Qualified Immunity Is Burning a Hole in the Constitution
politico.com
politico.com
IMHO, police officers as individuals should have qualified immunity. However, police departments and states should not have sovereign immunity for rights volations their agents commit.
Cops aren't constitutional lawyers, and rely on policy and training. States however are capable of hiring lawyers and setting appropriate policy and maintaining training curriculum.
Furthermore, innocent victims need to be compensated for the activities of the police department even when those activities are in line with department policies. If the police have a standoff and destroy a third party's house to get a suspect out, they should be jointly and severally liable for the damage. If the police arrest someone who is prosecuted and later found innocent or the charges are dropped, the person should be compensated for legal defense, time spent in jail, etc. Right now these externalities are effectively paid by a perverse reverse lottery where unlucky individuals get stuck covering the true cost of law enforcement, with little incentive for police departments to lessen their collateral damage. "You can be the rap but you can't beat the ride" should be seen as a bug to be fixed, rather than as a loophole of autocratic power to be exploited.
Ideally, holistic police oversight would take into account the damage they do and make sure that they take reasonable care to mitigate the damage. Ultimately the taxpayers should be on the hook one way or another for the full cost of police protection that they want
I'm not arguing against considering the qualitative issues on their own. I just think attempts to address them directly without addressing the underlying poor incentives are somewhat doomed. Additionally, plea bargains have to be massively reformed for the incentives to be significant.
Arrest records are an orthogonal topic squarely in the realm of commercial surveillance / data protection, which the US is sorely lacking. We need less narrow-scoped red tape like HIPAA and more general right to control all records about us ala GDPR.
[0] direct incremental costs paid out in cash if they're acquitted, as opposed to the large fixed costs of staffing the jail which come out of someone else's budget.
Saying No to union demands is always an option on the table.
All those "Thin Blue Line" flags you see everywhere? They have no interest in bringing the police unions to heel for covering up officer misconduct while on duty.
There are major cities in the US where even the mayor can't legally fire a police officer caught on video doing wrong.
Moreover, the balancing force to union demands is that too many demands will kill the company and thus the union, so the union ultimately has a shared interest in the health of the company. Public sector unions have no such incentive.
Public sector unions benefit their members at the expense of everyone else, and should be considered a defect of the union system.
Their only leverage is not doing their job. How, exactly, is not doing their job serving the public a form of serving the public?
Further, because public sector workers still represent agents of the public until they're let go. If the state abuses its agents too thoroughly for them to perform their tasks, or simply enough to have an impact its agents well-being, then the union represents a corrective force to the state's shortsightedness. This is an important dynamic because workers are only easily replaced if the next group doesn't also come to feel similarly aggrieved enough to unionize and strike. Further still, I'd point out that equating the state to the public it serves is only useful if the argument assumes that the public should be free to abuse its agents without ethical qualm.
This does not generally happen, though the unions will say it does. On average, the conflict is as I described. On average, a typical person does not benefit from the union position. The edge case is not interesting.
It’s like they have a license to do whatever in the hell they want.
[0]: https://www.nytimes.com/2005/06/28/politics/justices-rule-po...
This always seemed intuitive and obvious to me. The constitution is almost entirely negative "freedom from" rights. Gaurenteed positive rights are impractical and generally unworkable. This is why government obligation to act is a matter of policy, not rights.
Which is generally why such things are formulated as a duty instead. But you don't even need to do that in the case of the police. The police is special because they get granted the monopoly on violence. It seems obvious to me that granting such a powerful and dangerous tool should come with limits. E.g. the police is allowed to use violence only in the pursuit of protecting citizens.
So no, not a positive right, just a "freedom from" getting shot by the police for no reason.
But the US ended up on the Allies side in WW2, and much of he constitution (not all) follows classical-liberalism. So the US finds it's simultaneously talking about democracy and rights AND happier when those things are subverted/removed.
I know all nations contain contradictions. But I don't know any denied as this one...
[0] https://en.wikipedia.org/wiki/Definitions_of_fascism#Umberto...
This is true. It's also one of the largest and most diverse countries in the world, both geographically and demographically. Some might say it's ungovernable, the Disunited States.
> big parts of the US closely fit the definition(s) [0]
[Following the link] "What constitutes a definition of fascism and fascist governments has been a complicated and highly disputed subject"
Difficult to closely fit the definition when there's no clear definition. ;-)
Are you proud your sports team isn’t on the bottom of the ladder? Or would it actually be productive and improve things if you compared up?
Can the US be improved? Of course! My intention is not to defend the US but to accurately describe it. I don't think fascist is accurate. Above all, the US is large, complicated, and conflicted. Non-Americans like to paint America with a broad brush, but Americans are actually in widespread disagreement about a lot of things.
It seems like it would be productive to be grounded in reality and actually know where you sit on the ladder.
You can still look at the top teams and want to be better, but lying and telling the team you are at the bottom isn't helpful.
Excellent freedom of speech (because someone in 1780 thought of that).
But you can be gunned down in the street by the police (because some guy in 1780 forgot to explicitly ban that).
It's a weird mix no? And the Liberal bits all date back to way before anyone now alive was born (with a few exceptions like gay marriage)
Now, that is 25 too many for sure. But in a nation of 350 million people, 25 unarmed people killed by cops is sad but statistically a rounding error. Also, most of the time the cops in those cases are rightfully convicted and sent to prison so qualified immunity isn't relevant.
That said, there are far too many other police abuses that need to be addressed which are a more significant issue because they affect far more people.
