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It turns out that Derek Chauvin, the former Minneapolis police officer who was filmed killing George Floyd last week, has had 17 different complaints of serious misconduct during his career. That puts him among the 10-percent-worst offenders in the Minneapolis police department.

The complaints vary from being named in a brutality lawsuit, to using demeaning, unprofessional language in public, to aiming his weapon at children. But Chauvin never got into any serious trouble.

Civilians have filed 2,600 misconduct complaints against Minneapolis police officers over the past several years. Only 12 of them (0.46 percent) resulted in any discipline against the officer, with the most severe punishment being a one-week suspension.

Its not just Minneapolis. Around the country, the percentage of civilian complaints that result in disciplinary action is astonishingly low. And the rate at which offending officers are severely disciplined, fired, or charged with a crime, is effectively zero.

In May of 2019, the American Economic Association published a study titled Good Cop, Bad Cop: Using Civilian Allegations to Predict Police Misconduct. (RCReader.com/y/badapple1) The authors studied 50,000 civilian complaints against Chicago police to see if those complaints could be an indicator of who is/isnt a bad apple.

The results were obvious: Officers with the most complaints have the highest likelihood of being involved in a major civil rights issue. But theyre seldom removed. The Chicago police officer who shot an unarmed 17-year old boy in 2014, for example, was among the departments worst 3 percent in terms of civilian complaints, with half of the complaints alleging excessive force.

So it turns out you can spot a bad apple. You just cant remove them and give the boot to people like Chauvin who pose obvious risks. There are plenty of good, duty-minded cops who would love to kick out the bad ones. But the system fails everyone miserably.

One key reason is a legal doctrine known as qualified immunity.

This goes back to a 1967 Supreme Court case which ruled that government officials should be shielded from personal liability while carrying out their duties. This applies to police officers as well. In other words, you cant sue the cops if they assault you during arrest, or invasion of your home, because theyre technically performing their official duties.

The Supreme Court did make allowances, e.g. police and government agents would not be protected if their actions violate clearly established law or constitutional rights. But this is very difficult to prove.

Over the years, as civilian victims have attempted to sue police officers for misconduct, courts have routinely sided with the cops. The argument is that whatever laws the police officers violated were not clearly established, and hence the cops are protected by qualified immunity.

Heres one absurd example: In 2013, Fresno police officers raided a home that was suspected to be involved in a gambling operation. They seized $275,000, but only booked $50,000 as evidence. The other $225,000 mysteriously disappeared.

The suspects sued, and amazingly, the court ruled that there was no clearly established law holding that officers violate [the Constitution] when they steal property seized pursuant to a warrant ... and therefore the officers were protected by qualified immunity. Yes, you did read that correctly. And even the Supreme Court now recognizes that qualified immunity has gone too far.

In a 2018 case, Justice Sonia Sotomayor wrote that qualified immunity is an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment it tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Justice Clarence Thomas also voiced growing concern with our qualified immunity jurisprudence in a 2017 concurring opinion on Ziglar v Abbasi. (RCReader.com/y/badapple2)

As long as qualified immunity lasts, it will continue to be abused.

In early June, Representative Justin Amash from Michigan co-sponsored a new bill, the Ending Qualified Immunity Act. (RCReader.com/y/badapple3) In the open letter to Congress, Amash and his co-sponsor Representative Ayanna Pressley asserted that the pattern of egregious police misconduct continues because police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve. (RCReader.com/y/badapple4)

Unions Are Part of the Problem Another major reason why the system fails is because of the unions. Police unions exist (in theory) to protect their officers. Like any union, they negotiate wages, working conditions, etc. But as always, union interference goes way too far.

For example, police unions negotiate contracts with city governments that expressly prohibit officers careers from being blemished by civilian complaints.

Obviously, there are always going to be fake or overblown complaints against officers. But union rules require complaints to go through a highly bureaucratic investigation process thats closely monitored by the union.

So the unions protect their officers from scrutiny. And in the unlikely event that a complaint is sustained (0.46 percent in the city of Minneapolis), the unions protect their officers from any serious punishment.

In New York City, nearly 20 percent of the contract negotiated between the police union and the city government is devoted to disciplinary procedures and grievances.

Section 8 of Article XVI, for example, allows an officer to have his/her disciplinary record expunged under certain circumstances. And Article XXI provides several pages of lengthy protections for an officer who has been accused of misconduct.

This is why officers, even when theyre caught on film committing a crime, are often suspended with pay, never face trial, and only end up with a slap on the wrist (that can later be expunged). In Baltimore and Cleveland, union contract require the deletion of most disciplinary records.

Unions also ensure that officers who are disciplined have a multitude of options to have the ruling against them overturned. This hassle makes it incredibly difficult to weed out troublemakers.

In 2015 WNYC public radio published Is Police Misconduct a Secret in Your State? According to their study, only 12 states make police disciplinary records public, 15 make severe disciplinary records available, and 23 states keep all records confidential. Iowa keeps them confidential and Illinois provides limited access. (RCReader.com/y/badapple5)

And just in case the end result wasnt completely obvious, economist Rob Gillezeau of the University of Victoria is studying the relationship between police unionization and civilian killings. According to his current analysis, theres nearly a 3-percent increase in civilian shooting deaths in the counties where a local police department unionizes. (RCReader.com/y/badapple6)

This is pretty ironic when you think about it: Bolshevik politicians love unions. But police unions are an obvious example of how good intentioned unions can be destructive and literally destroy peoples' lives.

Simon Black is an entrepreneur, world traveler, and writer, and publishes the Web site SovereignMan.com.

