Qualified immunity is a legal doctrine invented out of whole cloth by the U.S. Supreme Court that protects government agents, including particularly law enforcement officers, who violate someone’s constitutional rights from federal civil liability. This website is dedicated to explaining how and why the qualified immunity doctrine needs to be eliminated.
There are many technical aspects to the doctrine, which are discussed in more detail elsewhere on this site, but the general public needs to know these four basic facts.
Qualified immunity is:
- Unfair: When a government official violates your civil rights, you should be compensated. Qualified immunity denies compensation to individuals who have been wronged by the government.
- Unaccountable: Law enforcement agencies at every level of government have proven unable or unwilling to appropriately discipline officers who violate people’s constitutional rights. Likewise, it is nearly impossible to convict an officer for violating someone’s rights while they were on duty. Thus, in most cases, suing an officer is the only viable means a victim has of seeking redress for a constitutional violation. But qualified immunity shields officers from lawsuits even when the court finds that they violated an individual’s constitutional rights.
- Unjustifiable: Qualified immunity is based on flimsy, historical rationale that has no legitimate basis in the law. There is no ambiguity in the text of federal civil rights law or the relevant legislative history that supports the qualified immunity doctrine.
- Unlawful: Qualified immunity eviscerates the nation’s most important civil rights law. Specifically, it undermines a part of the U.S. Code—lawyers refer to it simply as “Section 1983”—that was enacted after the Civil War to make sure state and local government officials were held accountable for violating people’s constitutional rights.
For these reasons, we call qualified immunity the “unlawful shield” for officers who violate your rights.
So for the month of April we’ve selected the Town of Colorado City and the City of Hildale which are located on the Arizona-Utah border. Last month, U.S. District Judge H. Russell Holland issued an order based on findings made by a jury that the Colorado City Marshals Office “engaged in a long-standing pattern of abuses that included false arrests, unreasonable seizures of property, discriminatory policing on the basis of religion, and violating the Establishment Clause of the First Amendment.”
According to the Department of Justice, police officials engaged in a decades-long pattern or practice of police misconduct and housing discrimination. Judge Holland concluded that officers turned a blind eye to criminal activity involving FLDS Church leaders or members, including supporting a fugitive and ignoring underage marriages, unauthorized distribution of prescription drugs, and food-stamp fraud.
The findings of this investigation reflect poorly not only on the towns, but also state attorneys general’s office, which should have take action much sooner so that federal intervention would not have been necessary.
Great interview with Federal Judge Alex Kozinski with Leslie Stahl of 60 Minutes on the Debra Milke case.
Here’s the gist of the story. Milke was interrogated by a police detective. The officer emerges from the room saying Milke confessed to murder. Milke denies it and maintains her innocence.
There is a trial and that’s the sum total of the evidence against her. The officer says she confessed to him. No recording. No signed confession. Other men that were connected to the killing said she was not involved.
On the basis of that one officer’s testimony, Milke not only lost her liberty, she almost lost her life–as it was a death penalty case.
When Milke’s lawyers dug into the crucial detective’s background, they found evidence of lying and misconduct in other cases. That’s when Judge Kozinski issued his ruling saying the government’s case was so weak that it could not stand. Milke was released from prison.
I am presently editing a collection of Judge Kozinski’s superb opinions and the Milke case is among them. It will be a great book.
Go here to see Judge Kozinski debate another federal judge on problems with the American criminal justice system.
Former Seattle Police Chief, Norm Stamper, stopped by last week to discuss his new book, To Protect and Serve: How to Fix America’s Police which had high praise for this web site exposing police misconduct.
Go here to listen to our podcast interview with him.
In many states, officers will quit a department before they are fired or while they are under investigation for misconduct and take a job elsewhere, effectively wiping their own slate clean and starting over. In certain cases, this can endanger a new community because a bad officer simply moved jurisdictions. One tragic example: the officer who shot and killed Tamir Rice in Cleveland, Ohio resigned from another department that was about to terminate him for his ineptitude with firearms.
USA Today’s Jonathan Anderson has a report today about the Wisconsin Department of Justice’s laudable efforts to reduce the likelihood of hiring problem officers.
The Wisconsin Department of Justice earlier this year began requiring law enforcement agencies to report when officers resign amid an internal investigation, quit in lieu of termination or are fired for cause.
The Justice Department will warn agencies about the officers should they seek employment elsewhere, according to Christopher Domagalski, chairman of the state Law Enforcement Standards Board, which oversees training and certification of police officers in the state.
