Stating the Obvious

Oscar Gordon

A Navy Turbine Tech who learned to spin wrenches on old cars, Oscar has since been trained as an Engineer & Software Developer & now writes tools for other engineers. When not in his shop or at work, he can be found spending time with his family, gardening, hiking, kayaking, gaming, or whatever strikes his fancy & fits in the budget.

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65 Responses

  1. DensityDuck says:

    I mean, we could go back to the original version, before the Supreme Court decided that protecting the office of the President was more important than the rights of citizens harmed by that President’s actions…Report

  2. Chip Daniels says:

    How do we solve this?
    Step 1: Re-establish the principle that all American citizens are equally deserving of respect and dignity.

    Because what is also obvious is that the victims in almost all these cases are not people like Jeffrey Epstein or Paul Manafort or any other wealthy privileged group, or even the dominant ethnic and cultural group.

    There is a direct line from a culture of animosity towards people of color and poor people, and the way the police and legal system treats these people.

    So long as we have a hierarchical society in which some people matter and some people don’t, there will be an endless number of ways in which the legal system justifies this.Report

    • Oscar Gordon in reply to Chip Daniels says:

      Just to clarify, the injured party is white. So this is less about those people not being worthy, but rather that the police and the governments that employ them are more worthy. Taken that slope down, the good of the many (the taxpayers of the community that hired the officer) outweighs the good of the one (the kid forever maimed). Qualified immunity is less about protecting police than it is about protecting the treasury. The fact that police officers also benefit is just a bonus for the police.Report

      • Chip Daniels in reply to Oscar Gordon says:

        Our society has a lot of different strata to the hierarchy of worth and white people are sorted out from top to bottom just like everyone else.

        Its important to keep this in mind, because it isn’t just a matter of dividing it between Government Agents and Everyone Else.

        Technically these people have every bit as much legal protection against the police as Jeffrey Epstein, but then again so did Tamir Rice.

        So turning QI into some technical matter where we just need to tinker with the levers and switches of law ignores that the legal structure is not the problem.

        The problem is that the legal structures is manned by humans who are not blind to race or class. They apply a different treatment and make different decisions based on where someone stands in the social hierarchy.Report

        • Oscar Gordon in reply to Chip Daniels says:

          Ask yourself this, if the cop had shot Baron Trump by accident, do you think the court would have ruled differently? How far up the hierarchy do you go before you reach a different conclusion.

          Hell, cops shoot each other by mistake and the system still protects the shooter, and thus the treasury, above all else.Report

          • Chip Daniels in reply to Oscar Gordon says:

            The fact that you need to phrase it as a hypothetical proves the point.

            If we made a list of the hierarchical groups in America from top to bottom, and plotted the cases of unjust police behavior, we would see the cases clustered towards the bottom of the hierarchy.

            What we discovered after Ferguson is that it isn’t just shootings.

            There is a widespread and interlocking pattern of aggressive policing, predatory fines and fees, restrictive laws applied in an uneven way that all interlock to make the lives of those at the lower end of the spectrum less free than those at the top.

            And it all stems from the public acceptance of a worldview where Baron Trump has one value, and Tamir Rice another.Report

            • Oscar Gordon in reply to Chip Daniels says:

              Sure, everything you say is true, and utterly irrelevant from the issue of QI. QI isn’t about dignity, it’s about protecting the polity from the misbehavior of it’s agents.

              The fact that those agents misbehavior is often directed against groups those agents disdain and don’t fear is an unintended consequence.Report

        • InMD in reply to Chip Daniels says:

          This analysis is detached from reality. The QI issue as it applies to police shootings could be greatly improved at the state legislative level.

          As Oscar noted, the basic idea of immunity for official actions is based on a host of public policy concerns, most of which have nothing to do with police shootings, and many of which are quite legitimate. Taking it seriously and doing some good means digging into the details, not unproductive discussions about who is or isn’t deemed to have ‘dignity’ or some other nebulous trait.Report

          • Chip Daniels in reply to InMD says:

            How would you respond to someone who asserts that there is no problem with police shootings, and those who get shot probably deserve it?

            For example, Chip Daniels has never experienced any problem police officers.
            Every officer I have ever encountered has behaved with total professionalism and courtesy.

            So really, these stories about out of control officers are detached from reality.

            Unless of course, different people experience encounters with police differently.Report

            • InMD in reply to Chip Daniels says:

              I’d use situations like this (and many others) to explain why they’re wrong, dangerous, and how bad public policy enables them.

