Unqualified: The Winding Road of Qualified Immunity

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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148 Responses

  1. Jaybird says:

    I don’t understand the argument in Jessop v. City of Fresno.

    I mean, if you told me that “oh, one of the justices was found with compromising pictures and the police chief threatened to go to the press”, I’d understand it.

    But, outside of something like that, I have no comprehension of the loops of logic required to get from here to there.

    Would it be illegal for me to do that?
    Would it be obviously illegal for me to do that? (Like, not a question of whether it’s illegal to have a picnic in the park during a quarantine or something like that, but whether it’s something that if you asked 100 people, 96 percent of them would answer “yes, it’s illegal” and the other 4 would answer “I refuse to take government surveys seriously!”?)

    The argument seems to be “well, nobody ever *SAID* you couldn’t do that”.

    It’s not even “WE DIDN’T DO IT AND YOU CAN’T PROVE IT!” which, at least, would be understandable (even if a bald-faced lie).

    I don’t understand acknowledging that it happened and then admitting that it’s not something that people can sue over.Report

    • Em Carpenter in reply to Jaybird says:

      It’s illegal, but no case law has deemed it unconstitutional. If I recall the 9th circuit acknowledged the officers could be prosecuted criminally for it. They just can’t sue under 1983 because they say there is no precedent for those actions being a violation of civil rights.
      I don’t agree. The constitution says government cannot deprive you of your property without due process and clearly, they are depriving him of his property. When it was seized it was via legal search and seizure, as far as I know, so there was due process there… but then they kept it. Which has apparently never been taken up and decided by a court to be a constitutional violation…
      And there is an argument that while the seizure was in the course of official duties, the theft was not, which would eliminate the “under color of law” element.Report

      • Jaybird in reply to Em Carpenter says:

        So “unconstitutional” here is a term of art. If the government silenced a news radio station or something like that, I might say “that’s unconstitutional!” but the proper response to my emotional outburst would be “well, not until a court finds it so”?Report

        • CJColucci in reply to Jaybird says:

          Some things are reasonably clear. Many things are clear enough that people don’t do stuff — like seize radio stations. But there’s a large grey area where reasonable people can disagree about whether something is unconsitutional or not, and under the current law of qualified immunity if you do something in that grey area, you can be told to cut it out, but you won’t have to pay money. Until someone does it the next time, after a court has said, in effect, “go and sin no more.”
          As to the proper response to emotional outbursts, I leave that to a different profession from mine and Em’s.Report

          • Jaybird in reply to CJColucci says:

            If I wanted to undercut the police, I’d show evidence of them killing people under color of law.

            If I wanted to undercut the courts, I’d show the excesses of QI.

            And, I suppose, the lawyers who explain “well, there wasn’t an established case that said that cops shouldn’t steal”.

            Out of curiosity, does *THIS* case establish such a precedent?

            Like, if cops steal $200,000 during the riots, does this case now become the thing that future courts can point to?

            Or is stealing $200,000 under color of law still up in the air over whether it’s “unconstitutional” (in the literal sense) or not?Report

            • CJColucci in reply to Jaybird says:

              Out of curiosity, does *THIS* case establish such a precedent?

              Now that I’ve read Jessop, probably not. Courts can handle QI claims two different ways. First, they can decide the merits and then decide that, although the court has now decided that X is unconstitutional, reasonable officials could not have known it at the time, so no money, plaintiff, but defendants, go and sin no more. When a court does that, then the decision is a precedent for the future. That method of proceeding used to be mandatory, under Saucier v. Katz, but that regime didn’t last for a variety of reasons. Second, a court can skip the merits stage and jump right to whether, whatever the right answer is to the merits question, reasonable officials could not have known what the right answer is. Often, the answer to the second question is a lot easier to determine than the answer to the first, so judges often make the jump. When a court follows the second procedure, there is no “go and sin no more” portion to the decision, so it doesn’t establish the existence of the right for the next case.
              Legal academics, including most of the academic critics of qualified immunity, like decisions that decide things of more general application than “A wins, B loses.” So they don’t like it when judges make the jump to qualified immunity and leave the ultimate merits up in the air. (Busy judges, understandably, have different priorities.) I suspect, and I think Em suspects as well, that if the critics got their way, they’d be like the dog that caught up with the car it was chasing. Now what? Most likely, the cases would generally come out the same way, just for different reasons, and we’d get a bunch of decisions saying either “I believe the cops” or “No, you don’t have the rights you would like to think you have.”
              As far as our specific theft victims are concerned, though, regardless of qualified immunity, if what they say is true, the cops stole their stuff and they can bring a state tort suit to get it, or its monetary value, back.Report

