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[return to "As Qualified Immunity Takes Center Stage, More Delay from SCOTUS"]
1. comman+9m[view] [source] 2020-06-01 17:39:51
>>mnm1+(OP)
I'm curious - it's obvious what abuses of qualified immunity are driving this, but the law must have been originally put in place for a reason. Are there any examples where a police officer was shielded from prosecution for something that, if you or I did it would definitely be a crime, but that a reasonable person would say, "yes, this is a good application of qualified immunity"?
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2. Cobras+Sw[view] [source] 2020-06-01 18:29:29
>>comman+9m
The idea is that you can sue police officers who violate your Constitutional rights under color of law. Maybe you take a photo of a police officer sleeping on the job, and they take your camera and smash it. They've just violated your Constitutional rights, and you can sue them to recover your damages.

But police arrest a lot of people, and they aren't experts on the law. They will get things wrong frequently. They can't be expected to make the correct call every time, but they also can't do the job if the average officer is regularly sued. So the courts came up with the "reasonable" standard. If the officer took away your Constitutional rights, but it was reasonable for them to think it'd be okay, for example if it was a fuzzy legal area or an obscure point of law (what if there's a split court on whether photography can be prohibited in subways?), then you can't sue them. In effect, you can't sue a police officer for acting like a "reasonable" police officer.

So far so good. Police can keep policing without also being lawyers, but people can still sue police officers who are clearly violating their rights. In theory.

But then in 1982 with Harlow v. Fitzgerald, the Supreme Court had an issue with Nixon's aides and whether they deserved absolute or qualified immunity, and they came up with tests. Although it wasn't the focus of the case, the decision happened to grant that qualified immunity applied to every government official couldn't be personally liable for damage unless they were violating a "clearly established" right.

So now police officers were protected by a different standard than a vague "is it reasonable" test. Now the test becomes "has it been clearly established that this is a right." This isn't awful in theory, but in practice the courts have decided that "clearly established" means "has this exact thing come up before and has a court decided that this is or is not constitutional/legal?" This leads to truly ridiculous scenarios, like a judge saying "okay, sure, there have been cases where we decided that you can't use deadly force against unarmed people fleeing by car, but we haven't decided that this is the case if the car is near a highway, so that hasn't been 'clearly established.'"

Anyway, that's the state of things. There are certainly plenty of scenarios where the previous standards of "reasonable" and "good faith" would seem perfectly legitimate. There are oodles of situations which requires a tricky multi-part test undertaken by a judge, and for such cases, a police officer shouldn't be sued for getting it a bit wrong. So the basic concept isn't fundamentally ridiculous, but the "clearly established" test for qualified immunity is.

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3. SkyBel+YR[view] [source] 2020-06-01 20:18:13
>>Cobras+Sw
>But police arrest a lot of people, and they aren't experts on the law. They will get things wrong frequently. They can't be expected to make the correct call every time, but they also can't do the job if the average officer is regularly sued.

That seems so very one sided reasoning when the same logic is not applied to the rest of us. When we interact with police, they get to break the law but we must perfectly follow the law or face charges. There is no equality in that arrangement.

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4. Cobras+kV[view] [source] 2020-06-01 20:36:05
>>SkyBel+YR
Of course there's no equality to that arrangement. Police officers are just professionals who handle a lot of cases with no skin in the game (except their own safety). If your tax agent doesn't know about some loophole and doesn't save you some money, they are not automatically liable for paying you the difference. If your doctor doesn't know about a brand new life-saving procedure and you die, the doctor is not also killed to make it even. A police officer who arrests you with a reasonable belief that you've done something illegal but who is mistaken due to some complicated detail of case law should not in turn be convicted of false imprisonment.

But the flip side is also true. Just as a doctor can absolutely be arrested for intentionally harming a patient, a police officer who arrests you for clearly wrong reasons should absolutely be sued or prosecuted for their crime. But describing the line between those two cases is hard.

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5. SkyBel+rl3[view] [source] 2020-06-02 16:22:00
>>Cobras+kV
There is a core difference in these. Two really. Consent and violence. A police doing their job is often acting against your consent and invoking violence. Doctors don't. Well cutting you might be violent, but they are sure to get your consent and it is for your well being, to say nothing of the difference in training requirements before a doctor is allowed to touch you with a scalpel. And then they have to carry malpractice insurance while cops do not have to do similar.

When a police officer arrests you, they are doing something to you that in any other situation would be a major crime and it is not done in your best interest. This significantly changes the reasoning and, especially in light of recent events, needs a significant improvement in how it is currently legally treated.

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