"QUALIIFIED IMMUNITY" IT'S TIME TO GO....

I'm sure that by now most of America has now been exposed to the phrase "qualified immunity" and that many will be aware that the House of Representatives, with a Democratic majority, has passed a bill as part of a criminal justice reform package that will do away with the concept of "qualified immunity" as a defense by police officer to a lawsuit brought pursuant to a 150 year old Federal Civil Rights statute, Title 42 of the United States Code, Section 1983 (42 U.S.C. §1983) for violation of civil rights caused by a person acting under color of State law.

The Republicans, led by their cover senator, Tim Scott (the only black Republican in either the House or the Senate, now that Texas Congressman Will Hurd is retiring), bitterly oppose the House bill to end qualified immunity, Scott calling it a "poison pill" meant to sabatoge the entire legislation.

What most people- other than lawyers who, like me, actually practice law in this area- may NOT know is what qualified immunity is and how it came to be.

Something else they don't know: it's not the officers who actually pay the money when they get sued for violating someone's civil rights. It's their employer, the agency that gave them a badge and a gun, and sometimes a police dog, that pays for their lawyers and pays every dime of a settlement or a judgment. So if you are supporting "qualified immunity," you aren't supporting individual police officers. You are just denying persons injured by those officers any opportunity to seek a remedy for their injuries.

The phrase "qualified immunity" refers to the immunity granted to people like police officers who are on the front lines of the criminal justice system, and it means that in certain cases they won't be held civilly liable for violating a person's civil rights and causing him or her injury or even death. Here is one example from a case out of Florida: Trammell v. Thomason, No. 08-13801 (11th Cir. 6/18/2009) (11th Cir. 2009). Following is from the decision:

"A. The Undisputed Facts

On the evening of July 11, 2003, Robert Trammell ("Trammell"), a fifty-seven year old Caucasian male, was visiting a friend, Henry Cooper ("Cooper"), at Cooper's townhouse in Duval County, Florida. At around 10 p.m., Trammell stepped outside into Cooper's backyard to make a telephone call. The small backyard was surrounded by a six-foot wooden security fence and was very dark. While he was looking up a number on his phone, Trammell was suddenly knocked to the ground and bitten on his throat by a police dog. As he struggled to remove the dog, the dog repositioned itself and bit him multiple times on the throat. He was rushed to the hospital in an ambulance. He required an eighteen day stay, four operations, and incurred $147,514.82 in medical expenses for his severe injuries.

On the same evening, the Atlantic Beach Police Department received a call at approximately 9:17 p.m. from a woman reporting that her sister's ex-boyfriend, Robert Dillard ("Dillard"), was attempting to "kick-in" the sliding glass door in her home. She described Dillard as a twenty-three year old African-American male. Officers Douglas Paul Howell, Jr., and Shannon R. Hartley from the Atlantic Beach Police Department were dispatched to the house. When they arrived at the scene, they learned that Dillard had fled on foot and called for assistance in tracking him.

Because the Atlantic Beach Police Department did not own any helicopters or have a K-9 unit of its own, the Jacksonville Sheriff's Office deployed a helicopter and one of K-9 units, consisting of Officer Dorough, a K-9 handler, and his police dog, a Belgian Malinois called Yacco.

Officer Hartley remained near the scene of the attempted break-in while Officer Howell, Officer Dorough and Yacco began to search for Dillard. They were joined by Officer Theron Golleher. Officer Dorough was informed that Dillard was a twenty-three year old African American male, that he had two outstanding misdemeanor warrants, and that he was suspected of committing a residential burglary.

When Officer Dorough commenced the search, he placed Yacco on a leash. He held the leash in his right hand and his flashlight in his left hand. Officers Howell and Golleher followed behind as he and Yacco began their ground search for Dillard at his last known location. Yacco indicated that he "found" something by becoming very still when he reached the outside back wall of the wooden fence enclosing Cooper's residence.

Cooper's yard was dark, and Officer Dorough could not see through the six-foot security fence. For tactical reasons, he chose to remove part of the wooden fence and look through it, rather than look over it. He quickly shined his light through the opening and saw no one. He found a spot on the fence that felt like a gate and pulled out a few planks so he and Yacco could enter.