              • Jaybird in reply to CJColucci says:

                So we still haven’t established that stealing $200,000 from someone isn’t a violation of their 4th Amendment rights and so, if cops do this again as part of their protest peacekeeping, they can’t be held liable.

                You’d think that this is confusion that the SCOTUS would be able to clear up.Report

              • Em Carpenter in reply to Jaybird says:

                That’s why I called it a self-defeating loop: They invoke QI because there is no case calling it unconstitutional, and there is no case calling it unconstitutional because they invoke QI, which is granted because there is no case holding that it is unconstitutional… etc etc.
                (Keeping in mind things can be determined to be unconstitutional in ways other than via 1983 suits.)Report

              • CJColucci in reply to Jaybird says:

                It is. But for some reason the Supremes like to take cases of no general interest where qualified immunity was denied and reverse rather than take cases in which it was granted. I have my own theories about why this is, having to do with the vote lineups on these cases, but I won’t ventilate them here.cReport

              • Jaybird in reply to CJColucci says:

                This is the incident I was thinking of, by the by.

                If these are police officers, would this be covered under QI?

                *MY* answer is “no”, but I get the feeling that others might answer “we don’t know”.Report

              • CJColucci in reply to Jaybird says:

                Are they executing a search warrant? Rescuing someone trapped inside? Just breaking and entering? There’s no way to tell from this whether they are doing anything wrong at all, let alone whether it might be a violation of the store owner’s constitutional rights, or a close enough call for QI?
                So the answer really has to be “We don’t know,” unless you know something you’re not telling us.Report

              • Jaybird in reply to CJColucci says:

                So I got to googling. As it turns out, they were freeing people trapped inside (at the behest of the owner, no less).

                On the ‘gram, this happened:

                holymosley_ Cops broke into your shop?

                oscarstonenyc @holymosley_ no I had them arrest 3 men who accidentally got trapped in my store trying to loot it #instantkarma

                Which leaves me limply wondering if any of the cops happened to pocket a watch or two while in there, would *THAT* be covered under QI?Report

              • CJColucci in reply to Jaybird says:

                It wouldn’t get to a question of QI. A cop who steals surreptitiously like that isn’t acting “under color of law” any more than a cop beating up some random dude in a bar during an argument about a football game is. So the remedy is not a civil rights lawsuit at all, and, therefore, no question of qualified immunity arises. Prosecute for theft or sue for conversion or both. No QI question in either.Report

    • Marchmaine in reply to Jaybird says:

      “Police reported that they seized $50,000, though neither man was charged with a crime. But according to Jessop and Ashjian, the officers confiscated $151,000 in cash and another $125,000 in rare coins and “stole the difference” between those amounts and what was officially listed.”

      The “strange” thing about the case isn’t that Officers stole something… its the discrepancy between what they legitimately seized ($50k) and what the plaintiffs allege ($275k).

      If the court allowed that the Officers could be criminally charged… and then if found guilty… would’t QI *not* apply in the face of the fact that it was proven they deprived the plaintiffs of $225k?

      Which, of course, brings up the problem of proving that they took $275k in non-recordable goods vs. $50k. In terms of a criminal conspiracy, giving up $50k as seized was, I hate to say it, genius.

      Just makes me wonder if, ironically, this is a good use of QI since the remedy is criminal… and since my hunch is that there’s no chance of proving the discrepancy… what’s the “point” of civil charges other than harassment?