The statistical likelihood of that happening is approximately zero. Extrapolating from this to Fascism is plainly ridiculous.
> "The cult of tradition"
This point is rather weakly supported, as Trump does not attend any tradition whatsoever. However, his Supreme Court picks are originalists from the Federalist Society, whose purpose is the maintenance of tradition.
> "The rejection of modernism"
Anti-vax, anti-woke, anti-LGBT.
> "The cult of action for action's sake",
I don't see this in Trump specifically. The Iraq invasion, certainly, but that's far enough removed from Trumpism that I'll say nah.
> "Disagreement is treason"
This, 100 times over. Trump has used, if not these exact words, this sentiment towards any sort of criticism especially when it comes from within his own party/cabinet.
> "Fear of difference"
Mexico. China. Shithole countries. Saying American Congresswomen should "go back where they came from."
> "Appeal to a frustrated middle class"
Trump's anti-NAFTA stance was widely described as the reason that he was the economically rational choice for many voters who were displaced from the middle class when manufacturing jobs were exported by that agreement.
> "Obsession with a plot"
QAnon.
> "Pacifism is trafficking with the enemy"
Trump was curiously less hawkish than recent presidents; he gets a pass here.
> "Contempt for the weak"
Trump wears this on his sleeve and proclaims love, literally love for authoritarian leaders he sees as strong.
> "Everybody is educated to become a hero"
This point is somewhat weak; but his attack on John McCain stands out: "I like people who weren't captured"
> "Machismo"
Yes. From "grab 'em by the pussy" to sexualizing his own daughter to his "low energy" comments about his political opponents; there are too many examples to list.
> "Selective populism"
This is a common theme for Trump -- he frequently equates his opinion with the will of the people, and derides anybody who disagrees with him as un-American.
> "Newspeak"
Calling this "newspeak" is contentious; Eco's point was about promoting an impoverished vocabulary. The Republican party has long relied on "definitions," or linguistic originalism, to argue against social progress; specifically against gay marriage and trans rights.
By my count, that's 9.5/14. Trumpism is more fascist than not, by Eco's definition. Hitler was bent on world domination, which is the principle axis that Trumpism fails Eco's test. That Trump was elected points to the popularity of fascism in the US. It isn't a monoculture, America is not just fascist, but concerns about fascism are well-justified.
See: Post-Reconstruction such as the Wilmington insurrection
Followed by a 569-word hypothetical, which is then in turn followed by descriptions of other, narrowly-defined and unrelated types of immunity that have no bearing on the topic at hand.
It’s an interesting point if a person doesn’t know what qualified immunity as it is applied in non-hypothetical situations, today is.
[1][https://en.wikipedia.org/wiki/Qualified_immunity#:~:text=His....]
Also conspicuous that QI was introduced as a concept around the time police were being told they couldn't knock non-white heads in with impunity anymore.
I am not sure that civil trials are a great way to protect Constitutional rights. The outcome of an egregious civil rights lawsuit is that the plaintiff gets paid money that comes from the city (via taxes) and the police depart and involved officer are otherwise unaffected. The real winners in changing qualified immunity would not be the public or the Constitution, but rather trial lawyers.
High profile state and federal prosecutions of police officers who violate civil rights are probably a much bigger deterrent to police officers violating the Constitution, and that is completely unaffected by qualified immunity.
If you really want something that is burning a hole in the Constitution, it is Civil Forfeiture. That one goes directly against the Fourth Amendment protection against government seizure.
And whatever extent that higher-level prosecutions prove a deterrent (to say nothing of the fact that in many cases they may not have standing)… as long as minority families have to have The Talk with their kids, it is not a sufficient deterrent.
Having paths towards civil accountability is vital, but they are essentially nonexistent.
If you want to be appalled as well, watch the Court Cam stuff and look at what they do to people in front of judges no less.
Consequences, man. This is not too much to ask.
This cop should be in jail: https://youtu.be/pkmBbkvqi4w
So should this one: https://youtu.be/VG7NxaW-sdE
https://mappingpoliceviolence.org/
It's surprisingly hard to get people to understand that police shouldn't be killing guilty people either if they have the option not to. Like that dude robbing a store doesn't automatically mean he should be gunned down without trial when he's not currently pointing a gun at anyone let alone after he's in cuffs. ESPECIALLY when we know cops can make mistakes with regard to identity.
James Madison “won” though and no such provisions were included. Madison felt we owed perpetual deference to past achievers, which sounds pretty monarchic.
From the article: "The Supreme Court created qualified immunity out of thin air in 1967, just six years after the Court first recognized that people could sue police officers and other government officials for violating their constitutional rights."
Having said that, a new American revolution that abolishes the Constitution would also presumably, hopefully get rid of today's politicians too.
Before their revolutions, Cuba was a military dictatorship backed by the US, Russia and Iran monarchies (the latter also backed by the US). So the starting points were not great, to say the least.
> Saying the constitution is obsolete really shows almost no understanding of the document itself.
I have higher degrees in philosophy and political science, so I think I understand the document pretty well, thank you. Ironically, a lot of the US Constitution was actually cribbed from a British philosopher, John Locke, who wrote 100 years before the US Constitution, which is now almost 250 years old itself.
Imagine practicing medicine or science today based almost exclusively on 250 or 350 year old ideas.
Well, it's a spectrum. The OP refers to the American revolution: "We're quite the anomaly." But obviously the starting point here was a lot better than in Russia, Cuba, or Iran.
> Revolutions almost never turn out well from what I can see.
What would you say about America? Or England?
Democracy has to be created and established somehow.