Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit illegal misconduct unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.
In Pauly v. White, 874 F.3d 1197 (10th Cir. 2017), the Tenth Circuit used qualified immunity to shield three police officers who brutally killed an innocent man in his home. The officers had no probable cause to think Samuel Pauly had committed any crime, but they stormed his home with guns drawn and shouted that they had him surrounded—yet failed to identify themselves as police. Mr. Pauly and his brother reasonably believed they were in danger and retrieved two guns to defend themselves. After his brother Daniel fired two warning shots to scare away the unidentified attackers, Samuel was shot dead by one of the officers—Ray White—through the front window of his home.
The Tenth Circuit held that Officer White’s use of deadly force was objectively unreasonable and that it “violated Samuel Pauly’s constitutional right to be free from excessive force.” But the court still granted Officer White qualified immunity; there was no prior case with sufficiently similar facts, so the unreasonableness of his conduct was not “clearly established,” in the court’s view. What’s more, the court held that because Officer White had qualified immunity, the other two officers automatically received immunity as well, even though their own reckless conduct caused Officer White to commit the unlawful shooting.
This decision was erroneous even under existing precedent, but it also throws into sharp relief the shaky legal rationales for qualified immunity in general. The text of Section 1983 makes no mention of any sort of immunity, and the common-law background against which it was adopted did not include a freestanding defense for public officials who acted unlawfully; on the contrary, the historical rule was that public officials were strictly liable for constitutional violations. In short, qualified immunity has become nothing more than a “freewheeling policy choice” by the Court, at odds with Congress’s judgment in enacting Section 1983.
The Cato Institute has therefore filed an amicus brief urging the Court to hear Mr. Pauly’s case and to reconsider its misguided qualified immunity jurisprudence. This brief will be the first of many in an ongoing campaign to demonstrate to the courts that this doctrine lacks any legal basis, vitiates the power of individuals to vindicate their constitutional rights, and contributes to a culture of near-zero accountability for law enforcement and other public officials.
This week I made my debut at In Justice Today, a blog founded by the Fair Punishment Project at Harvard Law School. My first post warns reformers not to focus solely on individual racist officers because color-blind policies can also have terrible impacts on communities of color:
While it is entirely fair to say that more crime justifies a greater police presence in a segment of a city, that crime does not — or, rather, should not obviate the constitutional rights of the people who live in that area. If statistics showed there were more child pornography producers and distributors in white neighborhoods, the police would not be justified going door to door to intimidate presumptively innocent residents to get consent to search their computers to combat child pornography. Residents would be outraged to be treated as criminal suspects and intimidated to surrender their rights. Yet the GRU eviscerates Fourth Amendment protections for young black men walking down the street as policy, irrespective of any racial prejudice by the officers.
If a policy is damaging a community, the good intent in the officers’ heart is functionally irrelevant.
You can read the whole post here.
In a speech about criminal gangs before police officers on Long Island, New York today, the President of the United States openly encouraged police officers to abuse people they arrest and take into custody. Daniel Dale of the Toronto Star tweeted that President Trump explained that didn’t want officers to protect suspects’ heads when putting them in police cars, saying “You can take the hand away,” which drew the officers’ loud approval. Concurrent reporting from Asawin Suebsaeng of the Daily Beast confirmed that the call for police brutality drew “wild applause.”
The president’s comments are disgraceful and anathema to responsible policing and the Rule of Law. Causing intentional injury to a handcuffed suspect is not only against police procedure, but is a federal crime for which police officers have been sent to prison. What’s worse, the reaction of the crowd of officers should strike fear into the heart of every parent on Long Island, particularly those of black and Hispanic young men who fit the stereotypical description of the gang members President Trump described.
In the name of law and order, the president made a mockery of the Rule of Law in his call for illegal violence against presumptively innocent suspects. It is a shameful day for the presidency and police agencies across the country should condemn the president’s irresponsible and indefensible comments in the strongest possible terms.
Dearest NPMRP readers,
I wanted to take a moment to say that the daily feed is on indefinite hiatus. We’re not shutting the site down, we’re just taking stock of what we are and what we’re trying to do. Although we are not currently publishing the daily feed, we are continuing to collect misconduct stories.
The goal is to be the best website we can be for you but we’re figuring out how to make that happen. Keep us in your feeds, we’re not going away. Keep an eye on this space for updates.
