[HN Gopher] No Qualified Immunity for Cops Who Made Stuff Up to ...
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No Qualified Immunity for Cops Who Made Stuff Up to Justify Phone
Seizure
Author : pmiller2
Score : 144 points
Date : 2021-02-14 17:28 UTC (5 hours ago)
(HTM) web link (www.techdirt.com)
(TXT) w3m dump (www.techdirt.com)
| AdrianB1 wrote:
| I saw an article of a real lawyer that explained the decision,
| but he also included a priceless information: qualified immunity
| does not come from a law or statute, it is a made-up term by the
| SCOTUS a few decades away. It is mind-boggling that such thing
| exists and it is also very hard to believe that legislators did
| not remove it into oblivion.
| mleonhard wrote:
| Please post a link to the article.
| classified wrote:
| The whole civil asset forfeiture shtick is making things up to
| rob people. How are phones different?
| trianglem wrote:
| The only union in America that needs busting is the cops union.
| Low skilled work that doesn't even rank in the top 20 most
| dangerous jobs. Bring on personal liability insurance and call it
| a day.
| seibelj wrote:
| How about any public sector union? They do services that have
| no competition, allowing them to extract taxpayer money with no
| substitute providers.
| mchusma wrote:
| I agree. I cannot think of a justification for public sector
| unions.
|
| The typical pro-union argument for companies is that they
| protect workers against abuses by the company.
|
| In the public sector, the union is supposed to protect
| workers from the citizens? I haven't ever heard of a good
| theoretical argument for them. Would be interested if someone
| knew of one.
| maxerickson wrote:
| Perhaps public entities should not enter into collective
| bargaining agreements with public sector unions, but
| freedom of association is guaranteed in the constitution,
| it's not going to be possible to ban unions in the US.
| salawat wrote:
| There is no bigger abuser of workers than we the citizens.
| We don't intend to, but we do generally expect
| extraordinary results for a pittance investment of
| resources with all sorts of strings attached.
|
| Public sector unions are fine.
| astura wrote:
| I guess (?) that they protect low level civil servants from
| the whims of politicians and political administrative
| changes.
| myWindoonn wrote:
| Sure. Let's start with the police, and then we'll go after
| whichever next union is killing people across the country.
|
| Edit: Your downvotes only make it more obvious that you don't
| really have a counterpoint to the police's homicidal
| tendencies nor their unions' participation in crafting legal
| protections for their actions.
| dimensi0nal wrote:
| > whichever next union is killing people across the country
|
| teachers' unions causing student suicides by refusing to
| let schools open like in the rest of the developed world?
| judge2020 wrote:
| The rest of the developed world doesn't have 100k covid
| cases a day.
| spijdar wrote:
| What's "the rest of the developed world"? France has 21k
| new covid cases in a day, and a population of 67 million
| versus a population of 328 million in the US, so the per
| capita rate is almost identical. Other west European
| countries at least are similar, usually slightly lower,
| but not dramatically lower e.g. by orders of magnitude.
| monocasa wrote:
| Yeah let's hate on teachers because.. checks notes...
| they don't want to die due to a disproportionate amount
| of them being in covid high risk groups.
| pjc50 wrote:
| Interestingly, in the UK the police are explicitly not allowed
| to unionize. The fire brigade are and have occasionally gone on
| strike.
|
| Instead they have three different professional organisations,
| because the UK is ridiculously class-stratified:
| https://en.wikipedia.org/wiki/Police_Federation_of_England_a...
|
| > Superintendents and Chief superintendents are represented by
| a separate staff association, the Police Superintendents'
| Association of England and Wales (PSA),[3] while the most
| senior officers are members of the Chief Police Officers Staff
| Association (CPOSA).
| trianglem wrote:
| You're being downvoted because of right wing teamism that
| dang and company refuse to address or are not equipped to
| deal with.
| TravHatesMe wrote:
| > Chances are Robbins will receive a settlement
|
| I think this is underscores the biggest issue. Mistakes are made
| by these power-hungry ignorant police officers, usually due to
| their fragile ego, and then they face little consequences.
| Someone sues and gets a nice settlement. Nothing changes.
| Taxpayers are taking the brunt instead of the police officer. The
| offending officer will likely get a slap on the wrist, or if it's
| a really bad mistake that went viral they might choose an early,
| comfortable retirement. In order for change to happen, police
| officers need to be held accountable for their actions. Not sure
| how to implement that but I think that would result in police
| officers being much more careful about their conduct.
