Tucker Carlson Tonight is the one media opinion show I’ll watch. He is good about covering stories that nobody else in the media will.
That doesn’t mean I agree with everything he says, and for the last few days he’s been on a tear about Republicans who want to help revise the law on qualified immunity.
Tucker’s accusation is that they are closet Leftists or have been compromised by Koch Brothers’ money.
I don’t know about those politicians specifically, but I know that I have never taken a dime from the Koch Brothers and am not a closet Leftist and I want to revise qualified immunity. My friends are generally not Leftists and they haven’t taken Koch Brothers’ money either, and they also are against qualified immunity.
I understand the point Tucker is trying to make about qualified immunity protecting officers who have to make tough decisions in the heat of the moment. I also understand that qualified immunity doesn’t attach in criminal acts.
The problem is that there is a wide area in between these two scenarios where qualified immunity overprotects officers who have engaged in what can only be described as gross negligence.
Let’s start with the case of Leo Lech. An armed shoplifter broke into his house and barricaded it against the police. SWAT was called in and after a 19-hour stand-off, the SWAT raid did so much damage to the house that it was condemned and destroyed. The damage was valued at $580,000 but insurance only paid $345,000, leaving Lech with $235,000 in uncovered damages. He sued the police and lost.
In Georgia, an officer tossed a flashbang into a crib critically injuring a baby’s face and blowing a hole in his chest. While the family settled with police, the officer who threw the grenade was acquitted and protected by qualified immunity.
I wrote about the Swatting of Andrew Finch before. A jumpy officer shot finch at a distance of 35-40 yards with an AR-15 across four lanes of traffic a sidewalk and a front yard in the dark. Multiple officers were screaming multiple directions without a loudspeaker at that same distance when the officer who had a bad view of the situation fired a shot in a clusterfuck of confusion failed command and control. That officer was not charged and qualified immunity was attached.
The shooting of Breonna Taylor in Kentucky is another cluster fuck. She was shot eight times by plainclothes police conducting a no-knock raid at 1:00 am. Her boyfriend thought their place was being broken into and defended himself with a handgun. He was shot and Breonna was killed. Let me repeat, a no-knock raid by plainclothes officers at 1:00 am. Anyone of us would have looked at three guys in civilian clothes kicking in our door as a home invasion.
Radley Balko of the Cato Institute has covered just how often police engage in no-knock raids and get the address wrong and shoot up innocent people. The LAPD even has a special team to deal with these sorts of fuck-ups.
I believe that qualified immunity should not protect gross negligence.
As a PE, if I make a mistake of gross negligence and people get hurt or die, I will get sued and perhaps go to jail.
If your surgeon drops some piece of medical equipment on the floor, picks it up, says “five-second rule,” and puts it in you, and you die of an infection, he is personally liable.
Professional law enforcement should do due diligence before a raid and make sure that they get the address right and know if there are kids in the house before throwing stun grenades at babies, shooting innocent people, and burning the house down.
Police shouldn’t get a mulligan for killing someone because they went off half-cocked.
I don’t believe qualified immunity should protect “We shot up apartment 9b instead of 9d, oops.”
It’s not unreasonable to hold officers to a standard of professionalism that we ask other professionals to be held to, namely being personally responsible for major, life-ending fuckups due to carelessness or negligence.
That doesn’t make me some sort of closet socialist that wants to abolish the police. It makes me someone who doesn’t want to die because some officer didn’t pay attention to the number on the mailbox before taking a battering ram to my door instead of my neighbors.
Most of the scenarios you listed could probably be solved by the elimination or at least reduction of no knock warrants. Otherwise, what is “gross negligence”? Who defines it? Open up this pandora’s box, and you’ve got situations where an officer is forced to put handcuffs on a non-compliant subject, and the person winds up with a broken wrist, and the officer then gets personally sued, his life ruined, everything he’s ever worked for gone. “The white officer’s failure to double lock his handcuffs is a result of gross negligence that caused the black suspect’s wrist to break.” Injuries will be faked. Law firms will rise up, with the specific goal of suing individual police officers, especially given the fat settlement they can get from professional liability insurance, which by the way will either become prohibitively expensive or just cease to exist. Which brings us to the defund the police movement. Removal of qualified immunity will be an indirect way to give these people what they want, because no one who’s sane or decent will work in law enforcement anymore.
Elimination of no-knock warrants would help.
Sure there will be scumbags and their lawyers who try to make everything a payday. Doctors have to deal with this too, and yes it makes our medical care more expensive. But the worst doctors tend to get weeded out as uninsurable, which imho is a good thing.
Of course removal of qualified immunity wouldn’t be a perfect answer, and of course it would cause other problems. But what we have now is broken. I say let the experiment be played out and see what happens.
Qualified Immunity doesn’t exist for other professions. Therefore it shouldn’t exist for this profession. The basic argument for it is: A good cop doing his best has a bad day and gets sued for everything he has, leaving him with nothing.
The other side of that sword is “A bad cop doing a half ass job does a bad thing and gets away with it because he’s a cop.”
The suggestion being made is that we should transition from qualified immunity to some sort of insurance methodology. Similar to what doctors do. Doctors get away with homicide way to often. But they can be sued for malpractice. And they are, often. My brother is a surgeon and gets sued about once every other year. In no case has he been found guilty. I’m sure his insurance company has paid rather than fight on a few occasions.
That is just part of being a doctor. I don’t know a single doctor that hasn’t been sued for malpractice. As bro says, a diabetic shows up and needs surgery, he is high risk, the probability of a poor outcome is very high. As a skilled surgeon he can look at the risk, inform the patent and then do the surgery. If the patent dies due to complications, bro is going to get sued. If he takes the “safe” choice, he will choose not to do the surgery and the patent dies of complications of diabetes after some miserable time but bro doesn’t get sued.