      The problem, such as it exists, isn’t QI but regulations/practices of documenting every aspect of the seizure such that citizen’s goods cannot be lifted without a broad criminal conspiracy – which I’m not saying doesn’t happen, just that QI perhaps wasn’t the problem here. Might even point to worse issues than QI.Report

      • PD Shaw in reply to Marchmaine says:

        Just for point of order, the city and officers deny they stole anything, but for purposes of the QI motion to dismiss, the courts assume they did.Report

        • Marchmaine in reply to PD Shaw says:

          Really? Fascinating.Report

          • PD Shaw in reply to Marchmaine says:

            Maybe even more complicated than I thought. The city claims in its filing with the SCOTUS that “the petitioners entered into a contract with the City of Fresno to become informants, in exchange for not being charged; and that they agreed to forfeit to the City $50,000 collected from the searches. (2ER:224-225, 271; 3ER:472-475, 486.)” Filing (pdf)

            That leaves me pretty confused, and I don’t think it matters on the QI issue; its more casting shade at the petitioners.Report

    • PD Shaw in reply to Jaybird says:

      It is “something people can sue over”– Jessop can sue the City of Fresno for theft in a civil lawsuit for conversion. Just like he could sue you for conversion if you stole Jessop’s coins.Report

      • Jaybird in reply to PD Shaw says:

        So Jessop can sue the city, he just can’t sue the cops?Report

        • CJColucci in reply to Jaybird says:

          That would depend on the details of California tort law, which I do not know. In New York, you could sue either or both, though there are complications whichever way you go. In general, since what you want is money, you’re better off if the city is in the case in some way because it is the deep pocket.Report

        • Em Carpenter in reply to Jaybird says:

          He could possibly sue the cops in their individual, not professional, capacity; i.e., not under color of law. (That would be an interesting situation if the defendants then argue that they were in deed acting as agents of the government when they stole…)Report

        • PD Shaw in reply to Jaybird says:

          He can sue somebody. Who took the coins? This is a quote pulled from the trial court’s order: “plaintiffs acknowledge in their opposition that they had access to an adequate post-deprivation remedy under California tort law.”

          When this issue came up here before, I looked around to see what plaintiffs actually said because this is a strongly worded conclusion — I assume they said that the remedies for federal constitutional violations are better than for state tort lawsuits.Report

          • CJColucci in reply to PD Shaw says:

            Probably the biggest difference is that in a federal civil rights lawsuit, they’d get the money (or its equivalent) and an award of reasonable attorneys’ fees. In a state tort suit, all they would get is the money. They would either have to pay their lawyers out of their own pockets or give them a piece of the action.Report

            • PD Shaw in reply to CJColucci says:

              My understanding is that most civil rights judgments against police officers are indemnified by their employer (basically the tax payers), and this is not always transparent. There is a study as I recall that looked to who paid the judgments, and even where a police officer is expected to pay some, they’d paid none. That makes a big difference in remedies because I doubt many significant judgments could be paid by a police officer; they would just be pushed into bankruptcy.

              This seems like a large problem with using 1983 actions to deter bad conduct, the system does not do much for deterrence because it favors compensation to the victim. And if the victims and their lawyers aren’t compensated, they won’t bring the cases to begin with.Report

              • Oscar Gordon in reply to PD Shaw says:

                Why would the employer not be on the hook for the actions of their employee?Report

              • CJColucci in reply to Oscar Gordon says:

                It’s true that the employer generally indemnifies the defendant. At least most of the time. And plaintiffs are damned glad of it because that means the judgment will actually get paid. (Defendants are damned glad of it too, and would be loathe to accept government employment otherwise. I was once sued by a lunatic for having the temerity to win a lawsuit she brought.) That puts the financial incentive for changing practices, if any, on the employing city or state, which is best positioned to fix things. Does that work well? Maybe not, but anything else would work a lot less.
                To answer Oscar’s question, for regular tort suits, if an employee does wrong in the course of his employment, the employer is, generally, vicariously liable. If you win, you can get a judgment against both, and you are better off for it because the employer is generally the deeper pocket.
                Federal civil rights actions are governed by different rules. Why? They just are. The rule is that the individual is liable for his own malfeasance and that the employing government is not liable unless there is a “policy or custom,” to use the legal buzzwords, that the individual miscreant acted in accordance with. In cop cases, the relevant “policy or custom” will often be a lack of adequate training. That may sound weird, that inadequate training can be a “policy or custom,” but it is, and it’s an important one in cop cases.Report