“What we’re trying to do is eliminate the opportunity for somebody to slip through the cracks,” said Domagalski, who also is chief of the Sheboygan Police Department.
The change is aimed at identifying officers who switch jobs or hop around to different agencies after committing or being accused of wrongdoing.
As a professor notes later in the piece, this is a “good start” but not sufficient to completely eliminate the practice because, like many states, Wisconsin cannot decertify an officer unless the officer has been convicted of a felony or certain misdemeanors like domestic violence.
Nevertheless, it is heartening to see state officials taking police misconduct seriously.
You can read the whole report here.
Yesterday, it was reported that Attorney General Jeff Sessions is reviewing previous and pending consent decrees between the Department of Justice and local police departments around the country. My view is that both the Left and Right misdiagnose the problem. The Right does not really appreciate the scope of the police misconduct problem, but they’re right that it is primarily the responsibility of local officials to address the problems that do exist. The Left knows scope of the problem, but too often seeks federal intervention which does not have a great track record and has the enabling effect of letting local officials escape accountability for their fecklessness.
Note this headline from today’s Business Insider: “Police departments vow to move forward on reform despite Sessions’ move to roll it back.” You mean departments are going to clean up their act if the Trump administration takes no action? Perfect!
I elaborate more on this policy matter here.
So for February, we’ve selected Pima County, Arizona for the conduct of (the now former) Sheriff Christopher Radtke and the very peculiar leniency shown to him by the U.S. Department of Justice.
Federal prosecutors charged Radtke with several felonies for money laundering and theft. According to the newspaper accounts, Radtke admitted that for years he made it appear as if his office was donating seized cash and assets from criminal suspects to a sheriff’s auxiliary fund when that wasn’t the case at all.
Ordinary citizens go to prison for embezzlement, but not Radtke. No prison time and a very generous pension.
Here’s an excerpt from one report:
The plea bargain dismisses all felonies, with Radtke admitting to three misdemeanor theft counts. He agreed to not seek employment as a law-enforcement officer or with Pima County government. In return, prosecutors will request one year of probation without incarceration and will not prosecute Radtke for other offenses.
The deal allows Radtke to receive an $82,800 annual pension from the state Public Safety Personnel Retirement System and a one-time $505,000 payment from the system’s Deferred Retirement Option Plan, according to the retirement system’s records. Within six years, Radtke will receive more than $1 million in state retirement benefits.
Had Radtke been convicted of any of the felony charges against him, he would have been required by law to forfeit his state pension because the crime was committed in the course of his role as a public official for a government employer.
The plea was accepted by Magistrate Judge Eric Markovich. Sentencing is scheduled for April 7 in U.S. District Court in Tucson.
So for January we have selected the case of Philippe Holland, who was an innocent man shot by Philadelphia police.
According to news reports, here is what happened: Holland was a college student who worked part-time delivering take-out food. Two years ago, he was delivering a cheeseburger to a house when two officers in plain clothes responded to the area because of a report about gunshots. Holland says he thought he was about to get robbed because the officers approached him without identifying themselves. Frightened, Holland jumped in his car and tried to drive away quickly. The police officers opened fire and Holland now has a permanent seizure disorder and has bullet fragments in his brain.
Last month, the city agreed to pay $4.4 million to settle a lawsuit brought by Holland, reportedly the largest settlement for a police shooting in the city’s history.
The officers involved in the shooting–Kevin Hanvey and Mitchell Farrell– claim that they feared for their lives and thus had to shoot. They were not prosecuted. Even after the passage of two years the department says their discipline is yet “to be determined.” Hmm.
For December we’ve selected two former police officers from East Point, Georgia, who were found guilty of criminal charges last month in relation to the killing of Gregory Towns.
Here’s the background: Two police officers, Marcus Eberhart and Howard Weems, were responding to a domestic disturbance call. When they arrived on the scene, Gregory Towns tried to flee on foot. The police caught him and placed him in handcuffs. When the officers ordered Towns to stand up and walk to the police car, he said he was exhausted and too tired to walk. Frustrated, the police responded by tasing Towns so that he would comply with their commands. Towns was tased several times and he died.
At their criminal trial, the officers told the jury, via their legal counsel, that Towns died from an illness unrelated to the tasing, but if they did not believe that, the jury should understand that the tasing was the only way to get Towns to the police car.