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Federal Judge Urges Congress And The Supreme Court To Abolish Qualified Immunity
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https://www.forbes.com/sites/nicksibilla/2022/10/27/federal-judge-urges-congress-and-the-supreme-court-to-abolish-qualified-immunity/?sh=6c8363a914d6


Quote:In a remarkable dissent, a federal appellate court judge called for the abolition of qualified immunity, which he derided as an “ill-founded, court-made doctrine.” Under qualified immunity, police officers and all other government workers cannot be sued for violating the Constitution, unless they infringed on a person’s “clearly established” rights. That requires finding almost precisely identical cases as precedent, which in turn creates an incredibly high bar for victims to clear.

“Qualified immunity is the law, and, unless and until the Supreme Court, Congress, or both alter that doctrine, I am bound by it,” noted Guido Calabresi, a senior judge on the U.S. Second Circuit Court of Appeals and former dean of Yale Law School. Nevertheless, he forcefully argued in an appendix “why the doctrine of qualified immunity—misbegotten and misguided—should go.”

Defenders of qualified immunity often claim it’s necessary to protect individual officers from financial ruin. But as Judge Calabresi rightly pointed out, “qualified immunity is largely irrelevant to officers’ individual financial liability” since “indemnification is the general rule, and officers rarely pay anything.” The judge cited an extensive survey by UCLA Law Professor Joanna Schwartz, which found that in 99.59% of civil rights cases, officers didn’t have to pay a dime in damages.

Given that qualified immunity unjustly denies compensation for victims, Judge Calabresi proposed “a long-recognized better solution: formally make the employer the defendant and the only one who pays.” After all, “the employer is better positioned to prevent future misconduct and mistakes and to ensure violations of constitutional rights do not go uncompensated,” he added.

Not only is employer liability “the rule in most every other area of tort law,” it’s becoming a reality for law enforcement agencies as well. In a groundbreaking reform based on model legislation by the Institute for Justice, New Mexico banned qualified immunity for state constitutional claims and squarely placed the burden to pay out claims on the government employer.

As a result, agencies in the Land of Enchantment are now increasingly incentivized to reduce liability costs, or otherwise face punishingly high insurance rates. For instance, the Washington Post recently reported that New Mexico’s largest risk pool, “which provides coverage for one-third of the state’s police officers,” hired a de-escalation instructor “after private insurance rates climbed by more than 60 percent.”

The case that prompted Calabresi’s dissent centered around William McKinney, who was beaten and tased by officers and mangled by a police dog while in a jail cell in Middletown, Connecticut. As Judge Calabresi recounted, “McKinney was locked alone in a cell in department-issued pajamas; there was no risk that McKinney might escape or carry out any threats against officers.” After he was attacked, McKinney suffered a scalp laceration and two large leg wounds which required staples and sutures.

To vindicate his rights, McKinney sued the officers who deployed the K-9 unit, arguing their actions inflicted excessive force in violation of the Fourth Amendment. However, the Second Circuit dismissed the lawsuit, declaring that McKinney’s rights weren’t “clearly established” at the time of the attack.

“While the police may violate clearly established law by initiating significant force against a suspect who is only passively resisting,” the court argued, “McKinney has not shown that it is a violation of clearly established law for the police to ensure that a violent suspect has been secured before withdrawing the significant force required to subdue the suspect.”
In response, Judge Calabresi asserted that the majority’s “distinction finds no place in precedent.” “The discussion should center on the real issue, on when we want a city or state to pay an injured victim,” Judge Calabresi concluded, “and not on the false issue of when officer liability is appropriate.”


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Something to think about.  Too many citizens have no recourse when their lives/property are destroyed.
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