Headlines, Not Solutions

There's certainly a lot to digest - is OC the functional, or moral, equivalent of tear gas; is Antifa a terrorist organization or, as Dan Bongino claims, a bunch of guys living in Mommy's basement eating Hot Pockets; when you mention retired Navy SEAL Jocko Willink do you hear people ooh and ah...but they've never actually read his book Extreme Ownership and know that the message is to own challenges and defeats, as well as triumphs?

The death of George Floyd at the hands of a Minneapolis police officer has raised - in some ways re-raised - an unavoidable conclusion. The best of the finest are always owning introspection and improvement, when they aren't ducking bottles and bricks, or trying to decide which of the protesters has a gun. There are always reforms to embrace, always challenges to be met and overcome. Solutions often start with "What am I doing that contributes to the problem, and how can I change that?" But then...Congress.

A friend - an exceptional and honorable police officer - alerted me to a bill that is being considered in the US Senate, abolishing something called "Qualified Immunity." Before I go on:

Law Porn Alert.

There, I said it. Let's get to the business at hand.

How, you might ask, can I possibly cite Jocko (oohh...ahhh) and then even imply that cops should be immune from... Anything. Be accountable, take the punishment. Etc. Fair enough. Let's begin with what qualified immunity is - something even lawyers misunderstand.

First, it is not immunity from being prosecuted for criminal acts. Qualified immunity is a creature of Federal Civil law arising out of 42 US Code Section 1983 - a cop can be sued for depriving someone of a recognized right (among other things, a constitutional right) under color of law (using their authority as a cop). That seems like a straightforward concept, eh?

Being a police officer in 2020 is far more complex than it was even when I started which, come to think of it, was a while ago. A succession of Supreme Court decisions have created bright lines in some cases, made muddy waters capable of being plowed in others. I'm a lawyer, and there were times when I wasn't sure what the law required, or restricted, especially at three in the morning when the shit is most definitely getting real.

The law makes provisions for that. In case after case, officers have been granted immunity from suit because they were - stay with me - being sued for something no one knew was a violation of the Constitution.

This is what Dr. Atul Gawande (The Checklist Manifesto) calls a "Pause Point." I know you are thinking: We've owned this thing since 1789. How in the hell can something about the Constitution be UNKNOWN? 

I know, right? Let me introduce you to Arizona v. Gant (2008), which isn't a qualified immunity case, but you'll see why it is important.

Prior to Gant the law about searching cars had been fairly settled. Some of it was a little complicated, but it had been the same complicated for decades. For our purposes - If an officer stopped a car and arrested "a recent occupant" for anything, they could search the whole car. Yeah, the whole car. Like it or not, that was what the Supremes had held in 1981, and we were all pretty sure we knew what was constitutional.

Then, 5-4, the court changed everything. Gant was a dude charged in Tucson after dope was found in his car. He'd been arrested for - wait for it - driving with a suspended license. Justice Stevens, writing for the majority (which included Scalia and Thomas...crazy, huh?) said that the search was unreasonable and a violation of Gant's constitutional rights. In doing so they severely restricted an officer's searching authority, requiring a sort of particularized probable cause (don't worry about it. Just go with me on this). They didn't pull this out of their...caboose. The case is actually pretty interesting. But...

Go back to Section 1983 - the evidence was suppressed because Gant's constitutional rights were violated. Can't he sue?

Sure, but he can't win because of - Qualified Immunity! How could a reasonable officer (an objective standard) in 1999 know that Johnny Roberts and the Supremes would change their interpretation of the 4th Amendment in 2008? Being held accountable for a constitutional violation in 2008 for something the Court said was okay when you did it in 1999... That would suck.

Court clarifications about the law happen all of the time. In 2008, two officers of the San Francisco Police Department went to a disturbance involving a person for whom the Americans with Disabilities Act protections applied. That person had a knife and tried to stab the officers - yelling the whole time she was going to kill them. Both officers, being intelligent and mature women who weren't especially keen on dying, shot the woman. Miraculously, the Sheehan involved in San Francisco v. Sheehan survived. Of course, she sued, under the novel idea that the officers did not accommodate her disability under the ADA while they were violating her 4th Amendment rights.

Well, how the hell were the officers supposed to know the answer to that? Qualified immunity is denied only if the rights being violated are "clearly established" at the time of the incident. No one had ever raised this issue before. The Court found in 2015 - unanimously (sort of) - that the officers deserved qualified immunity.

Whew! Seriously, how would you like to be my poor wife, who has to listen to this kind of stuff? No wonder she rides her horse three times a week - she needs the peace.

So why would Senators want to hold police officers accountable for things no one knew were violations of the Constitution?

They are jerks. Any questions?