Hey, world, it's been a couple of years. I just haven't had much strike me strong enough to feel the NEED to blog.
Until Now.
So, for those who don't already know, I'm a Libertarian. Not full-on "Anarchy in the USA!!!" type, but I do believe government needs to back off and let us make our own decisions and experience the resulting consequences. As such, I follow some Libertarian and "Austrian School" economics sites. For the most part I agree with what they say, but every now and then I run across things like this:
Look, I get it. Law Enforcement's use of force is under a hell of a microscope in our society right now. Some of the cases have legitimately been bad uses of force, but it kinda looks like the majority have been perfectly good on the part of the Officer/Agent/Trooper/Deputy/whatever.
There are a bunch of smaller problems that are packed into the macro-level issue. I could easily address the news media's desire to make everything they report as melodramatic as possible, especially the negative things ("If it bleeds, it leads"). There are some fundamental social issues contributing to criminal violence (discrediting of impulse-control as an adult value, and its subsequent contribution to criminality, misinterpretations of the appropriate uses of violence, we could go on and on). What I want to address here is only those issues specifically listed in the post I posted the screen shot of above. That's ALL. I'm not going into any other facets of the issue, full stop.
I say that now, but I bet I end up going off on tangents a few times.
ANYWAY,
First and foremost: Qualified Immunity.
This term keeps getting thrown around in various media. "Repeal Qualified Immunity", "Police Officers are using Qualified Immunity to get away with excessive force", "Law Enforcement believes they can violate our rights and hide behind Qualified Immunity".
So...
What EXACTLY is "Qualified Immunity"?
Let's break it down, and then look at the actual legal definition.
First of all, "Qualified". In what universe is "Qualified" a synonym for "Blanket"? Not the one I live and work in. Being the cis-het Anglo male I am, I subscribe to racist, sexist, patriarchal concepts like "objectivity". In keeping with that, I'll look up the dictionary definition of "qualified".
Look closely at that bottom one: "Modified, LIMITED, OR RESTRICTED IN SOME WAY". In other words, there are qualifications that have to be met in order for something to be applicable.
I think you can already see where I'm going with this point, but I'm going to follow it anyway.
Now for "Immunity".
Again, we're looking at the last entry. Even better, Dictionary.com even adds the part about "...on certain conditions.", so it's...QUALIFIED? But I'm getting ahead of myself with that.
Ok, so "Qualified" explicitly indicates restrictions, and "Immunity", in the legal context, is pretty straight forward in that it's an exception to prosecution UNDER CERTAIN CONDITIONS
Now for "Qualified Immunity". For this one I'm going directly to Cornell Law School's website. I've gone to them a number of times to find legal definitions and specific statutes.
I strongly advise reading the entire article at the link I provided above. There are examples of judicial precedent that illustrate the concept well across a broad variety of positions, including police.
As provided in the first paragraph, public officials are still expected to face consequences for the irresponsible exercise of authority, but should be shielded "...when they perform their duties reasonably". I won't even go down the rabbit hold of what constitutes "reasonable".
So, "Qualified Immunity". When a Police Officer engages in their assigned duties in a manner consistent with training and policy, in congruence with law, they are protected from FRIVILLOUS suits. Under those circumstances, an Officer is immune from prosecution, and the burden falls on the agency itself. HOWEVER...if an Officer engages in their duties in a way that is inconsistent with policy and law, falls outside of their training, they're screwed.
Qualified Immunity is NOT Blanket Immunity. It is NOT “an absolute shield for law enforcement that has gutted the deterrent effect of the Fourth Amendment.”, as that quoted SCOTUS Justice should know if they weren't trying to score political points rather than interpret law.
This very immediate case of Derrick Chavin should illustrate the matter well (though it won't matter; there will still be calls to end Qualified Immunity because...politics). I wasn't on the jury, NONE OF US know all of the facts (despite what CNN and BLM are telling you), and it isn't my intent to get into the debate of Right/Wrong. All I'm saying HERE is that it seems rather obvious that Qualified Immunity didn't save the Officer. A jury determined that his actions were a primary contributor to the death of George Floyd, and he was found guilty. Qualified Immunity did NOT protect Mr. Chavin, as its detractors claim it would have, and for the very reasons I've already outlined.