              Obviously ymmv but I’ve actually had considerable success in at least provoking some thought on the subject by people who are not normally sympathetic to any criticism of the authorities.Report

            • Oscar Gordon in reply to Chip Daniels says:

              So what? How does that influence the courts approach to QI? Are you saying that the courts and legislatures maintain the current status quo because the bulk of the people involved in police abuse of power are those whom the courts view as undeserving of dignity?Report

              • Chip Daniels in reply to Oscar Gordon says:


              • Oscar Gordon in reply to Chip Daniels says:

                Then you have to show your work. Show me a case where the police harmed a favored person and then rolled over on the officer and exposed themselves to legal liability, or where the courts rejected the officer claim of QI because the person harmed was a favored demographic.Report

              • Jaybird in reply to Oscar Gordon says:

                It takes Rampart-levels of corruption to get QI to not apply.

                In practice.Report

              • Chip Daniels in reply to Oscar Gordon says:

                How big do you suppose the data set is, of “officers harming a favored person”?

                QI only really becomes an issue when the case is egregious enough to be litigated.

                So in order to build this case, we would have to find a sample of cops shooting say, Ivy League college students, or smashing in the door of a bank and trashing the place.

                It almost never, ever happens. Which is the point here.

                I think its bizarre that you are making this argument in the aftermath of the Epstein case where the police did arrest a favored person, and the courts did prosecute him, but at every step, used their discretion to let him off.

                Or do you think this was a freakish anomaly?Report

              • Oscar Gordon in reply to Chip Daniels says:

                Let’s say you are right, this is about keeping certain demographics down.

                Please explain to me why I should place any trust or faith in these systems?

                Or, perhaps more salient, how can you possibly expect anyone in the affected demographics to trust the system, any part of the system. How can you vote for people who want to expand the ability of that system to affect the lives of people, knowing that the system can be just as harmful through inaction as it can through action, and yet none of it’s agents can ever realistically be held to account for discriminating against others?

                You run smack into the whole, “the system works great, as long as the right kinds of people are running it”.

                Or, you can just decide that the way we do QI is flawed, it needs to be dialed back such that it’s scope is much more limited, and by doing so, those who are most affected by the current excesses will have greater opportunity to seek justice. And we can dispense with trying to change people ‘for the better’ who have no incentive to change.Report

              • Chip Daniels in reply to Oscar Gordon says:

                On my side of the aisle, this is called the “class not race” debate, where injustice is assumed to be the inevitable outcome of structures, and if we just rejigger the structure, justice will be the outcome.

                The other side sees the way individual discretion is always a part of any system, and the individual biases and group hatreds inevitably warp the outcome.

                The support for the latter view comes from empirical data like where a cop lets Chip Daniels off with a warning, but arrests a black kid.

                In this example, yes the system does work splendidly, when the right people are running it.

                Or to look at your suggestion-

                Who is this “we” that would decide that QI is flawed? Who are the various “we” who would fire corrupt cops, or prosecute them?

                The same “we” that just yesterday decided that the cops who killed Eric Garner did nothing wrong?Report

              • Oscar Gordon in reply to Chip Daniels says:

                ‘We’ didn’t do anything. At the very least, ‘we’ decided that protecting the careers of cops, and the contents of the treasury was worth the occasional bad act that we otherwise would not tolerate.

                Let me put it this way, what is more likely:

                1) A critical mass of the voting public decided that it’s a good idea to allow agents of the government to oppress the lower SES, to keep them in line. And they continue to be just fine with that (the occasional broken egg of the favored SES aside).


                2) A critical mass of the voting public fears the end result of lawsuits stemming from public agent bad behavior, and took action to prevent such bleeding of the treasury. And if it has an unintended consequence of impacting the lower SES more harshly, that’s unfortunate but acceptable.Report

              • greginak in reply to Oscar Gordon says:

                Indeed we didn’t start the fire.Report

              • JoeSal in reply to greginak says:

                When you demand a social construct, you built the fire, regardless of what Billy wants to sing about it.Report

              • Chip Daniels in reply to Oscar Gordon says:

                Either scenario points back to my observation that in even the worst repressive regimes, there is a large group of people who never feel any oppression.

                Unjust regimes never oppress everyone equally, because that would be stupid.