Here are the nine reports of police misconduct tracked for Wednesday, July 12, 2017:
- Bexar County, Texas: An officer was arrested for family violence. ow.ly/RzB730dzcFf
- Update: Orlando, Florida (First reported 8/23/16): One of two officers fired last August was rehired to avoid an arbitration loss. He has been re-assigned to airport duty, given 25 public complaints on his record. ow.ly/jrst30dzdvV
- Update: Columbus, Ohio (First reported 4/12/17): An officer was fired for kicking a suspect in the head while the suspect was pinned on the ground by another officer. ow.ly/934L30dzdY3
- El Paso, Texas: An officer was placed on leave after he was arrested for negligent homicide for the bathtub drowning death of his infant. ow.ly/f9hc30dzep5
- Newark, New Jersey: Two officers were disciplined for unrelated misconduct. One was suspended after he punched a subdued suspect; the other was reprimanded for causing $300 in damage to a prosecutor’s door in a fit of anger. ow.ly/TSYK30dzn2z
- Update: Niagara County, New York (First reported 3/8/16): The County will pay the family of a man killed in a crash caused by deputy $2,750,000. The now-former deputy pled guilty to three moving violations and was ordered to pay roughly $500 in fines. ow.ly/2sdZ30dzSPy
- Dawson, Georgia: An officer was arrested for pulling a gun on someone during an off-duty altercation. ow.ly/ZSNw30dzV7p
- U.S. Customs and Border Protection: An officer pled guilty to an interstate marijuana smuggling conspiracy. ow.ly/5DTe30dzVVy
- Update: El Paso County, Colorado (First reported 9/6/16): The now-former sheriff was acquitted of three of seven tampering and misconduct charges. The jury deadlocked on the remaining four charges. ow.ly/WvfS30dA3FD
Here are the eight reports of police misconduct tracked for Tuesday, July 11, 2017:
- Update: Baton Rouge, Louisiana: The City faces another federal lawsuit filed by protesters who were arrested following the Alton Sterling shooting ow.ly/RDNJ30dxltO
- St. Johns County, Florida: A deputy was arrested for domestic battery for allegedly punching a woman in the face. ow.ly/iqx330dxqr3
- Update: Tulsa, Oklahoma (First reported 8/20/14): A now-former officer’s third trial for killing his daughter’s black boyfriend ends in mistrial. ow.ly/UH8d30dxrnY
- Alachua County, Florida: A deputy had his child abuse charge dropped, but he was fired for the incident. ow.ly/7WmX30dxt9b
- New York, New York: An officer was arrested for biting and choking his wife. The report notes he has prior arrests including DUI and child endangerment. ow.ly/9adz30dxAb3
- Update: St. Anthony, Minnesota: Officer Yunez, the officer who fatally shot Philando Castile, has accepted $48,500 severance to leave the department. ow.ly/aL4P30dxT5v
- Update: Lantana, Florida (First reported 3/6/17): An officer pled guilty to distributing obscene material and resigned after sending pornographic material to teens. ow.ly/eWI130dy42A
- Chicago, Illinois: The police are being sued by a man who claims he was incorrectly included in a gang database, making him unfairly excluded from getting DACA status. ow.ly/QerR30dyf3Q
Here are the nine reports of police misconduct tracked for Monday, July 10, 2017:
- Fall River, Massachusetts: An officer was arrested for assaulting a female family member and also charged with six counts of improper storage of firearms ow.ly/o0Ws30dtXJW
- Update: Horry County, South Carolina (First reported 4/6/16): A detective will reject proposed plea deal for sexually assaulting crime victims. ow.ly/Tl0W30dtY9P
- McClain County, Oklahoma: A deputy was fired after he was arrested for reckless driving. He was caught drag-racing at 128mph while off duty. ow.ly/WUGR30dtYqG
- Aurora, Illinois: An officer was suspended and charged with electronic harassment for improperly accessing law enforcement database information. ow.ly/x9IO30dtYE9
- Update: Lorain, Ohio (First reported 11/16/16): The City agreed to pay $35,000 to a suspect that was punched by a police officer at the home of the officer’s ex-girlfriend. The suspect was acquitted of the charges. The officer was suspended for 10 days. ow.ly/vA6330dtYMv
- Nogales, Arizona: An officer who was arrested for DUI after a crash remains on duty. Critics allege a double-standard in the case’s handling. ow.ly/sfxD30dtZaS
- Roswell, Georgia: A detective was suspended 30 days for showing up to firearms training course with alcohol in his system. ow.ly/lBL430dtZom
- Pasco County, Florida: A deputy who also served as an SRO was fired for sending inappropriate sexual messages to students via social media. The prosecutor does not believe those messages constituted a crime, but the now-former deputy will be charged for illegal access of a law enforcement database. ow.ly/pIxJ30dtZxm