Read more from the original source:
Qualified Immunity and Police Unions: Removing the Easily Spotted Bad Apple Is Very Difficult - River Cities Reader

It was a Monday in June 2019, and a sharply divided U.S. Supreme Court had just issued a 54 decision in a controversial case. Nothing unusual in thatexcept for the way the justices lined up to vote. At one end stood Neil Gorsuch, a conservative jurist appointed by President Donald Trump. At the opposite end stood Brett Kavanaugh, a fellow conservative and Trump appointee. What drove them so far apart?

At issue that day inUnited States v. Daviswas a federal statute that, in the Court's words, "threatens long prison sentences for anyone who uses a firearm in connection with certain other federal crimes. Butwhichother federal crimes?" The law under review called for enhanced sentencing in cases involving so-called crimes of violence, which are felonies "that by [their] nature, involv[e] a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

And what exactly doesthatmean? The experts differed, and that was the source of the problem as far as Gorsuch was concerned. "Even the government admits that this language, read in the way nearly everyone (including the government) has long understood it, provides no reliable way to determine which offenses qualify as crimes of violence," he wrote for the majority, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. "In our constitutional order," Gorsuch maintained, "a vague law is no law at all," because it violates the core constitutional requirement that all federal statutes "give ordinary people fair warning about what" is demanded of them. This murky statute failed the test. "When Congress passes a vague law," Gorsuch concluded, "the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again."

Kavanaugh did not like the sound of that. "The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality," he lamented in dissent, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Yes, the Supreme Court should "ensure that Congress acts within constitutional limits and abides by the separation of powers," Kavanaugh conceded. "But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers." In Kavanaugh's telling, Gorsuch had just committed the unpardonable sin of judicial activism. The majority opinion took the Court "off the constitutional cliff."

Two days later, Gorsuch butted heads with another Republican appointee in another criminal justice case, this time trading verbal blows with Alito over the proper scope of the Sixth Amendment right to trial by jury. "Only a jury, acting on proof beyond a reasonable doubt, may take a person's liberty," Gorsuch wrote for the majority inUnited States v. Hammond, in which, once again, he was joined by the Court's four Democratic appointees. "Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt."

Not so fast, Alito shot back in dissent. Gorsuch's opinion "is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications." Not exactly the nicest thing that one conservative judge can say to another.

It might be surprising to hear, but these clashes are not isolated incidents. They are evidence of a growing trend: Today's criminal justice docket is bringing out all sorts of divisions among right-of-center jurists. If you want to understand some of the biggest constitutional battles of our timefrom the fight over the Fourth Amendment right to be free from unreasonable searches and seizures to the showdown over qualified immunity for copsyou need to pay heed to what's happening in the fractious world of Republican-appointed federal judges.

Criminal justice reformers were cautiously optimistic in January 2017 at the news that President Donald Trump had picked Neil Gorsuch to fill a vacancy on the U.S. Supreme Court. Of the 21 names on Trump's SCOTUS shortlist, Gorsuch, who was then a judge on the U.S. Court of Appeals for the 10th Circuit, had one of the more promising records in criminal cases. As investigative journalist (and formerReasonwriter) Radley Balko put it, Gorsuch's rulings on the Fourth Amendment were "encouraging, particularly for a nominee from a president with Trump's blustery law-and-order rhetoric."

Especially heartening was Gorsuch's 2016 dissent inUnited States v. Carloss. The case centered on whether police officers had the "implied consent" to enter private property for a warrantless "knock and talk" on a homeowner's front porch even though the homeowner had placed multiple "No Trespassing" signs around the property and even on the front door. The majority opinion, authored by Judge David Ebel, an appointee of President Ronald Reagan, sided squarely with the cops. "Under the circumstances presented here," Ebel wrote, "those 'No Trespassing' signs would not have conveyed to an objective officer that he could not approach the house and knock on the front door seeking to have a consensual conversation with the occupants."

Gorsuch practically reeled in disbelief. Under the majority's flawed theory of the Fourth Amendment, he marveled, "a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Eventhatisn't enough to revoke the state's right to enter." As Gorsuch dryly observed, "this line of reasoning seems to me difficult to reconcile with the Constitution of the founders' design."

Gorsuch's embrace of the Founders' Fourth Amendment would soon make waves at the Supreme Court. Consider the January 2018 oral arguments inByrd v. United States. That case had arisen four years earlier when a woman named Natasha Reed rented a car and allowed her fianc, Terrence Byrd, to drive it in violation of her rental contract, which listed her as the sole authorized driver. When the state police stopped Byrd for a minor traffic infraction, the officer searched the trunk and discovered heroin and several flak jackets. Byrd wanted the courts to throw that evidence out as the fruits of an illegal search.

Here's how the question was presented to the Supreme Court: "The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter's permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?"

During the oral arguments, Gorsuch told Byrd's lawyer, Robert Loeb, that there was a property rights theory "on which you might prevail." That theory, "essentially as I understand it," Gorsuch said, is "that possession is good title against everybody except for people with superior title."

"We think the property interest here, the right that Mr. Byrd would have had to bring a trespass action, demands a recognition of his right to invoke the Fourth Amendment," Loeb replied.

In other words, Byrd had "possession" of the car under common law principles. If, while he was driving it, somebody else tried to break in and steal it from him, Byrd would have a common law right "to bring a trespass action" against that would-be thief. In this case, the trespasser was the state police officer, who, absent probable cause, had no authority to search the trunk.

Alito promptly spoke up in objection. "The problem with going down this property route is that we go off in search of a type of case that almost never aroseif it ever did ariseat common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th century America? Never."

Loeb pushed back on Alito's characterization. "It's your right to bring a trespass action against a stranger," he told Alito. "The fact that you can exclude a stranger and bring a trespass action against him is what supports your property right under the Constitution."