                They always favor one group over another, and build a culture of hostility of the outgroup which blocks the favored group from forming an alliance with the oppressed.

                Changing the structure without changing the culture is difficult since it is always the favored group that controls the apparatus of the structure; in the absence of any sort of solidarity with the outgroup, there isn’t any reason for the favored group to do such a thing.Report

              • Oscar Gordon in reply to Chip Daniels says:

                My position is, if the culture is a side effect, changing the culture won’t get you were you want to go.

                If the law is created to protect the treasury, getting people to feel solidarity and accept the dignity of oppressive demographics will not make people less concerned with protecting the treasury.

                So you need to draw the line from solidarity to reforming QI.Report

    • Mike Dwyer in reply to Chip Daniels says:

      Chip, I love ya man, I really do, but geez. You are SO QUICK to jump to the POC talking points. It doesn’t apply to this conversation at all. You’re just making assumptions and jumping to conclusions because of your priors. Not every…single…conversation…has to be about race.Report

  3. greginak says:

    The way QI is used is a major problem. There needs to be some sort of Immunity for cops and judges and such. Full disclosure i have semi judicial immunity in my job. If i didn’t no one would ever do it if we could be sued by every disgruntled client. So there is a reason for some it. It seems like the way “reasonable person” is used is the problem. Cops should be held to a high standard. To much of copping now is based on paranoia and displays of power and guns. They are allowed to just say they feared which justifies all. Reasonable needs to mean something more like did the do everything they could to deescalate, not use force, give the benefit of the doubt to the citizen, which isn’t how to many cops do their jobs.Report

  4. Jaybird says:

    The problem is one where the question is “should cops be fired if they don’t do everything perfectly without making a single mistake?” has an obvious answer. (I mean, I made a handful of mistakes at my job yesterday… printing out the wrong document, writing a document and putting the wrong part number in a particular field because I used the manufacturer’s part number rather than the internal tracking part number (which is, inexplicably, different), and that sort of thing).

    Little errors that, if they make it to the end of the process, are big problems… but that’s why we have peer review and recycling boxes.

    I mean, how many mistakes did *YOU* make yesterday?

    Anyway, I have no problem with police filling out the wrong form. Pobody’s Nerfect.

    It’s when they shoot the wrong person that they should have the book thrown at them. They’re citizens, just like us. They don’t get to shoot people.Report

    • PD Shaw in reply to Jaybird says:

      There was an undeveloped Jaybird issue in this case.

      When the person to be arrested, entered the yard where the children were playing, the officers ordered the children to lie on the ground face down while they affected the arrest. This is the kind of situation in which “duty to protect” claims have arisen, so that if any of the children were ultimately attacked and wounded by the dog, one can imagine a lawsuit in which the officers, having taken affirmative steps to limit the children’s freedom, would have a duty to protect them from a foreseeable threat of a dog attack.

      This possibility isn’t discussed in the opinion, presumably because the dog didn’t attack.Report

  5. Philip H says:

    This is the kind of stuff that gives judges, lawyers AND cops bad reputations. If the dog wasn’t a threat why was the officer’s initial reaction to shoot it? What if the child had been killed? What if the dog and been killed? What if the officer had hit a child each time he fired? And is this yokel still wearing a badge?

    Sorry but “Fear for your life” isn’t a license to shoot anything. And really – unless it was a 150 lb plus dog of some kind there’s no reason to fear for your life. That’s just petty cowardice masquerading as something else.Report

    • Oscar Gordon in reply to Philip H says:

      Unless it was acting aggressively, it wasn’t a threat. Cops are supposed to be trained in threat recognition, and apparently threat recognition these days is, “It’s breathing! It’s a threat!”Report

  6. PD Shaw says:

    Reason isn’t representing the case well. The court did not find as a “fact” that “no one appeared threatened by [the dog].” I think it’s fair to say that the majority disagreed.(*) There are some burden-shifting issues here, but basically the majority and the dissent are operating from different factual frameworks.

    But the main point is that it’s not clear that the Fourth Amendment protection against unreasonable searches and seizures was intended to protect innocent bystanders to an arrest, as opposed to the person being arrested. There appear to be several court cases suggesting it does not, so it may be that even without qualified immunity, the Court might rule the same.

