11
   

Ending Qualified Immunity for Cops

 
 
Reply Tue 16 Oct, 2018 09:48 pm
Ending Qualified Immunity for Cops Is a Matter of Life and Death
By Clark Neily

Last week, Bartlesville, Oklahoma, police released video from a nighttime SWAT raid on the home of a man suspected of selling marijuana—yes, marijuana—during which officers fatally shot his mother, 72-year-old Geraldine Townsend, after she fired a BB gun at the officers. As he is being cuffed and dragged from the house, Mike Townsend can be heard pleading with the officers to let him see his dying mother, but they refuse.

In December, Wichita, Kansas, police received what turned out to be a prank call regarding a non-existent hostage situation at the home of Andrew Finch. When the 28-year-old father of two went outside to investigate the flashing emergency lights, SWAT officers yelled at him to “Show your hands” and “Walk this way.” Seconds later, one of the officers shot and killed him. Andrew Finch was unarmed.

That same month, a six-year-old San Antonio boy was killed by deputies who were shooting at a suspected car thief, also unarmed, on the front porch of the boy’s mobile home. Two weeks before that, former Mesa County, Arizona, officer Philip Brailsford was acquitted of murder for shooting an unarmed man, Daniel Shaver, as he begged for his life in the hallway of a motel. And back in July, Justine Damond was shot and killed by a Minneapolis police officer after she called 911 to report a possible sexual assault in the alley behind her house. Damond too was unarmed.

Lack of systematic record-keeping makes it difficult to quantify the scope of the problem with precision, but according to The Washington Post, of the roughly 1000 people shot and killed by police last year, at least seven percent were unarmed. A study by Vice News of all shootings by police, including non-fatal ones, suggests the numbers are even worse: 20 percent of people shot by police were unarmed.

No one denies that police have a difficult, dangerous, and sometimes scary job, nor should we forget the heroism of officers like those who threw themselves between citizens and mass shooter Micah Johnson during a Black Lives Matter rally in Dallas in July 2016. But the time has come for a national conversation about the risks we expect officers to take in order to avoid shooting innocent people like Andrew Finch, Daniel Shaver, and Justine Damond—and also to ensure that they avoid creating unnecessarily dangerous situations by staging gratuitous nighttime SWAT raids to serve low-level drug warrants.

More specifically, it is time to reconsider a legal rule called “qualified immunity” that holds police to a much lower standard of care than ordinary citizens.

We expect homeowners not to leave firearms where children can get at them, and we expect permit holders to exercise great care in deciding when to carry a gun and when to use it. One of the ways we send that message is through tort law, which enables people to sue for injuries caused by the negligence or intentional misconduct of others. Importantly, tort law creates positive incentives by holding professionals to a higher standard than others when acting in their field of expertise. Thus, the standard of care for doctors in medical malpractice cases is not that of a layperson, but of a reasonably prudent professional with the same training and experience.

Incredibly, the opposite rule applies to police officers, who, notwithstanding their greater training and experience, are held to a much lower standard than ordinary citizens in the use of force. That’s because the Supreme Court has effectively rewritten a federal law that makes police officers liable for violating “any right” so that they are instead only liable for violating rights that are “clearly established” in light of existing case law. While that may seem like a relatively minor tweak, it is anything but—indeed, the Supreme Court has emphasized that the practical effect of this so-called qualified immunity doctrine is to protect “all but the plainly incompetent or those who knowingly violate the law.” That is a breathtakingly low standard, and patients would flee from a hospital that expected no more from its doctors.

Going back to the shooting of Andrew Finch, we can see how better incentives might have prevented that tragedy. First, “swatting” is a well-known practice whereby someone calls in a fake emergency in the hopes of unleashing heavily armed police on an unsuspecting victim. Properly trained officers would take this into account in responding to calls like the one that led to Mr. Finch’s death. Second, officers would recognize that the many advantages they possess over laypersons, in this case more training, powerful weapons, and strength in numbers, translates into a duty of greater care, not less. An ordinary citizen who shot Mr. Finch under similar circumstances would not only be facing a ruinous civil suit but would almost certainly be charged with criminally negligent homicide. Finally, proper financial incentives would better motivate police departments to weed out officers who are not suited to their duties. For example, Philip Brailsford, the Arizona officer who shot and killed Daniel Shaver, had the words “You’re f*cked” etched onto his police-issued rifle. That should have been a red flag that he lacked the temperament for a job requiring good judgment and self-restraint under pressure.