This is one of the concepts that scares the ever-loving heck out of law enforcement personnel. Non-LE folks think the agency is going to protect the individual Officer no matter what, but those of us on the inside know that's far from the truth. Fall outside of policy even a minuscule fraction, and you'll be hung-out to dry, abandoned by the agency to fend for yourself. Law enforcement agencies aren't run by folks with a lot of street experience. They aren't commanded by men and women (or however they choose to identify) with scuffed boots and holster wear on their guns. Those in charge got there by pushing for promotion, having great paperwork, and being a good bureaucrat. What do bureaucrats do? Everything they can to reduce liability for the agency! Liability = money! Budgets are limited, and so are agency reputations. If the Bureaucratic Officer In Charge thinks one of their Officers has deviated from policy or law in any way, no matter how minor the infraction, that Officer will feel the full wrath of the Inspector General/IA/whatever, all the way to the Supreme Court if deemed necessary (which has happened a few times, in ways you likely aren't even aware of. Rabbit Hole).
So let's say we get rid of Qualified Immunity. Shortly thereafter an Officer does something, ANYTHING, that doesn't meet the current standards for Social Justice. Their strict adherence to policy, law, their training, none of it makes a lick of difference. The Court of Public Opinion has spoken, the Officer is now on trial.
I'll ask you this: Does it matter that the Officer did the right thing? Does it matter that they'll be cleared of criminal prosecution?
NO!
They're ruined!
They have now had to pay hundreds of thousands of dollars in legal fees just to not go to jail for doing the right thing. GoFundMe only helps to a point, and doesn't do a thing for one's professional reputation. That Officer is now a lightning rod in the eyes of future employers.
And they did everything right!
Let's look at another example: Emergency Medical Technicians. Do all of our patients live? Nope. Do we do everything humanly possible to make sure they live? Yup! Would that matter without Qualified Immunity? Nope.
Again, this isn't blanket immunity when someone screws up. If I were to exceed my scope-of-practice and perform an intervention that I'm not trained and approved for, I'm justifiably screwed. Hell, even if I did it correctly and the patient lived, I'd lose my license for exceeding my scope-of-practice. Yes, I could be punished for doing what was needed for my patient to have a positive outcome, because my actions would have exceeded my...wait for it...training and the policies governing how I execute my authority. What Qualified Immunity does for the EMT is protect them from FRIVILOUS lawsuits when they did everything right, and the outcome wasn't good. If I find a patient in a state of severe dehydration, experiencing rhabdomyolysis, and the resulting kidney failure, I'm going to do all I can to keep them alive so they can reach a higher level of care (a hospital's Emergency Department). I am certified to provide IV fluids, an intervention that is appropriate for this situation. I'm permitted to administer EXPIRED IV bags (within limits), for reasons I won't go into (chemistry, budget and supply, blah, blah). Let's say I administer IV fluids to said patient, running two bags into them while waiting for an air ambulance. Let's also say one of those bags was expired by a week. NOT a significant amount of time (expiration dates have a lot of leeway), and so perfectly safe.
Now let's say the patient dies after two weeks in the ICU. Everyone involved did absolutely everything they could, within their scope of practice, to save the patient. We are all covered by Qualified Immunity.
Now remove Qualified Immunity. The patient's family decides to sue everyone involved. I'm dragged into it, and my derriere is keelhauled because I used an IV bag that was expired by a week. Every expert involved knows what I did kept the patient alive, but I'm still in front of a jury of 7-11 cashiers and retired janitors trying to explain why the expired IV didn't kill the patient. How much do I have to pay in legal fees? How long am I out of work for this? Will I be acquitted, or go to jail?
Qualified Immunity saves my butt in this situation because I did everything within policy and law.
Funny how that works. Do the right thing, at the right time, for the right reason, and you'll be ok. Screw any of those up and you're up a creek.
I'd love to see politicians held accountable for their actions, but that'll never happen, and that is its own subject.
Moving on...
What are going to be the consequences of removing Qualified Immunity? It's already happening: many officers are retiring as quickly as possible, moving to other states, staying on the job without actually working for fear of frivolous accusations if they do anything, or simply quitting. A direct effect of that has been seen with the defunding efforts, as there are fewer patrols, fewer resources, and criminals know that they're less likely to be caught.
I believe Qualified Immunity will be removed. It's too political an issue. Legislators will find it easier to do that than take any substantial action, and they know they'll face no repercussions for the long-term effects. Hell, they'll likely be reelected for it, no matter the increases in violent crime.
More could be said on that, but I've beaten that dead horse a good bit at this point: Qualified Immunity is NOT utter, complete immunity from consequences when an Officer does something wrong. I would argue that politicians and the media are deliberately pushing an incorrect interpretation of it solely for political purposes and to stir-up more drama. No matter their reason, THEY won't feel the effects down the road, you and I will.
Moving on (again)...
"Ban dangerous police practices like no-knock warrants"
I love that the people who cry for this one have no tactical acumen whatsoever.
Perhaps we could RESTRICT no-knock warrants, but BAN them?