    (*) Majority Opinion at FN18: “There are no allegations of actual fact indicating that the dog was non-threatening.”Report

    • Jaybird in reply to PD Shaw says:

      Presumption of innocence is for humans.Report

    • Oscar Gordon in reply to PD Shaw says:

      Unless the officer did not have a chemical deterrent on his belt, he was being reckless. The courts are also remarkable blase regarding the risk to innocent bystanders when officers discharge their firearms. Again, had he been a civilian and he caused that harm without clear evidence the dog was threatening, he’d be up on charges.Report

      • George Turner in reply to Oscar Gordon says:

        Many dogs defend their families against strangers, even inappropriately. Postmen are a famous example because every day they trespass on the dog’s territory. Yet we generally don’t let postmen open up on them. My neighbor was a postman and she was bitten several times.

        I think most of our police problems stem from expecting smart decisions from people who just aren’t smart, and who sit around convincing each other that it’s okay to shoot dogs, kids, and whatever else because “that’s the job”.

        Cities could hand a gun and a uniform to schizophrenics or people with Down’s syndrome, but who should really be liable for the chaos that ensues? But unfortunately, the mayor and police chief insist that they had nothing to do with what happened, deeply regret the event, and will only re-assign the officer to desk duty out of an “abundance of caution.”Report

      • PD Shaw in reply to Oscar Gordon says:

        What the Court was doing was following a long-standing rule that plaintiffs have to allege facts in the complaint in order for them to be considered by the Court. So the Plaintiff needs to allege that the officer had a chemical deterrent, that the dog was a small toy poodle, that it was missing one of its legs, that it was walking slowly towards its owner, that it was muzzled or on a chain, or that it was not barking or growling, or whatever facts indicate the dog was non-threatening.

        My beef is with the Reason article giving the impression that it was undisputed that the dog didn’t pose a threat to anyone.Report

        • DensityDuck in reply to PD Shaw says:

          “[The Court] was following a long-standing rule that plaintiffs have to allege facts in the complaint in order for them to be considered by the Court.”

          So it’s less “undisputed that the dog didn’t pose a threat to anyone” and more “well technically nobody presented evidence at the trial to support a formal argument that the dog didn’t pose a threat to anyone so therefore we can’t formally say that the dog didn’t pose a threat”, which is the kind of statement that makes people imagine lawyers being eaten by dinosaurs.Report

    • InMD in reply to PD Shaw says:

      I’d be curious to understand how that was established. Note the dissent:

      ‘Because no competent officer would fire his weapon in the direction
      of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers.’

      Facts like these is why the QI framework needs to be revisited. We aren’t talking about excusing the municipal trash truck driver rear ending someone or the city engineer who designed a bad intersection facing personal liability. The guy walked onto private property, seized a bunch of people with a right to be there, and shot one for no reason. There will always be close calls but this level of recklessness seems well outside of why the doctrine and various related statutes exist.Report

      • PD Shaw in reply to InMD says:

        Factual disputes:
        1. The majority and dissent disagree about what is a fact and what is a conclusion.
        2. The dissent also makes additional inferences, from what it believes are facts and what the majority states are conclusions.
        3. Both the majority and the dissent agree with the conclusion that the injury was accidental.

        Legal disputes:
        1. There does not appear to be any legal precedent for finding a Fourth Amendment violation when an innocent bystander is accidentally injured.
        2. The dissent would find based upon the specific facts of this case that the conduct was so reckless as to be exempt from the need for precedent.
        3. The majority does not find that there was a Constitutional violation, so this is not a case in which a violation is found, but qualified immunity protects against new pronouncements.
        3. The majority obviously disagrees with the dissent’s facts, but goes further in pointing to Court decisions in other circuits Circuits and Supreme Court dicta, where no Fourth Amendment violation occurs when an innocent bystander is accidentally injured.

        So, while the majority ultimately rules that the officer enjoys qualified immunity, the most pointed arguments they are making would be that this class of issues is not within the scope of the Fourth Amendment. If that is true, then qualified immunity would be irrelevant.Report

        • InMD in reply to PD Shaw says:

          1 is the seeming Catch-22 in the way the law is interpreted that drives people bananas and IMO is what makes the law an ass in a lot of these cases that get attention.