There is no magic solution to the problem of police shooting unarmed citizens or creating needlessly hazardous situations by invading people’s homes in the middle of the night. But a good start would be for the Supreme Court to reverse its ill-advised foray into policymaking by abandoning qualified immunity and ensuring that police officers are held to the same standard of care as other professionals. In doing so, the court would embrace a key precept of the medical profession: First, do no harm.
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Type: Discussion • Score: 11 • Views: 2,085 • Replies: 69

 
edgarblythe
 
  3  
Reply Tue 16 Oct, 2018 10:01 pm
In the 1950s or maybe the late 1940's Phillip Wylie wrote that intelligence studies of police are never published, because they are identical to studies of criminals. Nothing has changed, it seems. Not to say all cops are bad, because I know it's not so. But police are becoming militarized on the one hand, and many apply force without justification. They can kill for no good reason and walk away, mostly unpunished. And it is no secret that many target black people because of blind hatred for them. I haven't read your post. Perhaps I will tomorrow.
Setanta
 
  1  
Reply Tue 16 Oct, 2018 10:09 pm
Good for you, McG--I'm glad to see you post something like this. I was also mildly amazed that it had been published by the Cato Institute. Certainly the situation is out of hand, and something needs to be done.
0 Replies
 
vikorr
 
  2  
Reply Tue 16 Oct, 2018 10:47 pm
@McGentrix,
Conversations about how to increase the safety of people should always be on the table. That said, the conversation should be reasonable, and evidenced based, rather than emotionally manipulated stories.

The conversation if held, should be about all contributing circumstances - on the police side, on the victim/offenders side (depending on situation), the culture, the laws, the individual actions of anyone else related to the situation, and any other relevant contributing factors.

Quote:
Last week, Bartlesville, Oklahoma, police released video from a nighttime SWAT raid on the home of a man suspected of selling marijuana—yes, marijuana—during which officers fatally shot his mother, 72-year-old Geraldine Townsend, after she fired a BB gun at the officers. As he is being cuffed and dragged from the house, Mike Townsend can be heard pleading with the officers to let him see his dying mother, but they refuse.

- his mother deserved to get shot if she fires any rifle at police. Do you honestly believe that you can tell from a distance, possibly in the dark or poor lighting, the difference between some bb guns and a real one? Would you really take the risk that you have it wrong?
- perhaps it was just a drug raid. What sort of history did he have? Was he violent, or known for armed robberies? Was he known to possess guns?

Quote:
In December, Wichita, Kansas, police received what turned out to be a prank call regarding a non-existent hostage situation at the home of Andrew Finch. When the 28-year-old father of two went outside to investigate the flashing emergency lights, SWAT officers yelled at him to “Show your hands” and “Walk this way.” Seconds later, one of the officers shot and killed him. Andrew Finch was unarmed.
This is one of the incredibly sad outcomes of poor training, a gun culture, numerous police deaths from gunfire, a sick fascination with SWATing, and a focus on individual rights.

If you wonder why I mention the last - people are so indoctrinated that 'police can't do this, can't do that', that when such a situation arises, people go outside with the attitude 'they can't do this to me. They can't tell me what to do. I haven't done anything wrong"...the other end (police) don't know this at all, and have that same fear / poor training / known deaths of colleagues etc as previously mentioned.

I'd make points about the other things in the article, but this reply would become too long.

Don't get me wrong. I am all for holding police accountable, and quite frankly, any that can be proved shot a person just because they felt like it, because they didn't want to try a safer way (for everyone), should face murder / manslaughter charges.

Certainly I read things that leads me to believe that a percentage of your police officers actually do do such things. And if so, they should be jailed.

Momentary incompetence (also known as poor decision making in said moment) is harder to deal with. All people are fallible (if even we're lead to believe they shouldn't be), and I mean all people...every single person. I imagine that police face a very complex environment, dealing with the most unpredictable thing on this earth - people, at times when they are at their worst, or their most emotionally distraught, or at their most erratic, or just plain mentally ill. Charging police for one mistake in a long career, for being human (because we are all fallible) - the end result would likely be to drive all normally competent people away from wanting to be police. If you could get jailed for one mistake, from a decision made in an instant, in a life/death/serious injury moment - then having to be justified over hours in a court....why would you want risk that? Why would any sane person want to become a police officer?

