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New Mexico is the second state to ban qualified immunity

innocenceproject.org

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Re: New Mexico is the second state to ban qualified immunity

#81

Post by thebradbain »

torstenvl wrote: post #55
adamsvystun wrote: post #49

Earlier quoted context omitted.

Isn't qualified immunity applies only to police? If not, then the solution should be to end qualified immunity for police only. There is a difference between health department inspector and police officer, no reason to apply the same standards in both cases.

> Isn't qualified immunity applies only to police No. > the solution should be to end qualified immunity for police only. There is a difference between health department inspector and police officer, no reason to apply the same standards in both cases. That makes no sense. A government official performing a government job because they are required to by the government should not then be ordered by the government's co…

> because they are required to

The government is not requiring cops to send innocent people to jail, kill extrajudicially, or otherwise ruin peoples’ lives simply because they felt like it. In fact, that’s the exact opposite of justice, which is actually their mandate.

> There’s no rational distinction between [police officers and health inspectors]

One has leeway to kill innocent people outside of the court system based on subjective characteristics (“I was scared”) with little consequence, the other checks a court-approved checklist and passes or fails based on an objective criteria.

> No same person would ever work in law enforcement if their kid’s college fund is subject to being raised because they did their jobs

Again, it is antithetical to their job to carry out injustice, and when people mess up their job bad enough, such a killing or framing an innocent person (intentionally or not), there should be consequences. Similar to how bad surgeons who have a clear pattern of killing their patients (intentionally or not) are taken out of operating rooms and medicinal license potentially revoked, or the corrupt lawyer who colludes with the other side in return for kickbacks is disbarred.

Unlike the overworked DMV employee who didn’t properly register someone in the system and wasted most of their day, when an overworked cop messes up, someone just lost a whole more time they’ll never get back — potentially a life’s worth.

Re: New Mexico is the second state to ban qualified immunity

#82

Post by [deleted] »

sumedh wrote: post #77
adgjlsfhk1 wrote: post #42

Earlier quoted context omitted.

Police unions are much worse than other public unions. If other public unions take illegal action, the police can arrest them. When the police union does something illegal, no one is going to do anything about it.

> When the police union does something illegal, no one is going to do anything about it. Cant the Feds step in?

[deleted]

Re: New Mexico is the second state to ban qualified immunity

#83

Post by mike_d »

bryanrasmussen wrote: post #33
adgjlsfhk1 wrote: post #28

Earlier quoted context omitted.

Step #1 is get rid of cop unions. They look out for the worst of the worst, and prevent anything from improving.

getting rid of unions is also a problem, maybe limit the powers of public service unions. They are allowed to work for pension increase, wages, vacation time, but not allowed to touch disciplinary situations?

Unions in public service are allowed to create de-facto rules and policies that would otherwise get lawmakers voted out or initiatives voted down.

MUNI is a dysfunctional mess because the Union has the power to shut down a public service if their every demand isn't met.

Re: New Mexico is the second state to ban qualified immunity

#84

Post by dragonwriter »

JumpCrisscross wrote: post #63
torstenvl wrote: post #55

Earlier quoted context omitted.

> Isn't qualified immunity applies only to police No. > the solution should be to end qualified immunity for police only. There is a difference between health department inspector and police officer, no reason to apply the same standards in both cases. That makes no sense. A government official performing a government job because they are required to by the government should not then be ordered by the government's co…

> government official performing a government job because they are required to by the government should not then be ordered by the government's court system to pay restitution for damages caused by the government's ordered action There is a lot of grey area in qualified immunity. Government officials actions are protected so long as they are legal. If someone knowingly orders an illegal action, qualified immunity no…

> There is a lot of grey area in qualified immunity.

Not particularly.

> Government actions are protected so long as they are legal.

Generally, actions which are legal are not subject to legal liability, you don’t need immunity when your action isn’t illegal.

Illegal government actions are often protected by governmental immunities, but that’s not the issue here.

Illegal individual actions by government agents related to their job duties may be covered by either absolute or qualified immunity, based on the rules applicable to each type of immunity.

> If someone orders an illegal action, they are no longer protected by being government agents because they weren’t lawfully acting in their capacities as one.

No, such an order could easily be covered by either absolute or qualified immunity. For instance, an illegal Presidential order is within the coverage of the President's absolute immunity. An order from an official not covered by or doing the kinds of duties subject to absolute immunity, which despite being illegal is not of a kind which a closely similar fact pattern has been definitively found to be illegal in the past, would fall within qualified immunity, generally.

> If someone knowingly follows an illegal order, they too bear the burden.

If they know or had constructive notice through an applicable ruling that the order was illegal, sure, provided absolute immunity doesn’t apply (note that “knowingly followed an illegal order” can mean “knowingly followed an order, which order factually was illegal whether or not that was known”.)