          4 is what I’d read if only I had the time. I can envision situations where it would make sense for QI to protect an officer from liability for injuring a bystander but total agnosticism to the facts doesn’t make sense. Wandering into someone’s yard in pursuit of a suspect then hitting the owner’s kid while shooting at their dog is not the same as, say, shooting a bystander while returning fire at an active shooter.Report

          • PD Shaw in reply to InMD says:

            My general view on QI is that I believe judges will be more restrictive in finding violations of Constitutional rights retrospectively than prospectively. I don’t think this is simply personal cynicism. I’ve been told by a judge that if he knew what I was going to do with a finding in a judgment he entered, he would not have entered it. Not that he changed his mind about the merits; just that he had come to a fuller realization of the consequences.Report

            • InMD in reply to PD Shaw says:

              Making it a constitutional issue to begin with IMO has a lot of drawbacks. Obviously many of these outcomes strike me as very wrong but I understand why judges are hesitant about constitutional holdings. In most contexts I think that inclination is probably the right one.

              The problem is that the standard renders a 1983 woefully insufficient, especially when we live in a society that doesn’t guarantee much of a safety net for people horribly injured. And that’s without even getting into the accountability issue for the officers themselves who do stuff like this then get sent back off into the world.Report

    • DensityDuck in reply to PD Shaw says:

      “it’s not clear that the Fourth Amendment protection against unreasonable searches and seizures was intended to protect innocent bystanders to an arrest”



      I’m…pretty sure that the default assumption is that you’re protected by the Fourth Amendment.Report

      • PD Shaw in reply to DensityDuck says:

        Everybody is protected from unreasonable searches and seizures, in particular to be free from excessive force when being arrested. The innocent bystander was not being arrested.

        I think there is an assumption in many of the comments here that federal civil rights lawsuits are structured to regulate all aspects of law enforcement. It’s only those issues that arise under the Constitution. For example, an Illinois state trooper was driving to the scene of a traffic accident at speeds in excess of 100 mph, while texting his girlfriend. He crashed into a car, killing two young girls (sisters). He was successfully sued for wrongful death in state court, and convicted of reckless homicide under state law. AFAIK, the trooper wasn’t sued for violating their Constitutional rights.Report

        • DensityDuck in reply to PD Shaw says:

          errrrr I should think that if you’re not being detained or arrested then you are inherently protected from unreasonable search and seizure by the default state of existing as a person

          I mean, the whole defense argument in this case is “well nobody ever told me NOT to shoot the dog”, which, going back to the “reasonable person” standard suggests that we would need a reasonable person to conclude that the most appropriate method of controlling a dog is to shoot it.Report

  7. Jaybird says:

    I admit to being surprised that the wrong cop has not yet shot the wrong dog.Report

  8. Mike Schilling says:

    Why is it called “qualified immunity” when it’s blanket immunity that protects the unqualified?Report

  9. Mike Dwyer says:

    This is a really interesting case Oscar. Thanks for presenting it. I’ll say up front that obviously the officer should be fired (was he?) I tend to think of QI as similar in some ways to the way Teddy Roosevelt interpreted the powers of the president. Prior to him the interpretation was that the president only had powers prescribed to him in the Constitution. TR’s interpretation was that the president could claim any powers not specifically denied to him by the Constitution. This was really the beginning of the rise of the Executive branch in American politics, which we see as so problematic today. QI works somewhat the same in that the discretionary powers are fairly broad.

    From Wikipedia:

    “Qualified immunity only applies to acts that are “discretionary” rather than ministerial.[13] Courts specifically distinguish discretionary acts from ministerial acts.[14] A discretionary act requires an official to determine “whether an act should be done or a course pursued” and to determine the best means of achieving the chosen objective.[15] By contrast, a ministerial act is “clerical nature”—the official is typically required to perform the action regardless of his own opinion.[15] However, even ministerial tasks will sometimes involve a small amount of discretion but this small amount of discretion will not necessarily satisfy the requirements qualified immunity.[16]

    Qualified immunity does not protect officials who violate “clearly established statutory or constitutional rights of which reasonable person would have known”.[13] This is an objective standard, meaning that the standard does not depend on the subjective state of mind of the official but rather on whether a reasonable person would determine that the relevant conduct violated clearly-established law.[17]

    Whether the law is “clearly established” will depend on whether the case law has addressed the disputed issue or has established the “contours of the right” such that it is clear that official’s conduct is illegal.[18] It is undisputed that Supreme Court opinions can “clearly establish” the rule for the entire country. However, circuit court of appeals opinions may have a more limited effect. Circuit courts of appeals typically treat their opinions as clearly establishing the law within that circuit[19]—though the Supreme Court has cast doubt on this theory.[20] In order to meet the requirement of “Clearly Establilshed Law”, the facts of the instant case must also fairly closely resemble the facts of the case relied on as precedent.[21][22]”

    This case seems to hinge on two items: 1) Were the girl’s Constitutional rights violated? 2) Was there any law or procedure that specifically forbid the officer’s actions? On #1 this is where I feel like someone could really twist themselves into a philosophical knot. I think about a scenario where a shootout happened in the front yard and the girl was hit. Would the violation of her rights seem less obvious? That’s why self-defense shootings of any kind are so murky because those kinds of questions so often come up.