| oh_sigh wrote:
| Taxpayers should take the brunt of the damage in the end. They
| hire the police after all.
| michaelmrose wrote:
| Why shouldn't they hire them under the terms that if they
| unlawfully cause harm they will bear the brunt of repaying
| the settlement?
| TedDoesntTalk wrote:
| They pay their salaries. They do not hire them. Big
| difference.
| throwawayboise wrote:
| They hire (i.e. elect) the people that hire them.
| AdrianB1 wrote:
| Not really. In many places there are huge influences from
| political parties and heavy stakeholders. For example, in
| California a well-known financial mogul got a few DAs
| appointed - it was an election but one could call it "buy
| a DA".
| frostwhale wrote:
| They hire (i.e. elect) the people that hire the people
| that decide who hires them.
| strogonoff wrote:
| Looking from the outside, seems like the police system
| used to work at some point in the past and now it
| doesn't. Maybe taxpayers taking the brunt of it in case
| of police misbehavior is a case of a system "failing
| loudly", a useful indicator that the police doesn't work
| well and people should elect differently in favor of
| revamping the police according to current realities.
| dragonwriter wrote:
| > They do not hire them. Big difference.
|
| They ultimately supervise and choose the people that hire
| the police, the people that set the policies for the
| police, and the people (both in and out of police
| departments) directly responsible for holding police
| accountable.
| dbt00 wrote:
| Inability to fire police officers, even for gross
| misconduct including unlawful homocide is baked in to
| many jurisdictions due to PBA contracts.
| oh_sigh wrote:
| Did the PBA unilaterally decree what the contracts would
| be or was there a counterparty?
| jeltz wrote:
| Sure, but until we start charging police with crimes nothing
| will change.
| [deleted]
| pstuart wrote:
| Police departments should be self-insured, backed by their
| pensions. They'll never change their behavior unless properly
| incentivized to do so.
| ip26 wrote:
| Maybe. If a single claim could wipe out the pension, there's
| a good chance the department would close ranks even harder
| than today. You could hope they would police themselves
| better, but once something _does_ happen, Johnny Idiot 's
| mistake has put the entire department's pension at risk. This
| sets up bad incentives.
| pstuart wrote:
| > You could hope they would police themselves better
|
| A fool's errand, we know that won't happen on the basis of
| "doing the right thing".
|
| It would have to be structured so that covering up only
| makes it worse, it is a perfect subject for applying game
| theory to steer the outcomes.
| giantg2 wrote:
| Yep, currently dealing with a situation like this. The
| captain of the troop closed my complaint against one of
| the troopers without any investigation or justification.
| They didn't even notify me.
| Spivak wrote:
| Yeah this seems really really bad and I'm surprised that
| people in tech are suggesting it since we all experience
| the "if you fuck up you won't be punished so long as you
| own to it" policy that makes it so that issues are actually
| felt with.
|
| I mean the poor guy who caused the AWS S3 outage doesn't
| need to be personally personally responsible for the
| millions people lost due to it nor does their teammates via
| their 401ks. These are structural issues and trying to find
| someone to scapegoat makes it so people ignore them.
| rriepe wrote:
| It's important that it's at the department level and not the
| individual level too. It turns the "looking the other way for
| other officers" dynamic on its head right away.
| spacemanmatt wrote:
| They already do this. Making them self-insure would just lead
| to wiping out departments that eventually lose in court. And
| they all eventually lose.
|
| I'm ok with that.
| s1artibartfast wrote:
| If that is the end game, why not just skip the middle part
| and disband the police.
|
| People can arm themselves and settle their own problems
| ipsocannibal wrote:
| How about we tie settlements and complaints to police
| compensation packages? Do any police departments in the US do
| this now? The idea would be the more of these situations you
| expose your department to through your own misconduct the more
| you are financially penalized. You lose pay, matching 401K
| contributions, access to a pension. This won't be a panacea but
| it could help tax payers recoup some of the costs incurred by
| bad cops.
| michaelmrose wrote:
| How about if we determine that the officer acted unlawfully
| we just take the entire settlement out of the cops pay
| including any pay he may get from the state or indeed any
| other employer under the same terms we take money owed to the
| IRS.
|
| Cost the state a million dollars because you abused or killed
| somebody congrats you will now be poor for the rest of your
| life.
|
| 1/3 of 1% of the US works in law enforcement its absurd for
| the other 99.66% of us to vote in bad terms for everyone
| unless 70% of us believe those bad terms apply to someone
| else like a minority.