Why do they even exist? Well, from the perspective of Law Enforcement and prosecutors, it's pretty simple: We want the criminal suspect to have as little time as possible to destroy evidence and retrieve weapons. When all goes well, the entry team is in the building and controls everything fast enough to prevent violence (YES, that IS one of the intents) and seize evidence. A judge must sign-off on the arrest warrant's execution (agree that there is sufficient evidence to indicate that Officers must make an unannounced entry), so it's not like the team makes the decision on their own.
With that said, no-knock warrants have gone horribly bad enough times that they could use some revision. Incorrect addresses, over-zealous officers, excruciatingly-bad luck. Murphy's Law is always in effect.
So how about a look at revising them rather than banning them? No-knock warrants serve a vital purpose. Without them, more criminals are going to be released because evidence was destroyed, and more people (Officers and criminals both) will be injured or killed because criminals weren't controlled quickly.
Next: "Push for better de-escalation and use-of-force training".
Well, y'all already have that. Hell, our most recent use-of-force refresher was directly taken from a marriage counseling handbook. You think I'm exaggerating? It wasn't about policy, law, ethics, nada. It was about "seeing the situation from the other person's perspective".
I won't deny that has its place, but not in a use-of-force situation. It's necessary in the lead-up, to try to avoid having to use force, but once the bad guy decides they want to throw-down, I'm not going to see a damn thing from their perspective. I'm going to do all I can to stop the fight as quickly as possible.
De-escalation is kinda touchy. When done right, by the right person, in the right circumstances, with the right suspect, it works out wonderfully. Unfortunately it isn't a perfect science, and isn't always effective. (damn, that one has a lot of pop-ups. Sorry). No matter how much a bystander wants law enforcement personnel to calm someone down, it simply isn't always possible. There will ALWAYS be the necessity to use some level of violence against violent criminals. Further, cameras won't see many of the things the Officer did, and so won't provide sufficient evidence. Law Enforcement is, by its very nature, reactionary. If an Officer is facing-off with a suspect, the Officer is watching that suspect's body language, listening to what they're saying, trying to predict what the suspect is going to do next so that the suspect's violent behavior can be stopped quickly. We don't have to wait until the gun is pointed at us, we just have to determine if the suspect is serious, and look for the minute movements that indicate they're going to do something in the next couple of seconds. I can't find a link for it, but there is a video shown in training in which a suspect is leaning against a wall, with a revolver pointed down at his side. Officers are trying to talk him into surrendering, when suddenly one of the cops shoots the guy. There was a huge outcry until the news footage was closely examined to prove that the suspect had cocked the hammer on the revolver. The Officer interpreted that as an indicator of imminent violence, and did what was necessary to stop it. The Officer was REACTING to what the suspect did. All the while, the other Officer on-scene was trying to talk the guy down.
De-escalation is great, when it works. Training for it is ok, but not a magic wand. You can saturate every Officer/Agent/Trooper/Deputy/Etc in all the marriage counseling handbooks you want, and some suspects will still refuse to de-escalate. Verbal Judo is awesome, when we have a chance to use it. When the suspect is amenable to de-escalation. However, when the suspect decides they want to fight no matter what the Officer does, then what? Please explain to me how to de-escalate someone shooting at you, attacking you with a knife, a baseball bat...how do we do that without reciprocal violence? Magic nets that wrap the suspect up, preventing them from further violence? Sounds cool. Perhaps Doctor Strange can lend us his cape for that.
In one of the conflict management classes I taught at the academy, we specifically qualify the material by saying it won't always work. Try to avoid violence. Do your reasonable best to talk the suspect down. While you're doing that, be ready to use violence in reaction to what the suspect does. If they take an action that indicates they're going to initiate violence, stop them as quickly as possible.
None of that will ever be enough for the anti-police crowd. That side of the socio-political spectrum wants to believe that there are ways to talk anyone down, that everyone can be dissuaded from physical violence, or if not, then the Officers who are wounded or killed "signed up for it".
No, we didn't. We signed up to protect society. Well, those of us who are excessively idealistic did. We can't do that if we're dead or injured.
On to the last point, and here I'll actually agree:
"Stop criminalizing EVERYTHING"
Holy crap, people, when are you going to get it through your heads that we don't actually NEED all of these laws. I'd love for legislators to have to do a calculation for how many people will be killed in the enforcement of a law, and articulate that IN the wording of the statute. Every law passed has the potential to get someone killed for not abiding by it. There's a meme somewhere (I couldn't find it today) that says all legislation should end with "...or we will kill you".
Every time you want a law governing soda straws, rain water collection, neighborhood noise curfews, cigarette taxes, everything, you are empowering someone to enforce those laws. In order to enforce them, those Officers must be equipped to engage in the use of some level of defensive force. Further, you are criminalizing not only the behavior, the action, but making a previously-law-abiding demographic into criminals. How many of them have hurt anyone? Likely very few, but now they're subject to law enforcement use of force to stop them.