    Regarding #2 it appears that the officer’s lawyers probably have the right of it as far as precedent goes. if there wasn’t a clearly established procedure that you don’t try to shoot the dog when there is a child 18 inches away, then back to the TR example, the officer can claim he had that discretion because it wasn’t specifically forbidden. Which of course speaks to establishing better procedures, training, etc which we have talked about at length. There should be a lot less ambiguity than there is currently.

    Even though i am a passionate defender of officers that are following established rules, it doesn’t mean I agree with those rules. They do work for us and if we decided as a society that we only wanted them to carry taser guns, that’s our prerogative. No one is forcing these people to serve. We would probably see a big migration of officers leaving their jobs, but again, we make the rules. It feels to me that while the outcome of this case really, really sucks, it’s probably the right decision legally. It should also be illustrative of the need for doing better, but alas we have a couple of thousand police departments nationwide so that is a very tall order.Report

    • InMD in reply to Mike Dwyer says:

      This is the answer to DD’s question above. Under the standard a lack of precedent or statute on the books makes it virtually impossible to get passed QI even with the most idiotic of conduct.

      The perverse consequence is that extremely stupid and reckless actions end up being protected simply because no one has thought to write an on point law or there’s no precedent saying the specific actions are illegal. The more outlandish the action the less likely there is to be culpability. If changing that would cause a migration of peace officers out of their jobs I’d say it’s a sign we were hiring all of the wrong people to begin with.Report

      • Mike Dwyer in reply to InMD says:

        Unfortunately the only way to change that dynamic is to flip QI to mean that officers are only protected when following written procedure. The problem there is that as soon as they confront a scenario that no one thought to write down, the officer could face civil or criminal penalties. So it’s a bit of a Catch-22, however I do believe it behooves departments to try to game out as many scenarios as possible and write procedures to address them.Report

        • InMD in reply to Mike Dwyer says:

          I don’t think it needs to be flipped (believe it or not I agree with the basic concept of QI). I do think state legislatures need to do a better job of setting standards for recovery in state courts arising from extreme misconduct of government agents. There’s no reason a 1983 suit with its various trappings needs to be the only option. That’s just a policy decision and it can be changed.Report

          • pillsy in reply to InMD says:

            On the one hand, sure.

            On the other hand, if Constitution doesn’t protect a kid from being shot by Officer Dumbfuck because Officer Dumbfuck decided to take an entirely unnecessary shot at a dog, why do we even have the damned thing?Report

            • InMD in reply to pillsy says:

              I hear you, and on a visceral level agree. However our courts have a long standing doctrine that constitutional decisions are to be avoided where cases can be decided on other grounds. Most of the time that’s a good thing so that interpretation of the highest law in the land isn’t in constant flux and no one knows what the rules are.Report

      • Em Carpenter in reply to InMD says:

        It’s circular logic- if it’s QI unless there is precedent, then there can never be precedent. KWIM?Report

        • InMD in reply to Em Carpenter says:

          Exactly and it’s why I think states need to explore different solutions and better incentives that don’t rely on constitutional interpretations courts are loathe to make.Report

        • Oscar Gordon in reply to Em Carpenter says:

          That, and the appearance that the courts can keep legally splitting hairs on any given situation to avoid finding precedent.

          Sure, that ruling established that police can’t injure a kid who was standing against a fence, but in this case, the kid was laying on the ground. Totally different!Report

      • DensityDuck in reply to InMD says:

        The issue with QI is that there was always a duality; while the officer might be protected from civil liability, that didn’t mean they got to keep on being a cop after doing something extremely reckless or stupid. That latter bit has fallen off lately, which is why people are questioning QI more.Report

        • Mike Dwyer in reply to DensityDuck says:

          This. I can’t recall whose idea it was (Oscar?) but somewhat suggested a blanket policy where if you fire your gun in the line of duty, you get blanket QI but automatically lose your job (with severance). It’s not a terrible idea in light of this reality.