A few minutes later, Alito tried to poke another hole in the property rights theory that Gorsuch had seemingly endorsed.

"The Constitution uses the wordpropertynumerous times," Alito told Loeb, "but the wordpropertydoesn't appear in the Fourth Amendment. It talks about effects, which are defined by Samuel Johnson's dictionary asgoods or movables. So is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?"

"I think if the common law recognizes your right," Loeb replied, "then both under the common law and common sense, that it makes sense to recognize a right to invoke a Fourth Amendment right."

Gorsuch remained quiet during those exchanges between Alito and Loeb. But he spoke up again during the second half of the oral arguments, when Assistant to the Attorney General Eric Feigin was presenting the government's side of the case by arguing that Byrd, "like other unauthorized drivers, simply has no connection to the car at all."

"Mr. Feigin, you keep saying that," Gorsuch responded, "but as a matter of property law, now and forever, a possessor would have a right to exclude other people but for those with better title. So someone in this position would have a right, I think you'd agree, to exclude someone who's attempting to get in the car to hijack it, carjack it. You'd also have a right to throw out a hitchhiker who had overstayed his welcome. I think you're having to argue that the government has a special license that doesn't exist for any other stranger to the car."

When Feigin tried to reject that description of the government's position, Gorsuch pressed: "Do you agree that Mr. Byrd could have excluded a carjacker?"

"I think by virtue of simply being in the car, he probably could have fended off a carjacker, and we wouldn't oppose his right to do so," Feigin answered.

"By virtue of his possession he would have a right to do so," Gorsuch corrected him. "And he would have a right to throw out a hitchhiker as well. So why not the government?"

In sum, Gorsuch was pushing a property rights theory of the Fourth Amendment that, if adopted by the Supreme Court, would cause law enforcement to lose this case and a great many others. (Byrd ultimately prevailed on more limited grounds.) Alito, recognizing the threat to his own narrower vision of what the amendment means, launched a counterattack.

It was a preview of things to come.

In June 2018, the Supreme Court decided one of its biggest Fourth Amendment cases in decades.Carpenter v. United Statesoriginated when the FBI, acting without a search warrant, obtained the cellphone records of a suspected armed robber named Timothy Carpenter. With those records, which were obtained from his service provider, law enforcement officials identified the cell towers that had handled his calls and proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter at trial.

The central issue before the Supreme Court was whether Carpenter had a "reasonable expectation of privacy" in the information contained in those records, or whether he had forfeited such privacy protections by voluntarily sharing information about his whereabouts with his cellular service provider. As the Supreme Court put it inUnited States v. Miller(1976) andSmith v. Maryland(1979), "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

It was impossible to miss the broader implications that the case held for the civil liberties of all Americans. If the government can snoop around in your cellphone records without a warrant, what's left of the Fourth Amendment's protection against warrantless government searches?

The Court ultimately ruled 54 for the civil liberties side. "A person does not surrender all Fourth Amendment protection by venturing into the public sphere," declared Chief Justice Roberts' majority opinion. "We decline to grant the state unrestricted access to a wireless carrier's database of physical location information."

The fourCarpenterdissenters assembled in two separate camps. The first was comprised of Justices Thomas, Alito, and Anthony Kennedy. "The Court's stark departure from relevant Fourth Amendment precedents and principles," they objected, "places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation." In their view, the Court should have followed its precedents inMillerandSmithand held that "individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party." Cellphone records, they insisted, "are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process."

Gorsuch occupied a camp that was uniquely his own. In fact, his solo dissent hardly seemed like a dissent at all. He clearly thought Carpenter deserved to win. He just disagreed with the majority about precisely how that win should have happened.

"I would look to a more traditional Fourth Amendment approach," Gorsuch wrote. "The Fourth Amendment protects 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.' True to those words and their original understanding, the traditional approach asked if a house, paper or effect wasyoursunder law. No more was needed to trigger the Fourth Amendment." Furthermore, he continued, "it seems to me entirely possible a person's cell-site data could qualify ashispapers or effects under existing law."

"I cannot fault" the majority "for its implicit but unmistakable conclusion that the rationale ofSmithandMilleris wrong; indeed, I agree with that," Gorsuch added. "At the same time, I do not agree with the Court's decision today to keepSmithandMilleron life support." Put differently, Gorsuch wanted to scrap those third-party precedents and have the Court adhere instead to an originalist, property rightsbased theory of the Fourth Amendment.

It was a far cry from the Kennedy-Thomas-Alito objection to placing "undue restrictions" on the powers of law enforcement. Indeed, if a majority of the Court had listened to Gorsuch, the cops would now be wearing even heavier Fourth Amendment shackles. Perhaps next time they will.

Similar fights over the powers of law enforcement are breaking out among Republican appointees on the lower courts. Take the question of whether it should be a crime to record the police in public. InAmerican Civil Liberties Union of Illinois v. Alvarez(2012), the U.S. Court of Appeals for the 7th Circuit confronted an Illinois eavesdropping statute that made it a felony offense, punishable by up to 15 years in prison, to record "all or any part of any conversation" without first receiving the consent of all parties to that conversation.

The ACLU of Illinois had a big problem with that. The organization had recently formed a Chicago-area "police accountability project" that, among other things, recorded police officers without their consent while those officers went about their official duties. To prevent both its operatives and the average camera-toting citizen from being prosecuted as felons, the state ACLU filed suit in federal court against Cook County State's Attorney Anita Alvarez, seeking an injunction that would bar her from enforcing the eavesdropping law against individuals whose only "crime" was recording the cops.