| Spivak wrote:
| Okay so this is a genuinely terrible idea because then
| nobody would be a police officer. Malpractice insurance
| exists specifically because doctors _will_ make mistakes
| that harm their patients in hugely expensive ways either in
| the costs to fix the problem or suffering their patient now
| has to live with. Everyone makes mistakes at work and so
| this scheme just produces a workforce with a high luck
| stat.
|
| Look, I have no sympathy for police officers who
| intentionally do harm but this isn't the way to weed them
| out.
| dillondoyle wrote:
| If they acted unlawfully send them to jail...
|
| Maybe even pull some of their own possession BS grab some
| restitution on the way in.
| chongli wrote:
| _How about we tie settlements and complaints to police
| compensation packages?_
|
| I doubt we'd be able to achieve that without the willingness
| to disband the police. Police unions are extremely powerful
| and they would never accept this without an existential
| threat to all of their members' jobs.
|
| At that point, why not go all the way and disband the police,
| creating a new law enforcement agency to replace them, with
| an entirely different culture and mandate?
| csunbird wrote:
| Law of unintended consequences say that, that will lead into
| even more cops hiding things under the rug for their
| colleagues, since a mistake can end that persons future life.
| Shivetya wrote:
| Nothing will change as long as we have public employee unions.
| Nothing. They had such control over politicians at all levels
| people should honestly be frightened. Through that control they
| protect abuse by their members either individually or as a
| whole
|
| unlike private sector unions there is no accountability, the
| contracts are actually written to forbid any real means to hold
| members or the union as a whole accountable for actions.
|
| So unless they are reigned in nothing is ever going to change.
| More likely you will be told and you will buy into the idea
| that more money and more staffing is needed.
|
| and nothing will change except the public will be on the hook
| for even larger and more outlandish suits and worse pensions
| Pfhreak wrote:
| Public sector unions are fine. _Police unions_ are a problem.
| giantg2 wrote:
| I don't really think so. Even FDR was against public
| unions.
| alisonkisk wrote:
| People shy away from this, but public sector employees
| already have huge advantages:
|
| * The jobs are largely undesirable, so threatening to quit is
| viable
|
| * The jobs are public facing (for the major unions like
| police and teachers) so they can rally the public on their
| behalf
|
| * These professions have extreme leeway for "work to rule"
| (doing the minimum requiremed) that applies pressure on
| employer without violating employment agreements.
|
| * note: When most people debate unions, they mean collective
| bargaining obligations, not free association "minority"
| unions. A minority union can still speak up for its
| membership and provide financial support for victims of
| management.
| toast0 wrote:
| It's going to be hard to tie financial responsibility to
| individual officers in a way that doesn't ultimately come back
| to tax dollars anyway.
|
| Most likely if you hold officers financially responsible as a
| rule, they'll take out errors and omissions policies. Salaries
| may be raised to pay for premiums, but either way it's tax
| payer money. The insured pool would probably be police officers
| from a wider area, but still tax payer money. So if you ended
| up getting a claim paid by insurance, it's just coming from a
| wider pool of tax payers.
|
| If you only allowed people to be a police officer if they were
| wealthy enough to pay a judgement, that would be pretty gross.
| daniellarusso wrote:
| Doctors have malpractice insurance.
|
| Could there not be something similar for other professionals
| that can end a person's life while 'on the clock'?
| akvadrako wrote:
| Except malpractice insurance for doctors is a major
| failure. It greatly increases the cost of care without
| actually reducing the incidence of malpractice.
| dtgriscom wrote:
| Any citation for this?
| vmception wrote:
| You have to make the consequences of non-compliance greater
| than the coverup.
|
| Make a lien on the pension which forces the old guard to feel
| uncomfortable and request department changes.
|
| Make this occur for the slightest infractions of any
| individual officer.
|
| Make the municipality have to disclose very significant
| policing stats when they want to issue a bond, and then
| quarterly. They currently have a complete disclosure
| exemption from the SEC.
|
| Turn on these consequences every time a police report doesn't
| match the video. Or whenever one just lies whether there is
| video or not.
|
| Make the partners accomplices when they don't report, and
| that alone being a trigger for the wide range of sanctions
| against the entire municipality.
|
| There are a lot of ways to make them turn on themselves,
| while keeping their primarily stated concern of being able to
| make split second decisions and get home safely at the end of
| the day.