Re: New Mexico is the second state to ban qualified immunity

#85

Post by cdash »

coolspot wrote: post #17

I think that the Game theory suggests that cops will be less inclined to show up to a call or do anything to fight crime, because it could bring too much legal responsibility. Eat donuts, ignore the radio and you will be fine.

Eat donuts, ignore the radio and get fired. That is how it should be.

Re: New Mexico is the second state to ban qualified immunity

#86

Post by thaumasiotes »

tjs8rj wrote: post #79
barnaclejive wrote: post #62

Earlier quoted context omitted.

"without fear of personal liability" You see no issue with that, seriously?

To be clear: qualified immunity is about civil liability. It doesn’t protect from criminal liability. Qualified immunity isn’t the reason cops don’t go to jail for murder, because it doesn’t apply at all for criminal procedures

That would be fine if it were possible to criminally prosecute the cops.

But it isn't; only the government can do that, and they don't want to.

Re: New Mexico is the second state to ban qualified immunity

#87

Post by tomc1985 »

mike_d wrote: post #40

The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation. It applies to all parts of government. Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave yo…

Wait, are you sure? If someone is acting as an agent of an entity then the entity is who you sue

I am definitely not a lawyer or even good at "law" but that would just be insane if the truth is otherwise

Re: New Mexico is the second state to ban qualified immunity

#88

Post by reportt »

JumpCrisscross wrote: post #60
michaelbuckbee wrote: post #44

Earlier quoted context omitted.

One proposed tactic has been that either cops need to hold individual "malpractice" insurance (like doctors) or that settlements need to come out of the union retirement fund.

> cops need to hold individual "malpractice" insurance (like doctors) or that settlements need to come out of the union retirement fund The insurance idea is stupid. It will just end up being bought by the union, removing the individual incentive component, and added as a line item the next time pay negotiations come up.

But underwriters don't necessarily need to insure every officer, and not every officer will be insured the same. If they are deemed too risky, it doesn't matter if the union is backing their premiums or not -- if they don't have insurance, they can't work (or can't do fieldwork or something).

Re: New Mexico is the second state to ban qualified immunity

#89

Post by JumpCrisscross »

dragonwriter wrote: post #84
JumpCrisscross wrote: post #63

Earlier quoted context omitted.

> government official performing a government job because they are required to by the government should not then be ordered by the government's court system to pay restitution for damages caused by the government's ordered action There is a lot of grey area in qualified immunity. Government officials actions are protected so long as they are legal. If someone knowingly orders an illegal action, qualified immunity no…

> There is a lot of grey area in qualified immunity. Not particularly. > Government actions are protected so long as they are legal. Generally, actions which are legal are not subject to legal liability, you don’t need immunity when your action isn’t illegal. Illegal government actions are often protected by governmental immunities, but that’s not the issue here. Illegal individual actions by government agents relate…

> Not particularly

Legally, given the facts and circumstances, mostly agreed. (Though, hell, I think even Kagan and Scalia were complaining a few years ago about the circuits splitting on these questions.)

Practically, I still argue it is. I'm not going out on a limb in saying that most people, cops or not, don't have a running list of unlawful behaviors for which there is clear judicial precedent. Which means when they commit an act, there is ambiguity--reasonable ambiguity, given we're consulting a litany versus heuristic--with respect to its legality. On a legal level, this is true of any action. On a practical level, it's not. (And the argument against limitedly abolishing qualified immunity largely revolves around it not being.)

I've watched two law firms evaluating a specific case with respect to a hypothetical amendment to qualified immunity statute come to wildly different conclusions about how it would be interpreted by the courts. That is practically grey area, even if legally it's operating on a hard-bound checklist. (New York State law is also a mess in this particular respect.)

Colloquially, if given a set of facts and circumstances it cannot confidently predict how the courts would rule, where questions must be answered about extraordinary circumstances and whether this unlawful action was sufficiently close to that case, the law can be said to be ambiguous and grey.

(Note: not sure why you're being downvoted. It's a good comment. To a striking degree, it illustrates the root of this issue, politically--the spirit of the law deviates wildly from its practice.)

Re: New Mexico is the second state to ban qualified immunity

#90

Post by mike_d »

devwastaken wrote: post #80
mike_d wrote: post #40

The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation. It applies to all parts of government. Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave yo…

Qualified immunity was made up by courts, their legislating from the bench should have no merit, and therefore revoking qualified immunity is the right thing to do under checks and balances. We need a replacement, one written in legislation, that puts fixed narrow limits on how immunity applies. If you break the law - you should receive no protections. There is no excuse for enforcers of law to not know the law. This…

> Qualified immunity was made up by courts

That is how our whole system works. The first amendment for example doesn't have an explicit "yelling fire in a movie theatre" exemption, yet the courts have defined tests that determine if speech is protected.

> We need a replacement [...] If you break the law - you should receive no protections

That is exactly how it works today. Once you have been found guilty in a criminal court, you no longer have any protections against civil cases.

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