B. The Officers' Version of the Remainder of the Event

According to Dorough, he entered Cooper's yard with Yacco on his leash. Officers Golleher and Howell entered Cooper's yard shortly afterward. Dorough claims that, before he entered the backyard, he shouted two announcements or warnings of his presence and intention to enter with Yacco, with each warning followed by a five to fifteen second interval. Officers Golleher and Howell, who were following behind, testified that they heard Officer Dorough make at least one announcement.2 After hearing no response to his warnings, Dorough signaled to Yacco to enter Cooper's backyard.

Dorough felt Yacco's leash tighten as he followed the dog into the yard. Upon entering Cooper's backyard, Dorough saw that Yacco was engaged with someone who he assumed was the suspect. The individual was lying face down on the ground inside the fence to his right. Dorough yelled, "Let me see your hands!" The individual rolled onto his side and wrapped his arms around Yacco. Dorough saw then that Yacco had bitten the individual on the throat, and he also saw for the first time that the person was a Caucasian male. Dorough asserts that he immediately yelled to Trammell to let go of Yacco while giving Yacco the verbal command "stand still" to release his bite. Dorough claims that Yacco immediately responded to the release command. Officer Golleher indicated that, when he entered Cooper's backyard, he saw Dorough lifting the dog away from Trammell.

C. The Facts in the Light Most Favorable to Trammell

Prior to being bitten, Trammell did not hear or see any sign of police activity that would have alerted him to the presence of the dog. He could hear the neighbors on either side of the backyard making noise, but he did not hear any police warnings, nor did he hear a police helicopter. After being initially knocked to the ground, he was eventually able to sit up and pull the dog off of his throat by holding it by the scruff of its neck. At some point, police officers arrived on the scene with flashlights. They stood close enough to intervene, but they made no move to remove the dog until Cooper, alerted by the noise, came running out of the house and made them remove Yacco. Cooper asserts that, when he came out of the house, he saw Trammell sitting up and holding a large dog at bay by the scruff of its neck while the dog snapped at his face.

Trammell's shirt had been ripped off of his back and shredded to his waist. His hands were shaking with the effort of holding back the dog. Three officers stood alongside the fence, next to a waist-high board that had been laid across the entryway. They each had flashlights trailed on Trammell but made no move to remove the dog. Only after Cooper screamed that he was going to kill the dog did one of the officers say, "get the dog off of him." Another officer then reached down and grabbed the dog's leash off the ground near his foot and forcefully pulled it away from Trammell."

"The District Court granted the officer's and the City's motions for summary judgment.... [SAYING IN ITS OPINION]:

[T]here [was] nothing in the record indicating that Officer Dorough's conduct on July 11, 2003, was so beyond the hazy border between excessive and acceptable force that he should have known he was violating the Constitution. This was not a case in which Officer Dorough purposely "sicced" Yacco on a compliant and unsuspecting suspect or one where Officer Dorough let Yacco bite Plaintiff for an extended period of time. Therefore, based on the facts of the instant case, the Court finds that Officer Dorough is entitled to qualified immunity on Trammell's Section 1983 claim."


There is another phrase called "absolute immunity" which applies to judges and district attorneys and which protects them from ANY civil liability, even where they are deliberately committing criminal acts that violate a person's civil rights. For instance, if a District Attorney were to fabricate evidence and cause an innocent person to be convicted of murder and executed- he still gets absolute immunity from a civil lawsuit for any decision made in his official capacity. If a judge orders a teenage girl who is mentally challenged (the word in the decision was "retarded" but political correctness has changed since then) to be sterilized so that she can never have children, and the judge does it without providing the girl any kind of a hearing or even telling her what the medical procedure he ordered was going to do to her- he gets "absolute immunity" and when the girl later finds out what was done to her, she can't sue the judge. The case was called Stump v. Sparkman, it came out of Indiana in a decision of the United States Supreme court in 1978. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).

""Mrs. McFarlin stated under oath that her daughter was 15 years of age and was 'somewhat retarded,' although she attended public school and had been promoted each year with her class."

What most people do NOT know is that the phrases "absolute immunity" and "qualified immunity" do not appear anywhere in the statute, which reads as follows:

"§1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

As much as Republicans have screamed for decades about "activist judges" and "judges who legislate from the bench" and how they want to replace those judges and restore the rule of law as it was originally written without all of those "judge made laws" they are absolute hypocrites. These phrases- "absolute immunity" and "qualified immunity" were created in whole cloth by activist judges- many of whom were appointed by Republicans. And those decsions have been celebrated and defended by Republicans like Tim Scott and the rest of the 53 Republicans in the Senate because they like the results, not because they suddenly have developed an affinity for "judicial activism."