|
| This would be much better than requiring all this fanfare for
| a small subset of egregious transgressions.
| fgonzag wrote:
| If you force officers to carry malpractice insurance, the
| city only pays the base premium for a spotless record to the
| officers (collectively negotiated by the union most likely),
| anything extra is supposed to come out of their pockets. The
| insurance would probably disqualify gross negligence too, so
| police officers as a whole would have to be a lot more
| careful.
|
| It is far from an ideal solution but it should help start
| getting the ball rolling towards a more professional and
| transparent police force.
| maxerickson wrote:
| The base premium would be the cost of covering the typical
| available hire, not the cost of covering someone with
| several years of low cost behavior.
|
| Compare to credit reporting where everyone starts with a
| decent provisional score and then the cost of borrowing
| goes down if you demonstrate the correct risk/reward
| behavior.
| giantg2 wrote:
| This is basically my thoughts too.
|
| I think the only real catching point is that the courts
| don't care about rights nor are police willing to really
| investigate claims against another officer. I have some
| very recent/on-going experience with this. There was a
| trooper who knowingly held a false charge against us,
| leading to restrictions in our freedoms and small costs. I
| contacted a civil rights attorney who told me the courts
| don't care unless we sustained significant costs/damages.
| Recovering costs would be great, but we would mostly like
| to see protections put into place so this doesn't happen to
| others (and maybe get this bad trooper removed). I filed
| one successful complaint against him. Then he took further
| actions and I filed another complaint. That complaint was
| closed without any investigation or justification - they
| didn't even tell me they were closing it.
| iaw wrote:
| This is the most free-market approach to resolving police
| brutality that I've seen so far. With no ideal solutions
| sometimes the pragmatic ones are the best.
| tqi wrote:
| I think the problem with this proposal is the us vs them
| mentality of police departments. I would expect that cops
| will continue to close ranks around the bad cops, and use
| these insurance claims as a tool against those that don't.
| snomad wrote:
| Or, they just do a better job of covering up for each
| other, choose to enforce the law less frequently, arrive to
| reported crimes slower, etc...
| alsetmusic wrote:
| Police unions have so much power that they'd force cities
| to cover them completely.
| 2OEH8eoCRo0 wrote:
| I like it. Even if unions decide to start covering costs
| bad officers will get expensive quick. Free market will
| force out bad officers.
|
| We need to stop punting the cost of this to faceless
| entities like the state and allow the officers themselves
| to be sued and the free market will do the rest.
| roywiggins wrote:
| There's probably a pretty large constituency willing to
| give money to bad cops' crowdfunding campaigns. Free
| market works both ways- lots of people would be happy to
| subsidize this sort of behavior as long as they can be
| convinced the cops are being "canceled" by "antifa" or
| whatever.
| AnthonyMouse wrote:
| Nearly all of the "bad cops" stories in the media, like
| nearly all stories in the media whatsoever, are
| toxoplasma:
|
| https://slatestarcodex.com/2014/12/17/the-toxoplasma-of-
| rage...
|
| If there is no case to be made in defending a cop, nobody
| wants to make it. But then it isn't a story, because it's
| only a story if it's a controversy.
|
| That creates the impression that many people are
| defending all of these bad cops in the clear cases, when
| they're really only defending them in the controversial
| cases.
| pseudalopex wrote:
| That's basically tautological. Controversy just means
| people disagree. It doesn't say anything about which
| cases are controversial and why.
| mr_toad wrote:
| > If there is no case to be made in defending a cop,
| nobody wants to make it.
|
| Seems like the unions will defend an officer regardless
| of what they did.
| clusterfish wrote:
| Even if that's the case, better those people pay for the
| crimes, than everyone via taxes. And, civil suits are one
| thing but criminal liability should be a thing too. Can't
| just pay that off.
| giantg2 wrote:
| "... criminal liability should be a thing too."
|
| It's too bad the system is corrupt and they won't hold
| people within the system accountable.
| Judgmentality wrote:
| > It's going to be hard to tie financial responsibility to
| individual officers in a way that doesn't ultimately come
| back to tax dollars anyway.
|
| Why not just deduct all lawsuits and other costs from the
| collective pension fund for police departments? This seems
| like a trivial problem to solve (I mean assuming the goal
| were to solve it, and not increase police power while
| minimizing accountability). Once the police have to start
| paying for their own fuckups, I think they will quickly turn
| on each other. And in the event they decide to double down
| and hide it collectively, they risk losing the pension fund
| for the entire police department (obviously depends on the
| court settlement). At least they'll have skin in the game for
| their corruption.