          I will say it seems like anecdotally there are more cop prosecutions lately. Sam probably has a database tracking this, so maybe he could verify.Report

          • Oscar Gordon in reply to Mike Dwyer says:

            It was me, although I may have been riffing off someone else’s idea.

            But yes, dumb officers should be fired AND have their credentials pulled. No more moving one town over and getting a new badge and gun.

            And just to keep in mind this is not just courts keeping the status quo.Report

  10. Em Carpenter says:

    I won on the issue of QI at the Fourth Circuit in an excessive force case. My client was shot in the head through the passenger side window of his truck when he tried to flee from the service of misdemeanor warrants. He was 19. (He didn’t die, but he would have been better off if he had.)
    During the official “investigation” (by his own agency), the shooting officer was interviewed. I counted something like 12 statements by the officer during the interview to the effect of “he was going to escape”, “he was going to get away” “he was trying to get out” “he was about to flee” etc. At the end of the interview, after trying every which way to get the “right” answer from the officer, the interviewer asked point blank: “were you in fear for your life or that of others?” And of course at that point the officer said “yes, I was very afraid that he might run me over.” (Recall I said my client was shot through the passenger side window, meaning the officer was not in the path of the truck.) It was very important that the interviewer get those magic words out of him, because Tennessee v. Garner and others have made it clear you can’t shoot a fleeing misdemeanant just to keep him from getting away. So, there was precedent which gave the officer notice that he couldn’t do that. Fortunately, 2 of the 3 judges on my panel didn’t buy his very thin pre-textual justification for the shoot.
    Ended up settling after that.Report

    • InMD in reply to Em Carpenter says:

      First awesome on you for winning. Second this is the perfect illustration of the burden. That’s about as good authority as anyone is ever going to get and still 1/3 went the other way.Report

      • Em Carpenter in reply to InMD says:

        My boss at the time told me “the good thing about arguing at that level is you can tell before you walk out of the room if you won or not.” But I had one judge who was clearly on my side, one who clearly was not, and one who didn’t speak!
        The one who was against me had some really bizarre rationale. He kept pointing to the “objective officer” standard and the rule that an officer’s individual subjective motivations do not matter, and applying that to my argument that the officer shot because he didn’t want his suspect to get away rather than because he feared for his life. That was a really strange framing, I thought. Because wouldn’t the opposite be true? That it wouldn’t matter if he did think he was in danger? I think the “objective officer” standard still went in my favor- would an objectively reasonable officer have believed he was in danger in that situation?
        I had some evidence that the officer had a relationship with my client’s ex-wife (yes, at 19 he was already divorced). I couldn’t use that because then I would clearly be getting into subjective motivation territory. But whether or not he reasonably believed he was in danger was relevant, and those statements directly rebut that.Report

    • JS in reply to Em Carpenter says:

      There has been, over the last two decades or so, a spate of very popular training for police that boil down to “Anyone within 20 feet of you is a lethal threat to your life”. Yes, that includes a naked, unarmed man on the ground. Anyone with a weapon is, of course, a lethal threat to your life period, no matter where they are.

      Which means, of course, that carrying concealed is, in fact, a justification for an officer to legally shoot you. Breathing within 20 feet of an officer is a legal justification for them to shoot you.

      These training modules are popular because they teach police to say the magic words (“I was in fear for my life”) and, if taken to court over it, the officer can point to his official training that backs up his words.

      Since cops don’t actually shoot everyone within 20 feet of them, nor do they treat everyone carrying concealed (or openly in such states where that is legal) as lethal threats, there’s clearly some secondary unspoken rule that allows officers to determine who the ‘real threat’ is.

      “Breathing within 20 feet of an officer” and “having a weapon” (any weapon — gun, knife, rock, suspicious looking sock, etc) are just the justification used in court.

      I’m sure an analysis of all the lethal force responses by police might point people to the actual threat analysis, but as I understand it, until recently there was no national repository of officer involved shootings. Much less a more comprehensive database covering any discharge of a weapon on official duty, whether someone ended up shot or not.Report

  11. Chip Daniels says:

    Maybe in order to reform QI we need to enlist some high profile celebrities to bring attention to the problem.
    Like maybe some athletes could kneel during the national anthem in protest.

    I bet that would work.Report

  12. Oscar Gordon says:

    A wee bit of good news, from Balko.Report