The decision in Stump v. Sparkman was written by a so called "conservative" justice, Byron White. Thurgood Marshall, one of the most celebrated justices in history- the first black justice, the lawyer who argued Brown v. Board of Education before the United States Supreme Court, dissented (disagreed) from the majority opinion.

The phrase "qualified immunity" came about earlier than that case. In Shceur v. Rhodes, 416 U.S. 232 (1974) a lawsuit brought by the estates of those killed by the Ohio National Guard on May 4, 1970, on the Kent State campus where they were peacefully protesting against the Vietnam War, the United States Supreme Court wrote, citing a 1967 case of Pierson v. Ray, 386 U.S. 547 (1967):

"The Court noted that the 'common law has never granted police officers an absolute and unqualified immunity,' id., at 555, 87 S.Ct., at 1218, but that 'the prevailing view in this country (is that) a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved,' ibid.; the Court went on to observe that a 'policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.' Ibid. The Court then held that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.' Id., at 557, 87 S.Ct., at 1219.

When a court evaluates police conduct relating to an arrest its guideline is 'good faith and probable cause.'...

Thus, the shield of "qualified immunity" of police officers, allegedly acting in good faith, was born- not by legislative action, but by judicial fiat. For good reasons, with good intentions, to be sure, but as we all should know: "no good deed goes unpunished" and "the road to hell is paved with good intentions." And the courts have ruled that if the police officer loses his motion to dismiss the lawsuit based on "qualified immunity" he can immediately appeal that decision

Because the phrase "qualified immunity" has grown to the point that it has swallowed up almost all of Civil Rights litigation against police officers, no matter how egregious the misconduct. The courts have ruled that the defense is one that has to be applied by a judge- before the lawsuit even gets underway, before any discovery may be had. So no jury gets to hear and weigh the evidence. No injured plaintiff can even take the sworn deposition of the officer at fault or witnesses to ask them what happened. And the courts have ruled that if the police officer loses- he can immediately appeal that decision

"Qualified immunity shields government officials in the performance of discretionary functions from standing trial for civil liability unless their actions violate clearly established rights of which a reasonable official would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff who brings a § 1983 action against such an official bears the burden of overcoming the qualified-immunity defense. Bunkley v. City of Detroit, 902 F.3d 552, 559 (6th Cir. 2018). At the summary-judgment stage, the plaintiff must show that (1) the defendant violated a constitutional right and (2) that right was clearly established. Ibid. In so doing, the plaintiff must, at a minimum, offer sufficient evidence to create a "genuine issue of fact"; that is, "evidence on which [a] jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)."
Richards v. Cnty. of Washtenaw (6th Cir. 2020)

"But the 'denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of [] § 1291 notwithstanding the absence of a final judgment.' Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)." Richards v. Cnty. of Washtenaw (6th Cir. 2020)"

In summary (and I congratulate any didactics who have read this far):

"qualified immunity" was created by judges, not by a legislature, and it defeats the express purpose of the statute- 42 U.S.C. §1983, created circa 1870 to allow private persons to sue whose rights were violated by State actors.

As interpreted by the federal courts over the last 50 years, qualified immunity is basically a 'get out of jail free" card, or, literally in some cases, "every dog gets one free bite," meaning that even though an officer violated a person's Constitutional rights- i.e., not to be severely bitten and injured by a police dog when that person has committed no crime and is peacefully talking on his cell phone in his back yard, the officer bears no responsibility for the havoc he caused.

Qualified immunity isn't an issue for a jury, it's decided by a judge before a trial, and even before a plaintiff is allowed to engage in civil discovery to get sworn testimony under oath at depositions. And if the officer loses before trial, he can immediately appeal, something that was also created by judges and which has no counterpart for plaintiffs who lose on a pretrial motion.
Getting rid of qualified immunity won't injure a single officer, as they don't have to pay for the lawyers who defend them or the money paid out to the people they injure anyway.

"DEFUND" THE POLICE? NO! REFORM, RE-ORGANIZE, FIX....