Alvarez fought the injunction tooth and nail. In the words of 7th Circuit Judge Diane Sykes, an appointee of President George W. Bush, Alvarez "has staked out an extreme position. She contends that openly recording what police officers say while performing their duties in traditional public forastreets, sidewalks, plazas, and parksis wholly unprotected by the First Amendment."

Sykes rejected that view and issued the injunction. "Any way you look at it," she said, "the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny."

Writing in dissent, Judge Richard Posner, a Reagan appointee, faulted Sykes for both misinterpreting the Constitution and obstructing police work. "The constitutional right that the majority creates," he reproached, "is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty." Several federal courts have since followed Sykes' lead, though the issue still remains unsettled in others.

And then there's the ongoing debate over qualified immunity, a legal doctrine that generally shields police officers from being sued when they violate citizens' constitutional rights while on the job. According to the Supreme Court's controversial decision inHarlow v. Fitzgerald(1982), government officials are entitled to immunity from civil suits so long as the conduct that they're being sued over "does not violate clearly established statutory or constitutional rights."

What that means in practice, quipped Judge Don Willett, a Trump appointee who sits on the U.S. Court of Appeals for the 5th Circuit, is that "public officials [may] duck consequences for bad behaviorno matter how palpably unreasonableas long as they were thefirstto behave badly." As Willett put it, "qualified immunity smacks of unqualified impunity."

To say the least, that is not a unanimous opinion on the 5th Circuit. In fact, Willett's stance has placed him in direct conflict with two of his fellow Trump appointees on that very court. Their simmering dispute finally exploded into the open inCole v. Hunter(2019), a case that centered on a family's lawsuit over the police shooting of their mentally disturbed 17-year-old son.

In a dissent, Willett conceded that the officers were entitled to qualified immunity under controlling Supreme Court precedent. He then took aim at the precedent itself, faulting SCOTUS for formalizing "a rights-remedies gap through which untold constitutional violations slip unchecked." According to Willett, "the real-world functioning of modern immunity practiceessentially 'heads government wins, tails plaintiffs lose'leaves many victims violated but not vindicated." He left little doubt that if he were a member of the Supreme Court, he would get busy setting things straight.

Judges James Ho and Andrew Oldham wrote separately for the purpose of lambasting their fellow Trump appointee. "Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders' Constitution," Ho and Oldham wrote in a joint dissent, citing Willett and other critics of the doctrine. "As originalists, we welcome the discussion," they continued. But "a principled commitment to originalism provides no basis for subjecting these officers to trial."

According to Ho and Oldham, Willett's "one-sided approach" is entirely too hostile toward cops. "Originalism for plaintiffs, but not for police officers," they lectured Willett, "is not principled judging."

Willett replied in a footnote. "As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham," he wrote, "it is, respectfully, a pyromaniac in a field of straw men." As Willett pointed out, to call for the Supreme Court to revisit this particular doctrine is hardly an anti-originalist heresy. "Justice Thomasno 'halfway originalist'has done the same," Willett retorted. He also doubled down on his critique: "My concerns, repeated today, are doctrinal, procedural, and pragmatic in nature." Qualified immunity, Willett stressed, "should be rethought."

The fighting over qualified immunity is only going to get fiercer in the federal courts in the coming years. And that's just looking at the Trump appointees.

Pundits often speak of the judiciary in terms of liberal or conservative judges issuing liberal or conservative opinions. The reality is far more complicatedand interesting. As the growing divide among "conservative" judges in criminal justice cases makes clear, such labels frequently obscure more than they reveal.

Continued here:
Criminal Justice Divides the 'Conservative' Judiciary Reason.com - Reason

The 4th U.S. Circuit Court of Appeals revived a federal civil rights lawsuit this week against police in Martinsburg, West Virginia, vacating a lower court ruling that had granted five officers qualified immunity in connection with the murder of Wayne Jones. This has to stop, Judge Henry F. Floyd wrote.

The opinion forcefully rejected the officers contention that they shouldnt be forced to defend killing Jones, which they called a split-second decision after hed refused to comply with their lawful orders.

The idea of qualified immunity for police is that they can be insulated from charges of violating a persons constitutional rights when they could reasonably believe that their actions were lawful, and it has been front and center amid protests and calls for reform since the murder of George Floyd by Minneapolis police officers on May 25. Though not immediately relevant in that case the four officers have been criminally charged qualified immunity is a legal doctrine that regularly shields officers from facing any civil sanction for using excessive force. The Justice in Policing Act of 2020, filed by House Democrats on June 8, seeks to do away with its sweeping protections.

Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives.

In the Jones case, the officers argued in a motion for summary judgment that the case against them should be thrown out based on qualified immunity in other words, thatit should be dismissed before a jury could weigh the evidence against them. The three-judge panel of the 4th Circuit roundly rejected that argument. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives,Judge Floyd wrote. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.

It was roughly 11:30 p.m. on March 13, 2013, when Officer Paul Lehman spotted Jones walking along Queen Street in downtown Martinsburg. He wasnt on the sidewalk, as city ordinance would require, so Lehman followed Jones, a 50-year-old black man who was homeless and had been diagnosed with schizophrenia. After about a minute, Lehman honked, pulled over, and asked Jones for identification. Jones didnt have any. Lehman asked if he had any weapons; Jones wasnt sure what that meant. Anything, Lehman responded. Guns, knives, clubs. Jones did have a small fixed-blade knife tucked inside his right shirt sleeve, but he didnt say that specifically, only that he had something on him.

From there, the situation quickly escalated. Lehman demanded that Jones get up against the car. Jones wanted to know why What do you want? he asked but Lehman didnt explain. Instead, Lehman called for backup and, as Jones moved away, drew his Taser and fired. A second cop, Daniel North, rolled up on scene andalso fired a Taser at Jones. Jones fled, running into the alcove in front of a bookstore down the street.