- Albuquerque, New Mexico: An officer was fired after being charged with DUI after a hit-and-run. ow.ly/yns330dtZFK
Here are the nine reports of police misconduct tracked for Friday, July 7, 2017:
- Update: Newcomerstown, Ohio (First reported 4/19/17): A now-former officer was indicted for lying about being shot in the line of duty and forging documents for benefits. ow.ly/sFkS30dqZgA
- Dallas, Texas: The officer who fatally shot Genevive Dawes was among three officers fired for unrelated incidents by the interim chief. One officer was fired for causing an auto accident and failing to stop to render aid and the last officer was fired for beating a child with a surge protector while off duty. ow.ly/K4KJ30dqZH6
- Vandergrift, Pennsylvania: An officer was charged with assault and harassment for an off-duty incident with a 14-year-old boy ow.ly/Vh1O30dr1Za
- Update: Pasadena, California (First reported 2/22/17): An officer is being investigated for illegal firearms dealing. A federal search warrant was served on his home, but no charges have yet been filed. ow.ly/M7Ye30dr2mt
- Green Bay, Wisconsin: An officer was charged with forgery for signing his ex-wife’s name on a car title without her consent. ow.ly/V7fr30dr2Q8
- Bellevue, Nebraska: A detective was arrested along with his wife following a domestic dispute. ow.ly/ppB330drN3B
- Del Rio, Texas: An officer was arrested on a misdemeanor theft charge. ow.ly/mC0130drNls
- Mahoning County, Ohio: A deputy accepted a plea deal and dropped the appeal of his termination after he was allowed to resign. He plead guilty to misdemeanor OVI and weapons charges. The lesser charges will leave him eligible for future law enforcement employment. ow.ly/gr9630drTIQ
- Update: Baltimore, Maryland: Three officers were indicted on additional charges of burglary following February racketeering indictments with several other officers. ow.ly/96WH30ds1Nv
Here are the eight reports of police misconduct tracked for Thursday, July 6, 2017:
- Update: Utah Department of Public Safety: A now-former officer pled guilty to impaired driving. The weapon and open container charges were dropped. He was fied $1,500. ow.ly/Oak030dotvc
- Cherokee County, Georgia: A deputy was arrested for DUI. ow.ly/wDEN30dou5M
- St. Johnsbury, Vermont: The chief resigned after he was suspended for undisclosed allegations of misconduct. ow.ly/Jnyf30douke
- Purcell, Oklahoma: An officer was arrested for violating a protective order filed by his estranged wife. He had previously been suspended for an unrelated incident. ow.ly/A9aN30douwa
- Ville Platte, Louisiana: The City is being sued by a woman who claims a marshal deputy forced her to perform sex acts on man while he watched. ow.ly/Z27h30dovp0
- Carteret, New Jersey: An officer was charged with assault and misconduct for beating a teenage crash victim. ow.ly/AJRY30dovIx
- Update: Baton Rouge, Louisiana: Two officers were acquitted of being lookouts for a third officer as he raped a woman while all were on duty. The third officer was also acquitted. ow.ly/sZ9v30dowyQ
- Port Arthur, Texas: An officer was arrested for assaulting a woman in Liberty County. ow.ly/eYp730dozvd
Here are the nine reports of police misconduct tracked for Wednesday, July 5, 2017:
- Update: Atlanta, Georgia (First reported 6/28/17): The officer who was captured on Black Lives Matter video punching a man in the face during an arrest was suspended 20 days. ow.ly/Fi4A30dlJ54
- Boston, Massachusetts: An officer was suspended for a year, though will serve just six months of that, for posting a racist video involving his fellow officer to social media. The other officer was filmed without his knowledge and was originally disciplined for the video until he established is ignorance of the video’s production. ow.ly/F8Gi30dlTLB
- Robstown, Texas: An officer was arrested for DUI after a traffic stop in Corpus Christi. ow.ly/y7Q130dlUv1
- Atkinson County, Georgia: A deputy was fired and is now under criminal investigation for allegedly sexually assaulting a woman while he was on duty. ow.ly/mf4C30dm3Uz
- St. Petersburg, Florida: A longtime officer was arrested for soliciting a sex worker while he was off duty. ow.ly/kaYj30dm4TP
- Bartow, Florida: Officers are under investigation for releasing a K-9 on unarmed men while serving an arrest warrant. ow.ly/B8lK30dm5qW
- Franklin, Tennessee: An officer was charged with harassment for sending death threats via text and voice messages. He was fired. ow.ly/w85i30dm5Hi
- Nebraska State Patrol: The superintendent was fired by the governor, other officers and employees have been suspended. The FBI is investigating evidence tampering involving a fatal crash. ow.ly/Jknx30dm6n3
- Indianapolis, Indiana: An officer was arrested for domestic violence and the chief has moved for the officer’s termination. ow.ly/YChM30dm6MA