How to "fix" the police:

1. The first step in fixing any problem is.... find out what the problem is. Don't just assume that you know because you hold a position of authority. Seek out comments from everybody involved: both white and black and other race police officers, including long time officers and relative rookies, including officers from every unit- traffic, investigations, drug unit, gang unit, internal affairs, and officers of every rank. Give them anonymity. Also, seek input from prosecutors; defense attorneys; and judges. Seek input from persons in every part of the community, of every race, every socioeconomic status. Seek input from persons who have been crime victims of every kind of crime; burglary, robbery, theft, sexual assault, domestic violence, aggravated assault, families of murder victims, persons impacted by the sale or use of illegal drugs. Seek input from persons- including persons currently in jail- who have been charged with every kind of crime.

Then get some competent people- which I think should include volunteers who are actual experts, not highly paid outside consultants, to analyze the data.

2. However, even before the data comes in, I have suggestions from my viewpoint as an attorney who is from another State (Pennsylvania), educated elsewhere (Penn for undergrad, Duke Law), who has worked for an organization created to represent indigents in civil cases (Georgia Legal Services, Programs, Inc.), who has represented criminal defendants for over 42 years, represented persons who were victims of crimes, and, most pertinently, represented persons who were injured, either physically or otherwise (that includes false arrest) through actions of local law enforcement. I also raised a son here who went through the public schools and graduated from Westover, then received an appointment to the United States Naval Academy.

3. Here are some:

(1) Collect and maintain data on all interactions of law enforcement with the public, regardess of whether or not criminal charges are brought. If there's a traffic stop, the name, age, race, and gender of the driver, the make and model of the car (was it an expensive BMW being driven by a black man in a white neighborhood, stopped for no good reason? Or a legitimate traffic stop?). This includes interactions on the street. And make this data (other than the names of the individuals) freely available to the public on a website- don't make us have to make a separate Open Records Request.

(2) Collect and maintain data- the same as above- for every arrest made. In addition to the above, include the disposition of the charges. If an officer is making a high percentage of arrests where the warrant is dismissed or the indictment is nolle prosequi (dismissed), there needs to be an investigation as to the competence of that officer and whether he or she needs to remain on the force. And for every single case made by an officer, there should be a comment card given out to the prosecutor, defense attorney, and judge, to note any praise or concerns. And this data should be made public, again on the website, with the officers' names, rank, and any internal discipline imposed or commendations awarded.

(3) Pay them more money. A lot more. You can take some jobs away from police, including disbanding the drug unit to save money, and having a traffic unit that handles tickets that does not include P.O.S.T. certified officers, and pay the officers involved with crime investigation and crime prevention a whole lot more. Whatever the pay is, it should be significantly higher than other local jurisdictions with fewer resources are paying.

(4) By the same token, since you are paying them more, require more. Require at the very least a bachelors degree for all rookie officers and an advanced degree (i.e. a masters in criminal justice) for all officers of supervisory rank.

(5) Since you are paying them more and requiring more, make all disciplinary actions public, regardless of outcome. Include the original written complaint. All such discipline will be adjudicated by a three person panel to include at least one lawyer with criminal defense experience, one member of the public, and one retired police officer with impeccable credentials and a reputation for impartiality (no "Blue Wall", in other words).

(6) Make sure that there are regular "audits" by a committee appointed by the City Commission to ensure that the above are being enforced.

(7) Get officers out of vehicles and on foot or on bicycles in their assigned neighborhoods. Make sure that they don't rotate neighborhoods too frequently- give them time to know and be known by the people in the neighborhood. Have them regularly participate in neighborhood activities- with pay- including promoting things like street festivals.

(8) End all qualified immunity for civil lawsuits. I'm not going to go into all of the details of this sometimes very complicated defense of a police officer sued for civil rights violations; suffice it to say that many if not most officers walk away unscathed even when they have very obviously (to the average person) harmed a civilian without justification. I have called it the police equivalent of "every dog gets one free bite" rule in ordinary tort law. A local municipality can't get rid of the doctrine- but the doctrine of "qualified immunity" is an affirmative defense to a lawsuit that has to be raised by the defense in order for a judge to throw out a lawsuit on that basis. So any municipality can simply say it will no longer raise that defense until the day comes when Congress actually makes that the law of the land. As a matter of practice, when I win or settle the lawsuit the individual officer never pays a dime anyway- not for the lawyer(s) defending the suit, not in the damages paid to the injured party. That's all paid by the agency for whom the officer works. We should formalize that as a matter of national law by Congress and allow what is called "respondeat superior" liability, meaning that the employer, in this case, the City, would be 100% liable for the wrongs committed by its employee.