Before long, three more cops William Staubs, Eric Neely, and Erik Herb would arrive. Jones was struck in the neck, kicked, and put into a chokehold the 4th Circuit opinion notes that choking and gurgling sounds can be heard in dashcam video recordings of the incident before one of the officers realized that Jones had the small knife. The cops pulled away, forming a semicircle around him with their weapons drawn. Jones was limp and lying on his right side. Even though he was not moving, the cops demanded that Jones drop his knife. When he didnt respond, all five fired their guns a total of 22 rounds in two seconds. A majority of the shots hit Jones in the back and buttocks. He died at the scene.

A Berkeley County grand jury declined to indict the officers on criminal charges and in 2014, Joness two younger brothers, Bobby and Bruce, sued in federal court alleging that the officers had used unreasonable and excessive force. I want the public to know the truth, Bruce told the Herald-Mail in 2014.

The case pinged back and forth between the federal district court, which repeatedly dismissed it, and the 4th Circuit, which has now revived the suit for the third time in six years.

In her most recent decision dismissing the case, District Judge Gina Groh found that the officers were entitled to immunity. The question before her was whether the officers would have understood at the time that their actions leading to Joness death constituted an illegal use of excessive force. Jones had a knife, she wrote, and fled from the officers. While they were on top of Jones in front of the bookstore, one of them was cut with the knife though he wasnt hurt an action Groh referred to as an attempted stabbing. When the cops realized that Jones had the weapon they backed away, and because they did, Jones wasnt effectively secured even though he wasnt moving.

Accordingly, the court holds that, in March 2013, it was not clearly established that an officer would violate an individuals Fourth Amendment right to be free from excessive force by shooting a person who: (1) committed a non-violent misdemeanor; (2) resisted arrest and fled from officers; (3) was armed with a knife and attempted to stab an officer; and (4) was lying on the ground motionless at the time the shots were fired, Groh wrote in September 2018. Therefore, the officers are entitled to qualified immunity and summary judgment must be granted.

Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground.

The 4th Circuit was not impressed. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground, Floyd wrote.

The circuit court found that there was every reason to think that Jones was under the officers control, and they should have known that shooting him repeatedly was excessive. The fact that Jones had been pinned to the ground by multiple officers could certainly signal that he was secured, and the fact that he was unresponsive when they stood above him could have clued them in that he was not a threat. The officers contend that Jones should have dropped the knife upon their commands, and that his failure to do so places his shooting in the gray zone where qualified immunity applies, the court wrote. But, shouting drop the knife seconds before shooting him was, at best, farcical because it was impossible for an incapacitated person to drop a knife tucked into his sleeve.

Indeed, in looking back to the entire incident, the court suggests that the officers behaviors bore directly on its deadly outcome. Non-cooperation with law enforcement has never given officers carte blanche to use deadly force against a suspect; luckily for many of us, neither has being armed with a small knife, the court wrote. Jones was not an armed felon on the run, nor a fleeing suspect luring officers into a high-speed chase. Jones was walking in the road next to the sidewalk, away from the dark shadows and blind corners of buildings at night. He was without housing and had a knife on his person. As a pedestrian, he should have been on the sidewalk, but Officer Lehman never told him that.

Christopher Brown, an attorney representing the Jones family, was elated by the ruling and he had no idea it was coming. The 4th Circuit had set the case for oral arguments, which were then postponed amid the coronavirus outbreak. Brown was still waiting for word on when they would be rescheduled when the opinion dropped. I cannot tell you how it felt to call the brothers and to let them know were going to have the chance to seek justice for their brother, he said.

He said Joness killing fits squarely within the national conversation about racism and policing. Anyone who is going to be honest is not going to be naive enough to say that had this been a Caucasian female, that it wouldve come out the same way, he said. The approach and the attitude and demeanor of officers towards African American men is a problem. This is why the calls for change are not just national, theyre international now.

And hes pleased by the 4th Circuits critique of qualified immunity. Im encouraged to hear the court step out of its box a little and make a point that theyre not going to allow this shield to be used to protect officers from the unwarranted use of excessive force, he said. Brown doesnt believe that qualified immunity will ultimately be abolished, but he says that it needs to be reined in and applied more judiciously. The way its applied in these cases is that it is constantly stretched in favor of the officer. And it should not be that way. People want their day in court, and theyre being denied their day in court, repeatedly, he said. Waynes brothers, they have no desire that their brother become a headline person, but they do hope that the loss of their brother in some way will help impact this momentous occasion where were seeking change.

Here is the original post:
This Has to Stop: Court Rejects Qualified Immunity for Officers Who Shot Wayne Jones - The Intercept

Two police officers who allegedly assaulted a man outside of his own house and arrested him on bogus charges after failing to identify themselves as law enforcement are protected by qualified immunity and cannot be sued, a federal court confirmed Monday.

Shase Howse, the appellant, alleges that on July 28, 2016, a group of men pulled up to his home in an unmarked vehicle without uniforms on and asked him if he lived at the residence. After Howse answered in the affirmative, Officer Brian Middaugh of the Cleveland Police Department (CPD) pressed Howse on if he was surehe lived there. "Yes, what the fuck?" Howse allegedly responded, still unaware Middaugh was a cop. Middaugh, commenting on Howse's bad attitude, then exited the unmarked vehicle and approached him on the porch, asking him once again if he lived there. Howse said he did.