| Thiez wrote:
| So good cops who have never done anything wrong and never
| looked the other way or covered up for their coworkers
| would lose their pension?
|
| Communal punishment is considered a war crime under the
| Geneva Conventions. While those clearly do not apply in the
| situation you propose, it may be an interesting datapoint
| for considering its fairness.
| 4eor0 wrote:
| SCOTUS ruled last December Federal law allows suing government
| agents who violate Constitutional rights.
|
| https://ij.org/press-release/u-s-supreme-court-rules-unanimo...
|
| Cities should start suing on behalf of their citizens.
| giantg2 wrote:
| But it has to be previously defined in case law or something
| that is considered defacto through an egregious violation,
| right?
|
| On a side note, do you know of any case law that shows that
| leaving a charge stand when you know it is false (no
| detention/custody) is a violation of Constitutional rights? I
| have a situation that this would be useful for.
| hayst4ck wrote:
| There must be some uncomfortable truth in regards to police
| officers, the type of thing you only understand if you are
| responsible for leading/paying them.
|
| Clearly police officers are above the law in America. Clearly
| blue lives matter/thin blue line is a very deep cultural problem
| within the force. Clearly police unions protect people who
| shouldn't be protected. Clearly police officers protect their
| peers when their peers commit crime. Clearly there is some level
| of infiltration by white supremacists into police forces. Clearly
| police in major cities do not do a very good job of de-escalation
| at all.
|
| The average citizen has almost certainly seen a video of a police
| officer acting outrageously and not ending up in prison. Everyone
| here has theories that will solve it: end qualified immunity, fix
| incentives, destroy police unions. Most likely none of us are
| experts. I can't shake the feeling that there is some truth or
| barrier to this problem that the average person doesn't know
| about/the government doesn't think we can handle being told.
|
| If nothing else any reform must have the blessing of police
| officers. If police officers quit en masse that is something
| society at large isn't willing to tolerate. Just like the old
| slashdot e-mail reform meme of ol'
| (https://yro.slashdot.org/story/04/04/06/1629219/analysis-
| of-...), I suspect we need a similar meme for police reform.
| Natsu wrote:
| The interesting thing is that they only stopped him for a few
| minutes and, once they realized he wasn't suspicious, declined
| to do anything and let him go, then neglected to return his
| phone until it was demanded back. Despite the headline, they
| didn't go back and invent charges for the guy, they determined
| he was innocent and dropped it, though they neglected his
| phone.
|
| One problem with making a federal case out of this is that it
| tends to incentivize the cops to make their own federal case
| out of this in defense, i.e. to make stuff up so they have a
| defense if they made a mistake.
| stormbrew wrote:
| > If nothing else any reform must have the blessing of police
| officers.
|
| This statement right here is a pretty roundabout way to speak
| the truth that "reform" is unlikely to ever change anything.
| Even these moderate proposals that are just pointless theatre
| are opposed tooth and nail by police officers and unions
| everywhere.
|
| Hell, in the midst of everything going on last year, many
| police unions insisted their budgets needed to be _increased_
| at the expense of all other city departments facing cuts.
| itronitron wrote:
| >> Clearly police officers are above the law in America.
|
| I think many law enforcement officers view themselves as 'the
| law' and therefore believe that the ends justify the means. The
| popular, although dated, culture backs them up on that and
| there are many laws that favor law enforcement over suspects.
|
| Police in the US think they are above the law because in many
| ways they are. The good ones know how to find the balance and
| keep the peace.
| aneemzic wrote:
| I guess it stems from a time when all you really had to work
| with was physical evidence and the only records being what
| officers had written down. So it really wouldn't have worked
| any other way. A suspect is always going to say whatever
| makes them seem innocent. "I wasn't holding that knife when
| you arrested me" would be impossible to disprove if the
| suspect was wearing gloves at the time or forensic evidence
| wasn't yet available. So in some ways the officers word had
| to hold more weight.
|
| It seems like the only solution is for every single
| interaction to be digitally recorded.
| s1artibartfast wrote:
| >I can't shake the feeling that there is some truth or barrier
| to this problem that the average person doesn't know about/the
| government doesn't think we can handle being told.
|
| I think the truth is simple. Police officers are regular
| people, not supermen. They work an awful and dangerous job
| where they interact primarily with the worst individuals in our
| society. There will always be bad apples.
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