I'm a very big believer in personal responsibility, contributing circumstances, and consequences...rather than blame. But then, I've never seen blame achieve anything worthwhile.

Have a conversation (in Australia, we'd call it a Royal Commission - not sure what it would be called in the US) - while ensuring it considers all the contributing circumstances. That way, true improvements can be reached (if of course, the government has the will to implement them)
0 Replies
 
jespah
 
  3  
Reply Wed 17 Oct, 2018 06:30 am
Interesting article. I imagine it would help to have high standards training required for all. Not just marksmanship, but also psychology, communications, training in how to negotiate, etc. Provide more tools for the cops on the line and I don't mean tanks.
McGentrix
 
  2  
Reply Wed 17 Oct, 2018 06:58 am
The militarism of the police force should concern everyone. We no longer live in a country where the police work for and protect the people and have become a force to feed the for=profit prison system in America. There is a growing movement of "1st amendment auditors" roaming the country filming police in their duties and they are regularly stopped and have thier rights violated all in the meaningless search for more prisoners.

I think that the people I feel most bad for are blacks in America and the way they are treated by police. I have no idea how I would handle a random stop and frisk based solely on my skin color.

Its these reason's I feel that qualified immunity needs to change. Not go away entirely, but needs to be put in its proper place. Too many times bad police are covered up by "policy" that says the officer was within the bounds of procedure.



Unbelievable.
0 Replies
 
oralloy
 
  -3  
Reply Wed 17 Oct, 2018 04:03 pm
Some of these cases I am unfamiliar with. However, police can hardly be blamed for defending themselves when someone shoots at them, or appears to go for a weapon, or is trying to kill them with their bare hands.

SWAT raids are indeed incredibly dangerous. There is a grave risk that innocent people will be killed, and even a risk that a police officer will be killed by someone who thinks he is being attacked by criminals. SWAT raids are used way too much in America, and we should dramatically curtail them and only use them when there is a serious danger to someone's life.

I can't see how the police can be faulted in the case of Andrew Finch. As I recall, the guy who made the fake 911 call is facing life in federal prison. And the guy who asked him to do it is facing 5 years in federal prison as an accessory (up to 60 years in federal prison if also convicted of conspiracy, wire fraud, and obstruction charges). It looks to me like the justice system is putting the blame in the right place.
Walter Hinteler
 
  3  
Reply Wed 17 Oct, 2018 11:46 pm
@jespah,
In my state (in a couple of other Germans [police is state's affair here]), police students have "low force controls and operations" as one module during the for the first couple of their time at college. (As well as psychology, sociology etc)
maporsche
 
  3  
Reply Thu 18 Oct, 2018 06:23 am
@oralloy,
I think almost any time an unarmed man is shot with a lethal weapon the fault lies with the office who pulled the trigger. Especially if they are not attacking the officer or another bystander. Running from the police should not be an automatic excuse to shoot either.

I also think that if someone shoots an officer entering their home unannounced (swatting) then they should have immunity from being charged with shooting the police. How were they supposed to know it was the police and not a home invasion.


I’d like to see our police officers AT LEAST have as strict of rules of engagement on our city streets as our military has in actual war zones. I’d like their rules to be more strict, but let’s start here.
McGentrix
 
  1  
Reply Thu 18 Oct, 2018 06:25 am
@Walter Hinteler,
I like that the German Landespolizei have really brightly painted car so people know they are there. Never trying to hide or be sneaky with the people.
McGentrix
 
  4  
Reply Thu 18 Oct, 2018 06:27 am
@maporsche,
maporsche wrote:

I think almost any time an unarmed man is shot with a lethal weapon the fault lies with the office who pulled the trigger. Especially if they are not attacking the officer or another bystander. Running from the police should not be an automatic excuse to shoot either.

I also think that if someone shoots an officer entering their home unannounced (swatting) then they should have immunity from being charged with shooting the police. How were they supposed to know it was the police and not a home invasion.


I’d like to see our police officers AT LEAST have as strict of rules of engagement on our city streets as our military has in actual war zones. I’d like their rules to be more strict, but let’s start here.