Following that exchange, Howse alleges that Middaugh commanded him to put his hands behind his back because he was going to jail. Howse did not oblige, telling Middaugh that he lived at the residence and that he'd done nothing wrong. Middaugh then threw him to the ground, and with the help of CPD Officer Thomas Hodous, handcuffed him while Howse resisted. It was after he was tackled that Howse realized the men were police officers.

As he lay on the porch, Howse's mother, who heard the noise from inside, exited the residence, where she says she saw one man straddling her son while another punched his head with a closed fist, causing Howse's head to hit the porch. She, too, did not initially realize they were officers.

Howse was eventually jailed for several days before posting bond, and charged with two counts of assault and one count of obstructing official business. TheCuyahoga County Prosecutor's Office eventually dismissed those charges.

Howse then brought three claims against Middaugh and Hodous: one for excessive force in violation of the Fourth Amendment, another for malicious prosecution in violation of the Fourth Amendment, and the last for assault and battery in violation of Ohio law. He also brought one claim against the City of Cleveland, arguing that the municipality shares liability for the officers' constitutional violations. He first filed his suit the United States District Court for the Northern District of Ohio at Cleveland, where a panel granted the officers qualified immunity and dismissed the case against the city. Howse then appealed.

In rejecting Howse's suit, Circuit Judge Amul Thapar of the Sixth Circuit Court of Appeals illustrated what makes qualified immunity so confounding: public officials can violate your civil rights without consequence if those rights have not been "clearly established" by existing case law.

"'Clearly established' means that the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct," Thapar writes in his majority opinion. "To avoid 'paralysis by analysis,' qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law."

Reasonable officers should know basic right from wrong, Thapar implies, yet according to qualified immunity, they also need the judiciary to spell out those fundamentals with myopic detail.

What's more, the doctrine has indeed been used to protect "plainly incompetent officers" and "those who knowingly violate the law." Consider the two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant. The U.S. Court of Appeals for the 9th Circuit ruled that "the City Officers ought to have recognized that the alleged theft was morally wrong," but that they "did not have clear notice that it violated the Fourth Amendment." Both officers were granted qualified immunity.

Then there was the sheriff's deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at the family's non-threatening dog while in pursuit of a suspect who had no connection to the little boy or his dog. Because there was no case law saying that shooting someone while aiming at something else infringes on someone's rights, the deputy received qualified immunity. Or the police officer in Los Angeles who shot a 15-year-old boy one morning because he saw the boy's friend holding a plastic airsoft gun replica. In that case, there was no legal precedent that said accidentally shooting a bystander infringes on the bystander's rights, though the U.S. Court of Appeals for the 9th Circuit acknowledged that "a rational finder of fact" would conclude that the officer's conduct "shocked the conscience and was unconstitutional under the Fourteenth Amendment." The officer got qualified immunity anyway.

But Thapar's decision is in a league of its own, says Clark Neily, vice president for criminal justice at the Cato Institute. "It requires a certain amount of effort to write an exceptionally bad qualified immunity opinion, but this is, by any standard, an exceptionally bad one," Neily says. "Simply refusing to interact with police, and even being rude to them, does not provide probable cause for them to make an arrest, which is really what this case boils down to."

Thapar disagrees. "Howse argues that the officers violated his clearly established right to be free from 'unreasonable government intrusions,'" he writes, calling that basic constitutional standard "much too vague." The officers needed to be specifically told by the courts that assaulting someone who disobeys an order and using "additional force" when that person resists arrest violates the Fourth Amendment.

The primary problem with that framing, Neily notes, is that it assumes Howse should have been arrested in the first place. Yet when determining whether to grant qualified immunity, the courts are legally required to accept the plaintiff's version of events. After all, the decision to withhold qualified immunity only gives someone the right to sue a public official.

For their part, the officers allege Howse was "lingering suspiciously" (in front of his own house) and that the area is "known for violence, drugs, and gang activity." They admit that Howse confirmed he lived at the home, but their doubts about his honesty led them to "investigate more," culminating in the violent confrontation. In his decision, Thapar pays lip service to Howse's account but proceeds to rule under the assumption that his arrest was warranted.

It's for that reason the Sixth Circuit erred in denying the petition for a rehearing en banc, said Circuit Judge Julia Smith Gibbons in a dissent published Monday. "In qualified immunity cases, we have long held that a plaintiff's right must be defined with careful attention to the 'specific factual circumstances' of the case," she writes. "And yet, in framing Shase Howse's right in this case, the panel fails to account for his suspected criminality (none), location (home), or conduct (truthfully answering questions)."

Gibbons also takes issue with the majority's dismissal of the malicious prosecution claima decision she calls "a precedent-setting error of exceptional public importance." Thapar asserts that, in resisting arrest "by stiffening up his body and screaming at the top of his lungs," Howse provides probable cause for the charge of obstructing official business. "And because there was probable cause for that charge," Thapar writes, "Howse cannot move forward with any of his malicious-prosecution claims," notwithstanding the fact that Howse's original crime was sitting outside of his own house.

On the assault and battery claim, the officers invoked "an Ohio statutory provision which provides a general grant of immunity to government employees." Thapar, a former federal prosecutor, granted that as well.

The Sixth Circuit's dismissal joins a mounting pile of decisions that protect public officials at the expense of the very people they've sworn to serve. But qualified immunity has come under new scrutiny amid protests surrounding George Floyd, the unarmed black man killed by former Minneapolis police officer Derek Chauvin. Rep. Justin Amash (LMich.) recently introduced a bill to kill the doctrine.

"We have an astonishing double standard in this country where members of law enforcement hold we the citizens to a very high standard of accountability," says Neily. "It is not a defense that you didn't know that your conduct was illegal. But when the shoe is on the other foot, and the question is what standard of accountability members of law enforcement should be held to, they insist that it be so low that it is practically zero."

