifying themselves as reporters. Anderson then deploys a single canister of CS gas (also known as “tear-gas”). It lands in front of the reporters. They move away from the camera, but can be heard talking in the background. An unidentified person walks past the camera. Other people stop in front of it. The police do not fire at them. One reporter re-appears in front of the camera, is shot at, and leaves. Another person walks past the camera (possibly the same unidentified person as before). A second group poses in front of the camera, thinking they are on CNN. They talk to the camera for over two minutes.

Minutes later, police deploy another canister of tear-gas at men standing on the corner, several feet from the camera. Over a speaker, the SWAT Team appears to ask the reporters to “turn the spotlight off.” SWAT Team members then lay down the lights and turn the camera lens toward the ground. The reporters re-appear. After speaking to the officers, they pack their equipment and leave.

As the court notes, this narrative (the one captured by cameras) is "disputed." But it's only "disputed" because Deputy Michael Anderson (the defendant) would prefer to use an alternate history to exonerate himself.

Anderson claims the reporters were told to disperse and turn off the lights but refused. He also claims he saw projectiles launched from the area of the bright lights. He says he had difficulty seeing what was going on. He believes there was an imminent threat to safety. He stresses that his sergeant ordered him to deploy the tear-gas.

Submitted in support of this narrative is Anderson's sworn declaration that everything he said is true, even when nothing on record supports his version of the incident.

Before the SWAT Team arrived, the reporters counter that their location was a calm scene. The videos support this. None records any orders to disperse. They also do not show any projectiles thrown from the reporters’ area. They do not show orders to turn off the light before Anderson deployed the tear-gas.

The court doesn't call Anderson a liar. It might have, if other questions had been presented. It's limited to determining whether or not Deputy Anderson should be awarded qualified immunity. Once this returns to the lower court, Anderson will get another chance to prove he's not lying. It seems unlikely he'll be able to, but he is definitely going back to the lower court and is definitely going to have to defend himself against at least one allegation.

The Appeals Court says Anderson's actions clearly violated the reporters' First Amendment rights. No qualified immunity on this count.

The videos confirm the reporters’ version of the facts. They do not show dispersal orders or flying projectiles. They do not show orders to turn off the lights before the tear-gas. Rather, they show a peaceful scene interrupted by rubber bullets and tear-gas. Anderson presumes disputed facts in his favor, which this court cannot do because he moved for summary judgment. See Duncan, 687 F.3d at 957. Taking the facts most favorably to the reporters, Anderson did not have arguable probable cause to use the tear-gas.

Even if the court were inclined to believe Anderson's apparent bullshit, he still wouldn't be granted qualified immunity.

Anderson is not entitled to qualified immunity even if his sergeant told him to deploy the tear-gas. Anderson cites the Heartland case for the proposition that §1983 “does not sanction tort by association.” Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 806 (8th Cir. 2010). True, but nothing in Heartland says that a government official is immune if a superior instructs him to engage in unconstitutional conduct. Instead, Heartland says that defendants must be individually involved in the unconstitutional act to be liable under §1983. Id. See also White, 865 F.3d at 1076 (“[A] plaintiff must be able to prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’ ”), quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, it is undisputed Anderson was involved. He is the one who deployed the teargas at the reporters.

The deputy argued the reporters weren't engaged in First Amendment activity. Instead, they were ignoring a dispersal order. Again, the court points to the recording which shows no dispersal order being given during the entirety of the incident. Even if one had been, there's no reason to assume a dispersal order requires reporters to leave the scene. Reporters reporting on newsworthy events are not engaged in unlawful activity.

The deputy also argued the plaintiffs were required to provide proof of his motive -- his alleged desire to retaliate against the reporters for engaging in protected activities. Wrong again, says the court. There's enough doubt in here a jury should examine it.

To support its conclusion that the reporters had alleged enough about causation to survive summary judgment, the district court noted that the videos show a peaceful scene interrupted by Anderson’s tear-gassing of the reporters, but not others. Quraishi, 2019 WL 2423321, at *7 (“The raw footage from Al Jazeera, however, showed that numerous people came into the area where the reporters were standing, but only the reporters were shot at and tear gassed.”). The reporters were singled out—other people were in their immediate area but only the reporters were tear-gassed at the scene. (Minutes later, men were tear-gassed several feet from the camera.) Anderson’s motive is not “so free from doubt as to justify taking it from the jury.”