Has someone smuggling cigarettes violated a law? Certainly. Have they caused harm? Only to the tax revenues of the state they smuggled the cigarettes into?
Granted, often their profit goes to fund larger criminal activities, but IF THE CIGARETTE TAX DIDN'T EXIST IN THE FIRST PLACE, THERE WOULDN'T BE A PROFIT TO BE MADE!
Obviously the stated (bullshit) intent of deterring smoking didn't work or people wouldn't be looking for cheaper sources of cigarettes, so that excuse to legislate is out the window. Now we have the problem of potential violence with the enforcement of the laws relating to cigarette smuggling. Every tax statute can be summarized with "Pay us or we'll use violence to force you to pay us". Even without firearms (as some say taking guns away from police would somehow solve the issue), police would still have to use some kind of force in the enforcement of laws. All it takes is one cigarette smuggler saying "screw you", and now force is being used. Someone gets hurt, maybe killed. Why? Because one state had a higher tax on cigarettes than another.
But, as I addressed previously, somewhere (I couldn't find it, but I know I've addressed it elsewhere), I strongly believe legislators fall into the trap of the Law of The instrument, or "Maslow's Hammer".
The only tool they have is law, so they assume everything has to be legislated. We, the collective voting public, fall into the same trap. Don't like the neighbors having loud parties? Have a local ordinance passed instituting a restriction on noise levels and related curfews. "There should be a law" is the old saying, and I say
No!
NO!
Sometimes law is the wrong instrument to apply to a problem. Often it is applied incorrectly; the wrong thing is legislated.
Instead, we should make as few laws as absolutely necessary. Those laws that are necessary should be considered as long as possible. Future consequences should be taken into account. Secondary and tertiary effects should be considered. "We Want Change NOW" sounds wonderful, and feels empowering, but the legislative process should be drawn-out, allowing passions to disperse so that cooler heads are writing the statutes.
Why criminalize something? Is it REALLY necessary? Murder is already illegal, but now we're going to make it illegal-er because some aspect of it ignites social passions? A certain tool was used, so that makes it worse? Killing someone with a car is ok, but with a gun isn't?
Rabbit Hole, Rick. Back on track.
I agree that we need to stop criminalizing every stupid thing that comes along. Someone wants to collect rain water? Ok, so what. It's not like that water somehow disappears from the universe, never to be seen again. Tax cigarettes? Great, until there's a shoot-out with people smuggling cigarettes across state lines for a profit.
Criminalizing a behavior doesn't make it go away, it just drives it underground. You want it to be illegal to 3D-print a firearm? IT ALREADY IS. How is making a new law going to stop anyone from doing it in their basement and selling the end product to gangs? It won't! Want to end Qualified Immunity for police? Do you even understand what Qualified Immunity actually IS? (no, you don't, but feel free to continue with the illusion that you do, since it seems to make you feel empowered).
If fewer behaviors are criminalized, there will be fewer encounters with law enforcement. Fewer encounters means fewer instances in which violence will erupt. Police don't simply stop you for no reason (despite what your cousin says). They have to see some action that violates a law that they're expected to enforce. Is it a stupid law? Maybe! If so, why was it passed in the first place? Why was it kept?
I'd love to see legislators held accountable for the destructive effects of their actions, but that'll never happen. Damn shame, too.
All police do is enforce laws. You want to reduce encounters with them? Reduce the number of laws we're subjected to. Make the act of creating laws more difficult by requiring deeper analysis of the potential effects. Require longer time periods for debate. Stop electing legislators based on the number of laws they've passed, as though that's some kind of trophy list. And hold them accountable when things go bad! In the end, EVERY law enforcement use of force started with a law that had to be enforce. Was it actually worth it?
Instead, how about we start encouraging mature behavior. Rather than impassioned outbursts, let's have politicians who behave in a reserved manner, who encourage interpersonal respect and well-considered behavior. How about WE, the voting collective, stop electing the lesser of the evils, and stop tolerating horrible behavior on the part of our elected officials, and set the example. How about we discourage our children from impulsive behavior. No more "follow your heart" and "do what feels right", but instead consider the ramifications of one's behavior.
No, that's all too difficult. Instead we're going to continue to outsource responsibility, demand our politicians pass as many laws as possible to regulate behavior, then get angry when the enforcement of those laws results in injury and death. We're going to criminalize everything possible, then neuter those required to enforce the laws, then get angry when criminal violence expands. In response, more laws will be passed, necessitating more law enforcement, leading to more violent encounters with police. All because we, as a society, insist on using Maslow's Legislation to control everyone around us.