Huh. We agree on something after all.
0 Replies
 
Walter Hinteler
 
  2  
Reply Thu 18 Oct, 2018 06:39 am
@McGentrix,
The current models (BMW 3) ...

https://i.imgur.com/sLHGrZq.jpg

... are thought to be too small: we'll get larger versions.

But the police has a wide range of "normal" cars as unmarked patrol cars for various purposes. (We've got in our town about five. On motorways, nearly half of the patrol cars are civil/unmarked)

https://i.imgur.com/9gwxmHm.jpg
0 Replies
 
maporsche
 
  2  
Reply Thu 18 Oct, 2018 08:44 am
I’ve got zero problem with police patrolling in unmarked cars, especially on highways for speeding and unsafe behavior.

I think on city streets a easily identifiable vehicle helps deter crime, but highways where speeding and accidnets are frequent and often deadly, they should patrol incognito and pull over probably 10x as many people as they currently do.

I also love what some countries do where speeding tickets are based on your income; so if you make $50k/year your ticket may be $250 but if you make $150k/year your ticket could be $750
Walter Hinteler
 
  1  
Reply Thu 18 Oct, 2018 08:50 am
@maporsche,
maporsche wrote:
I also love what some countries do where speeding tickets are based on your income; so if you make $50k/year your ticket may be $250 but if you make $150k/year your ticket could be $750
That's done here when it's done be the court. But usually speeding is punished by a fixed sum without the involvement of a court.
0 Replies
 
ehBeth
 
  3  
Reply Thu 18 Oct, 2018 09:24 am
@maporsche,
maporsche wrote:
I think on city streets a easily identifiable vehicle helps deter crime


it also helps people figure out where the police are when they need help

Toronto briefly made a move to neutral toned vehicles that no one could i.d. as the good guys. After a huge outcry when the first vehicles went on the road, the balance of the order was cancelled and the police apologized. There are still a few unmarked/stealth vehicles out there but people really want to be able to see the helpers out there.
0 Replies
 
oralloy
 
  -3  
Reply Tue 23 Oct, 2018 07:33 pm
@maporsche,
maporsche wrote:
I think almost any time an unarmed man is shot with a lethal weapon the fault lies with the office who pulled the trigger. Especially if they are not attacking the officer or another bystander.
How about when an unarmed person is in the process of beating the police officer (or someone else) to death with their bare hands?

What about when they ignore the commands of officers and reach for an unknown object?

maporsche wrote:
I also think that if someone shoots an officer entering their home unannounced (swatting) then they should have immunity from being charged with shooting the police. How were they supposed to know it was the police and not a home invasion.
We can curtail innocent deaths on both sides simply by limiting SWAT raids to only those circumstances when someone's life is in immediate danger.
vikorr
 
  1  
Reply Tue 23 Oct, 2018 07:57 pm
@oralloy,
Quote:
We can curtail innocent deaths on both sides simply by limiting SWAT raids to only those circumstances when someone's life is in immediate danger.
Would SWAT raids not improve the chances of no-one getting killed at high risk raids? Eg. the home of an armed robber, or outlaw motorcycle gangs headquarters, or suspected terrorists, or an illegal arms cache, or Multi-million dollar drug busts (where there are obviously likely to be armed men guarding the drugs) etc?

In all of those, there's not an element of anyone's life being in imminent danger.

Besides, aren't SWAT'ing raids brought about because someone claims "There's a man at X. He's got a gun. He's doing/shouting/being A, B, and C" ?
oralloy
 
  -2  
Reply Tue 23 Oct, 2018 09:55 pm
@vikorr,
By SWAT raids, I mean high risk raids.

I am suggesting that we curtail high risk raids. They are used way too often in America.
engineer
 
  4  
Reply Wed 24 Oct, 2018 06:46 am
@vikorr,
A lot of times SWAT type raids are done for no apparent reason. In a local case, two college students mugged another student (no weapons) and stole two PS3's. When the task force went to arrest the student, they ended up shooting the unarmed student through the door and killing him. When police show up in overwhelming force, they are setting up conditions where the slightest misunderstanding results in people getting killed.
McGentrix
 
  2  
Reply Wed 24 Oct, 2018 09:57 am
@oralloy,
oralloy wrote:

I am suggesting that we curtail high risk raids. They are used way too often in America.


This is very true. Using a SWAT team toserve a warrant is ridiculous.
0 Replies
 
 

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