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Cops Who Allegedly Assaulted and Arrested a Man for Standing Outside His Own House Are Protected by Qualified Immunity - Reason

A federal judge has placed formal restrictions on the Portland Police Bureaus ability to use tear gas on protesters, citing evidence officers have used excessive force in scattering recentdemonstrations.

In an order issued Tuesday night, U.S. District Court Judge Marco Hernandez granted a 14-day temporary restraining order on the PPBs use of the gas. The city continues to see nightly demonstrations demanding racialjustice.

The declarations, in this case, show that PPB has regularly used tearto disperse peaceful protesters, Hernandez wrote. It is likely that it will continue to do so. The risk of irreparable harm is further heightened by the context in which these protests areoccurring.

But while Hernandez seemed to side with plaintiffs who sued the city and have argued that the use of gas has been indiscriminate and unconstitutional, he did not grant the relief they sought. Police are still able to use tear gas during the two-week restraining order, Hernandez ruled. They just have to follow their ownrules.

The Court therefore orders that PPB be restricted from using tear gas or its equivalent except as provided by its own rules generally, Hernandez wrote. In addition, tear gas use shall be limited to situations in which the lives or safety of the public or the police are atrisk.

The ruling amounted to a sort of half-win for the group Dont Shoot Portland and two individual protesters who sued the city last week over the tear gas grenades that had become a common feature of protests playing out nightly in downtownPortland.

Well see if its a win based on what happens on the streets in the next week, said Jesse Merrithew, an attorney for the plaintiffs. If PPB stops gassing people, then its a win. If it doesnt change whats been happening on the streets then we didnt accomplish ourgoal.

Another attorney for the plaintiffs, Juan Chavez, said the order will make it easier forhis clients to hold police accountable if they fail to follow bureau policy around deployinggas.

What the judge is doing is putting in an order that allows the plaintiffs to have a fast track to a contempt hearing, said Chavez, who works at the Oregon Justice ResourceCenter.

Earlier in the day, Merrithew and attorneys with the city appeared before Hernandez via teleconference to make their cases, both impressing upon the judge the importance of hisruling.

Portland police used tear gas and rubber bullets to disperse protesters from near the Justice Center an hour before the 8p.m. curfew went into effect on May 30, 2020. The protests were against racist violence and police brutality in the wake of the killing of George Floyd by a white Minneapolis policeofficer.

JonathanLevinson/OPB

We know that the protests will continue tonight, tomorrow and indefinitely into the future,Merrithew told Hernandez at the hearing. If this court does not act, it is a certainty that police will use tear gas against protestersagain.

Lawyers for the city, meanwhile, argued that tear gas is a vital tool, used only when demonstrations get sufficiently out ofhand.

The city is not always perfect, and its response to protest is not always perfect, Deputy City Attorney Naomi Sheffield said. The city certainly hopes that, with or without this order, there wont be any further need for riot-control agents. But the city would ask that the court not take the unprecedented step of entirely eliminating thistool.

The lawsuit against the city alleges Portland officers have used indiscriminate, unchecked, and unconstitutional violence against protesters by repeatedly deploying tear gas against large crowds that have gathered in downtown Portland since May 29. That force is a violation of First Amendment free-speech protections and Fourth Amendment protections against unreasonable seizure, plaintiffs say, and should beprohibited.

Plaintiffs asked Hernandez not only to immediately issue a temporary restraining order against the Portland Police Bureaus use of gas on protesters but to issue an injunction on using gas as a crowd control measure moving forward. Plaintiffs have also requested that the city be required to create new policies for using crowd controlweapons.

Portland police use a substance known as CS gas to scatter demonstrators by causing extreme discomfort, coughing, watering eyes and snot discharge, among other possible effects. A similar substance used by the city, known as OC gas, is more akin to pepperspray.

Plaintiffs argue Portlands policies allowing use of these weapons against crowds are unconstitutional. Even if theyre not, they say, they are too often used on largely peaceful gatherings where only a small portion of people pose athreat.

PPBs actual practice and custom is to allow the use of tear gas against a crowd even when a substantial number of people in that crowd, or even the majority of that crowd, have engaged in no criminal acts and are not a danger to any person, the lawsuitsaid.

Portland police used tear gas and rubber bullets to disperse protesters from near the Justice Center an hour before the 8 p.m. curfew went into effect on May 30,2020.

JonathanLevinson/OPB

In a response submitted Tuesday, the city says plaintiffs are mischaracterizing its actions. It notes that massive protests have taken place throughout the city in the last week actions that, like similar demonstrations nationwide, were spurred by the May 25 death of George Floyd, a Black man killed by a white Minneapolis policeofficer.

In Portland, protesters have often blocked vehicle traffic while marching, even briefly shutting down Interstate 84 on the citys eastside.

These have occurred without use of riot control agents; in fact, largely without police intervention at all, the citys attorneyswrote.

Rather than seeking to curb demonstrators ability to speak out over police abuses and systemic racism, lawyers for Portland say the city only uses tear gas and other less-lethal weapons in limited instances in which people are throwing things at officers, vandalizing property or otherwise endangering publicsafety.

While protests have been overwhelmingly peaceful in the city, some demonstrators have repeatedly lobbed water bottles, fireworks, cans and other objects at police. According to the city of Portland, at least 30 officers have been injured since the protestsbegan.

Again and again, the PPB has reacted to those actions by declaring a civil disturbance or unlawful gathering. When crowds dont depart, officers have fired tear gas, flash bang grenades and other devices, sending protestersfleeing.