Police officers don’t make as much as doctors and can’t afford the same levels of payment for malpractice insurance. That would need to be addressed. The insurance might be covered by the department instead.
The thing is, that cops that have too many claims against their insurance will see their rates go up. That cost is noticed. EVEN if somebody else is paying the bill. That would, hopefully, lead to that person being put in places where they are less likely to get sued.
Do you have a different solution for both sides of the sword?
Agreed.
If there are no consequences for making mistakes on an individual level, there is no incentive for the individual to not make them. And there is no feedback to improve performance in the future.
Colorado has taken action with passage of SB-217:
Colorado, like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that “qualified immunity is not a defense to liability pursuant to this section.”
https://www.cato.org/blog/colorado-passes-historic-bipartisan-policing-reforms-eliminate-qualified-immunity
It will probably take 5-10 years of court cases for all the good and bad of this law to be discovered.
If the police have qualified immunity removed, then so should other Government employees and officials.
Yes of course.
I read an illuminating op-ed in the WSJ a week or so ago (by a pair of constitutional lawyers who regularly contribute). The key revelation is that QI was invented by the Warren court, well known for inventing all sort of non-existent stuff and somehow making it stick.
I see and agree, but the malpractice model that doctors face is hardly a great example to follow.
A friend of mine that is a Doctor once saw a 25 year old female in the ER who was complaining of abdominal pain. He gave a pregnancy test and it was inconclusive. Sonogram was also inconclusive. Fearing a tubal pregnancy, he contacted an OB/GYN for a consult. Since it was a Friday night, the OB said that she should be discharged with instructions to follow up with the OB at his office on Monday. By then, if it WAS a tubal pregnancy, the tests would be more conclusive.
The woman never showed up to the appointment. Three weeks later, she collapsed on the beach in Miami. It was a ruptured tubal pregnancy. She sued because my doctor friend did not make sure that she actually went to the OB appointment. They settled out of court for $50,000.
THAT is the danger of making it like malpractice. Not only that, but malpractice insurance for cops is no different than what we have now- the taxpayers wind up paying for it either way.
Maybe a court of sorts for police, where each use of force is heard. Any cop found to be out of bounds is permanently barred from being a cop, and forfeits all pension benefits. Less incentive for ambulance chasing attorneys, but more incentive for cops to be sure of what they are doing.
Chicago has, I think, two of those special review boards for cops. They’re packed with people who hate cops. One of them was involved in the anti-cop demonstrations recently.
I don’t think cops get fair hearings from those people.
I think a regular jury trial is fairer than the “citizens’ review board” and the such.
Overall I agree.
The problem with qualified immunity is that it assumes the officer’s actions were both taken in Good Faith and “qualified” — by training, by experience, by evidence, by common sense, etc. — but in many of the stories we’re seeing the officers acted recklessly, negligently, downright stupidly, or in Bad Faith.
“Wrong address” when you’re a Uber Eats driver might be laughable. But “wrong address” when you’re breaking down a door with lethal force is an entirely different issue. Because the stakes are higher, an officer should be expected to make DAMN sure it’s the right place, and failure to do so should be an indicator that they weren’t “qualified” to be there and make the call to go in.
If a first-day Uber Eats driver can double-check an address, then a career LEO can, too. If someone dies or is permanently injured because of that mistake, that should not be an “Oopsie! J/K! LOL!” moment.
Ditto for “not knowing there are children in the home”. Who plans a no-knock raid and doesn’t do any due diligence about what or who they might find inside?
And for using tear gas and flash-bangs together. Tear gas is flammable, and the flash-bang igniting it makes for big kabooms. By now, officers should know that and plan accordingly.
And for the truck shot up by LAPD during the Chris Dorner manhunt, with two ladies inside. Multiple magazines expended because they thought it might be his based on the description … which was for a different make, model, and color (literally, nothing matched except “pickup truck”). It’s amazing the ladies survived — the truck looked like Bonnie and Clyde’s car — but the officers were exonerated due to QI.
Basically, QI has, in practice, evolved too close to the absolute immunity enjoyed by prosecutors and judges, and needs to be reined in.
Now, do I think that officers need to be charged with murder and hate crimes every time a suspect with a higher relative melanin content is harmed, or held personally liable for reasonable actions taken in Good Faith? No, but there is some balance to be found between “Anything goes because ‘qualified immunity’!” and “Get the racist pigs for all the things!!!!” I think removing QI for demonstrable gross negligence and recklessness is a good start.
I see nothing in the Constitution or its amendments that permit the government to kick down your door. It speaks of search warrants being required. The only sane interpretation of that requirement is that the warrant has to be presented to the resident. Kicking in the door is not “presenting” a warrant, it’s a home invasion with threat of deadly force that clearly authorizes a response with deadly weapons, and should be viewed as attempted murder, not as a proper law enforcement procedure.
So quite apart from the debate about QI, it seems ironclad to me that “no knock” warrants have to be absolutely, completely, and universally banned on pain of major jail time.
I’m not a leftist in the slightest, but I fully support stripping cops of QI in it’s entirety, as they’ve repeated proven that they don’t deserve it.
It should be yanked for prosecutors as well. One knowingly violates the law, hides exculpatory evidence, lets cops lie on the stand, should damn well be liable for damages.
That would be a good start, but the correct answer for such prosecutors is (1) impeachment and removal, (2) conviction of felony infringement of rights and a long term in prison, (3) disbarment.
Unfortunately, prosecutors seem to be even more thoroughly immune from any punishment for any malfeasance in office no matter how extreme.
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