(9) I know this last one is controversial and can't be accomplished locally: decriminalize all drug possession offenses and treat it as a public health problem. Provide addicts with their drug of choice free of charge- but they can only use it by going into "Door A" in a large building next to the hospital. "Door B" is drug treatment to get off drugs. Each has to be free. Devoting resources to this will save 10 times as much- 100 times as much- as we currently spend in the absurd "War on Drugs." And this will obviate the need for "no knock" warrants, 99% of which are used on drug raids. And it will end the practice of searching cars of black motorists after a traffic stop.

The above was all written off the top of my head at one sitting. It's likely I left something out, but anybody who has a suggestion, I'd like to hear it.

END NO-KNOCK WARRANTS? DON'T STOP THERE- END ALL DEATHS FROM ILLEGAL DRUGS

Breonna Taylor, shot in her bed and killed by Louisville, Kentucky drug unit officers executing a no-knock warrant on March 13, 2020.

My son occasionally sarcastically remarks that I "have all the answers" or I'm "always right" or "know everything." Shockingly, my son is no longer a teenager, and by now one might think that he would have come to the realization that in some matters (not all, not even most), I am always right. Here's just one: it's the current debate on "no knock warrants," that tool of every police drug unit that has ever asked for a search warrant to go into a house to look for drugs. The dirty little secret- and it's not a secret, as I've had numerous officers admit this under oath- is that the stated purpose of the "no knock warrant- to protect the lives of the officers executing it- is a blatant falsehood.

How do I know this? Simple. If the purpose of the search warrant was to find drugs, then it would stand to reason that officers with a search warrant should first survey the residence (I hate the word "surveil," even though Merriam Webster says it is a word) and only go in when they are sure it is empty so as to minimize the danger to the officers.

In fact, they do the opposite: they only go in when they are sure that the person or persons they are targeting are inside, because they want to be able to charge them with possession, which is much easier if they can catch a person in the same place as the drugs. So the purpose of the "no knock" warrant isn't for the protection of the officers. It's to maximize the shock and awe they intend to stun the occupants of the house and force them into rapid submission. Which is why they always go in shouting and with guns drawn and pointed at whomever is inside- in some of my cases, they had guns pointed at heads of three year old children moments after they entered.

There is actually no need to debate the need for no-knock warrants, as they are used (probably over 99% of the time) in drug cases. And there is a simple and effective way to save both civilian and officers' lives when it comes to ending "no knock warrants," and it has been tried and worked in other countries: end the absurd "war on drugs."

First off, you can't declare war on an object. You can't have a war on terror, and you can't have a war on drugs. You might as well have a war on spoons. Or paper airplanes. They're just objects.

Secondly, the "war on drugs" has created the very problem it was designed to defeat. If drugs were legalized and obtainable through professional medical outlets, and given to addicts at no cost (I have a very detailed plan on that I've put out publicly for decades that also includes free rehabilitation facilities) there would be no need for drug dealers, no stashes of drugs, and no need for no-knock warrants, except in the exceedingly rare case where one is obtained when no drugs are alleged to be involved.


https://buildabettermousetrap.blogspot.com/2007/07/want-to-end-drug-related-crimes-then.html

Also, another side benefit: no more cartels. No more cartel killings. No more turf wars and killings with drug gangs. No fentanyl poisoning deaths (I refuse to call someone being poisoned an "overdose" unlesss they were intentionally taking fentanyl). No more AIDS or hepatitis from dirty needles. No more burglaries, thefts, armed robberies, or killings to get the money to buy illegal drugs. In short, it won't be just the two or three lives annually you would save from ending no knock warrants. It would be tens of thousands. And property loss and crime would be vastly reduced.

So, my idea may sound difficult for those Americans who are so used to the decades long drug "wars," but it works in Portugal. Simple logic and common sense tell you that it will work anywhere, even in the fearful United States, which has become something other than the "home of the brave," except for those in the streets protesting racism. Those people are brave. The fearful people demanding that drug users be locked up- not so brave.



https://time.com/longform/portugal-drug-use-decriminalization/