And, again, the court highlights the video that shows a chain of events that contradicts Anderson's claims.

The district court’s summary judgment facts are not based on allegations of actions by unknown individuals. They come from videos showing Anderson deploying the tear-gas. As noted, the district court does not have to rely solely on Anderson’s account of events to discern what motivated him.

It is clearly established that firing tear gas at journalists to prevent them from covering newsworthy events is a violation of their rights, the Appeals Court says, rattling off a list of ten previous decisions reaching the same conclusion. Any assumption otherwise is unreasonable.

A reasonable officer would have understood that deploying a tear-gas canister at law-abiding reporters is impermissible.

Deputy Anderson is headed back to the district court to face the reporters' First Amendment allegations, as well as state-level excessive force claims. (The Appeals Court grants qualified immunity on the Fourth Amendment claims, noting that being tear-gassed is not a "seizure" as there is no detention or other form of police custody.) And it would seem he's destined to lose. His version of the events isn't supported by anything tangible. The other side has plenty of footage showing things didn't happen the way Deputy Anderson apparently wishes they would have happened. This isn't a "factual dispute." This is a recording contradicting a law enforcement officer's lies. Hopefully, the district court will further highlight this, shall we say, "disparity" upon his return.

Filed Under: 8th circuit, journalism, michael anderson, police, protests, qualified immunity, tear gas
Companies: al jazeera

Illinois Legislature Sends Massive Police Reform Bill To The Governor's Desk

from the it's-broken-so-start-fixing-it dept

A serious set of police reforms has passed through the Illinois legislature and is headed to the governor's desk. You can tell it's a good set of reforms because the police union hates it.

In the final hours of the legislative session, state senator Elgie Sims did no one any favors by introducing a 764-page amendment to the reform bill that had already passed. That's not a cool move, no matter what the ends are. No one can possibly hope to read and comprehend something of that size with only a few hours left in the session, as another state senator pointed out on his Facebook page.

But it's not as if the state senators had no idea what was contained in the bill. More than a week earlier, one of the state's police unions was already complaining about its contents and asking legislators to vote the bill down. The union's list of complaints looks like a comprehensive set of reforms -- something almost any other person or entity in the state would view as positives. Here's the Illinois Fraternal Order of Police's bitch list about the earlier, 611-page police reform bill, followed by commentary:

Eliminates Qualified Immunity for police officers, making them civilly liable to siren chasing trial lawyers

Qualified immunity needs to go. It has encouraged bad behavior by cops by making it almost impossible for them to be held accountable for their actions. As one Appeals Court judge recently pointed out, qualified immunity turns civil rights litigation into a rigged game citizens almost always lose.

Eliminates Officer’s rights to Collectively Bargain, creating a “special class” of public employee who does not have these rights in Illinois

A step towards eliminating police unions is a step towards accountability. This point can't be argued. History has proven this much.

It Eliminates impartial arbitration over burdensome residency requirements

Asking cops to live near the people they serve shouldn't be burdensome. When cops are commuting from distant suburbs and neighboring towns to protect and serve, it's pretty tough for them to feel any empathy for the people they police or contribute to any sense of community.

Allows for unrestricted and ungoverned disciplinary policies of law enforcement officers

Likely hyperbole, just like the line that opens the FOP's post:

Late on January 5th, the Illinois General Assembly filed a 611 page bill that eliminates law enforcement as we know it from every community in the State.

LOL. Ok.

Prohibits departments from taking advantage of cost-saving federal surplus programs

An less-dishonest phrasing would explain that this bill prevents cops from acquiring military gear like assault rifles, grenade launchers, and armored vehicles. The Defense Department's 1033 program has driven a wedge between the police and policed, and has delivered no measurable improvement to law enforcement safety or crime reduction.

Allows officers to be punished or fired based on anonymous and unsubstantiated or unverifiable complaints

Oh, I doubt that.