Police walk by a flaming dumpster during demonstrations in Portland, Ore.,May 31, 2020. The protests ultimately ended with police using tear gas and rubber bullets to disperse the crowd gathered around the Justice Center in downtownPortland.

JonathanLevinson/OPB

Confrontations have been especially common near the Multnomah County Justice Center, which several protesters broke into on May 29, setting fires that were quickly extinguished. The building houses the citys police headquarters, a jail containing hundreds of adults in custody, and courtrooms. It is, in short, a perfect symbol of the harms the protesters seek to address, the lawsuitsaid.

Since that incident, police have largely limited their efforts to keeping demonstrators away from the Justice Center, and have left protesters alone in other parts of thecity.

While some businesses also were vandalized and looted on May 29, the Justice Center incident with its possibility for a loss of prisoners lives merited special attention from the judgeTuesday.

Your request is a total ban, so that when people are lighting the Justice Center on fire, the police would not be able to use tear gas, Hernandez told Merrithew, the plaintiffs attorney. Are you suggesting to the court that in those circumstance the police shouldnt be able to use teargas?

Merrithew said plaintiffs were not asking for that. That was inartful, he responded. We should have thought that through more in thepleadings.

Instead, he said, his clients are asking for a ban on tear gas when the people harmed are individuals who have done nothing greater than passiveresistance.

City attorneys say riot control agents are used under strict rules, with demonstrators given adequate notice and time to leave, and with an incident commanders specific permission based on activity deemed unsafe. The city says using tear gas and other weapons on a larger group of people is far safer than thealternative.

Without riot control agents, including CS gas, law enforcements ability to disburse [sic] an unlawful assembly would likely require physical force, including person-to-person contact, which carries much higher risks for all involved, the citys answersaid.

That argument is similar to one police bureau officials have made under questioning from reporters in the lastweek.

But plaintiffs argue that police have not used tear gas and other weapons as judiciously as they claim. Their lawsuit says officers have used tear gas without warning or provocation, subjecting demonstrators to injury andpanic.

The plaintiffs and policehave submitted links to videos supporting their version ofevents.

One video, submitted by plaintiffs, shows officers firing weapons down what appears to be Southwest Taylor Street in downtown Portland, while no confrontation with demonstrators is evident. As they fire, onlookers scream that they are shooting gas into a crowd that includeschildren.

Videos submitted by police, meanwhile, show bottles, smoke bombs and other objects being hurled at police as they order demonstrators to depart. Another video shows a birds-eye view of protesters repeatedly kicking and pushing the chain link fence blocking off the area around the Justice Center. Officers eventually fire gas and other weapons at demonstrators in thevideos.

A person kicks the fence surrounding the Multnomah County Justice Center during protests over police brutality in Portland, Ore., June 5,2020.

JonathanLevinson/OPB

At Tuesdays hearing, city attorneys did not discount the possibility that police could have violated bureau use-of-force policies at some point during the protests. But Sheffield said the appropriate answer to such instances would be to sue the city for damages, not secure a blanket ban on tear gasuse.

But Hernandez found the videos, along with declarations filed by demonstrators,persuasive.

There is no record of criminal activity on the part of Plaintiffs, he wrote. To the contrary, there is even evidence that some protesters were confronted with tear gas while trying to follow police orders and leave the demonstrations. Given the effects of tear gas, and the potential deadly harm posed by the spread of COVID-19, Plaintiffs have established a strong likelihood that Defendant engaged in excessive force contrary to the FourthAmendment.

Medical officials saytear gas can help spread COVID-19 by causing coughing and sneezing, and can make people more susceptible to being harmed by theillness.

Its really, really a disaster, Dr. Melissa Belli, who works at Beavertons Virginia Garcia Wellness Center, told OPB last week. Its not only going to affect the people at [the] march but its going to affect the whole community. Its just going to have a domino effect in the way of the spread of thedisease.

The lawsuit includes declarations from 11 protesters who say police deployed gas with little reason, including a man who says his pregnant wife was caught in a cloud of gas, despite their attempts to remain distant from anyconfrontations.

There was no hint of provocation by either may family or any group I saw, the demonstrator, Andy Green, wrote. I honestly just felt like we [were] embodying the spirit toassemble

Green and his wife have filed a separate lawsuit against the city, seeking up to $200,000 in damages, The Oregonian/OregonLivereported.

Two Portland city commissioners, Jo Ann Hardesty and Chloe Eudaly, have called for a ban on tear gas at demonstrations. Mayor Ted Wheeler, the citys police commissioner, last week said hed told police to limit use of the gas to situationsin which there is a serious and immediate threat to life safety, and there is no other viable alternative fordispersal.

At issue Tuesday was the temporary restraining order, which plaintiffs attorneys argued was necessary to prevent an ongoing breach of constitutionalrights.

PPB tear gassing crowds of demonstrators constitutes excessive force and chills all peoples freedom of speech and assembly, a motion requesting the order said. People who would otherwise participate in protests and protesters now fear doing so due to unwarranted and indiscriminate police violence againstthem.

According to city attorneys, police have not used CS gas against protesters since Wheeler issued theorder.

Portland is not the only city grappling with the use of tear gas, as the nation erupts in calls for racial justice. Seattle Mayor Jenny Durkan last week temporarily suspended use of tear gas by that citys police force. Three City Council members have called for Durkan toresign.

Meanwhile a federal judge in Denver recently curbed officers ability there to use tear gas and other riot-control weapons. Portland city attorneys argued Tuesday that restrictions placed on Denver police were less strict than existing use-of-force guidelines used by thePPB.

Hernandez is expected to issue a decision on whether to grant a temporary restraining order within the nextday.

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Judge Considering Whether To Ban Tear Gas In Portland Protests - OPB News