Mandates that those unsubstantiated and unverified complaints be kept to be used against officers forever, with no destruction and no limits on how they can be utilized to inflict harm on officers

Stop your crying. Arrest records are permanent, even if arrestees are never convicted of the alleged crimes. There's no reason officers shouldn't have a permanent record that reflects their years of service -- both the good and the bad. Files will note claims that are unsubstantiated and unverified. Those won't hurt officers because, well, verified/substantiated complaints rarely have a negative effect on law enforcement officers' careers.

Substantially increases both initial and ongoing education requirements with no money to pay for the increased costs and no assurances that the courses will even be offered

That's a problem that needs to be addressed. But dismissing it out of hand because all the details aren't in writing yet is counterproductive.

Mandates the use of body cameras by all departments for every officer with no money to pay for the cost of those cameras

Pretty sure the police will pay for the cameras. They'll pay for it the way they pay for everything else: tax dollars. Or, if money's tight, maybe cops could free up some of their asset forfeiture funds to buy this equipment.

Defunds any department that does not comply 100% with the draconian requirements of the legislation

Again, hyperbole. There should be consequences for not complying with [checks notes] state law, but very few local governments are actually willing to defund police departments. Losing some of your budget because of compliance failures is not "defunding."

Eliminates funding for law enforcement agencies

LOL. No.

Eliminates Cash Bail

Cash bail simply allows the less fortunate to see their fortunes suffer even further. It's pretty difficult to keep your life running while in jail and it's impossible to earn money to pay bail while behind bars.

Enacts multiple benefits for felons

Who even knows what the FOP is saying here. The FOP might be referring to the felony murder rule, which is curtailed by this legislation. Felony murder is a hell of a thing, allowing people to be charged with murder if some act they committed resulted in the death of a person -- even if they never directly interacted with that person. For instance, selling drugs that later result in someone's fatal overdose can trigger the felony murder rule.

Prohibits use of force in almost all situations, and makes officers criminally liable for virtually any use of force

No. It doesn't. It tempers the use of force by ensuring it's justifiable. And when it isn't, it can result in criminal charges. The implementation of standards for force deployment is not a "prohibition" just because it eliminates some officer discretion.

Removes prohibitions against obstructing police officers

It doesn't do anything of the sort. It simply makes it a misdemeanor not punishable by more than 48 hours in jail or 100 hours of community service. This makes it less likely obstruction charges will be used to punish people for not being sufficiently deferential to cops.

Charges officers with Official Misconduct, a class 3 felony, for banal and incidental issues

One man's banal is another man's egregious offense. What cops may think are "banal" violations are actually disturbing to those outside of law enforcement and often surface indicators of systemic problems departments aren't dealing with properly. Increasing the severity of the punishment is a good deterrent.

That's the FOP's take. And the FOP really didn't need to be so worried about it. No one was going to be able to pass a bill with all of this included. The last-second amendment stripped out a bunch of the really good stuff.

Some more controversial elements were eliminated from the final version of the bill to secure its passage. One would have reduced the power of police unions to bargain over disciplinary procedures. Another would have ended qualified immunity for civil rights violations, which would have made individual officers — instead of taxpayers — financially liable if a court found they intentionally violated the constitution.

Dammit. Passing a qualified immunity ban somewhere in the nation would be a great start -- a test case to see if it actually would result in the parade of litigation horrors cop officials claim it would. That will have to wait for another day and another legislature.

But a lot of good stuff remains. The passed version expands the state's officer misconduct database and lengthens the retention of disciplinary records. It gives the state board more power to strip misbehaving officers of their certification. It forces police officers to provide more details on arrests whenever resisting arrest is one of the charges. It adds a duty to intervene when officers witness other officers violating rights. It enacts new procedures for no-knock search warrants. And it mandates body cam use across the state by 2025.

The governor has stated he will sign the bill. This is good news for Illinois residents. And it should be good news for cops… at least the good ones. This doesn't change anything good cops already do. It only makes things worse for bad cops, despite the FOP's hysterical claims about it being the end of law enforcement. It should be a new beginning -- one that can be used to rebuild failing agencies and help them rid themselves of their worst components.

Filed Under: 1033 program, cash bail, elgie sims, illinois, law enforcement, police militarization, police reform, police unions, qualified immunity