              • PD Shaw in reply to Oscar Gordon says:

                Many states have laws requiring the government employer to indemnify employees for judgments and settlements entered for 1983 actions, although there are also conditions and local variations. There has been a lack of transparency about how this works in practice. This law review article is the best evidence I am aware of:

                “Through public records requests, interviews, and other sources, I have collected information about indemnification practices in 44 of the largest law enforcement agencies across the country, and 37 mid-sized and small agencies. My study reveals that police officers are virtually always indemnified: during the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments — even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.”

                Police IndemnificationReport

  2. CJColucci says:

    This is a good, solid, and fair summary of the development of the law of qualified immunity and the problems in its current application. Many decisions applying it are real head-scratchers, and the Supreme Court has shown an unhealthy interest in taking fact-bound cases of no general importance denying qualified immunity and reversing without clarifying the law — which is their job, not the correction of otherwise random erroneous decisions.
    I’d be interested in your take on one particular issue. In much of the literature on qualified immunity, authors argue that eliminating the doctrine wouldn’t so much change results as change the means of getting to them. Instead of getting off on qualified immunity grounds, the miscreant will get off because either the jury buys his view of the facts or the judge accepts the plaintiff’s view of the facts for the sake of argument and rules for the miscreant on the merits — squarely holding that the miscreant’s alleged conduct was OK. (I doubt that this is what many who advocate eliminating qualified immunity want, a bunch of decisions saying definitively that we don’t have the rights we’d like to think we have.) In my own practice, qualified immunity has usually been a throw-in and the cases have been decided on the merits. My won-lost record probably wouldn’t change much without qualified immunity.Report

    • Em Carpenter in reply to CJColucci says:

      I tend to agree. It’s part of what I meant when I said there are plenty of other ways to get a case tossed without claiming QI. But a judge or jury accepting the government version of events is definitely a concern in these cases. Just like the case I mentioned here with the pistol whipping. The events were basically undisputed. Even though the Court decided that QI covered the officer, they also sort of said even if it didn’t, that force was justified under the circumstances, so there was no constitutional violation anyway.Report

    • Saul Degraw in reply to CJColucci says:

      The fact is that there is a lot of force in our society that makes people trust and like cops. The group that distrusts them is probably very small overall. Even a lot of well-meaning liberals who understand and accept the concept of systematic racism seem to want to believe that the issue is just some bad apples. Someone I know from college is generally a solid liberal (though she describes herself as moderate, she effectively is a straight down Democrat). She is a huge supporter of LBGT rights, she understands systematic racism.

      But she is also a middle-class Irish Catholic girl from the northeast and this means she knows a lot of cops and it is a huge part of Irish-American heritage in the northeast. She wants to believe that the cops in her life were just good people instead of good to her because of affinity.Report

  3. InMD says:

    Thank you for the write-up Em. My own opinion is that, while the ‘established law’ prong needs to go, addressing QI may not be the big blow people think it is with respect to the larger problem of police misconduct. I think best case scenario would be that QI no longer stood in the way of 1983 claims arising from the really egregious stuff. However it’s far from clear to me that it would offer much of a front end deterrent especially in the more common situations with murkier facts. There’s a huge up front cost burden that keeps most potential plaintiffs out of court to begin with.

    Again I’d like to see QI reformed but what would be way better would be new laws governing use of force and liability at the state and local level as well as regulatory rules PDs have to follow. You can even create state level claims that can be filed in state court arising from violations of state constitutions. 1983 is not the end all be all weapon here, and it isn’t necessarily the most important or effective at getting to the change people want to see.Report

    • Aaron David in reply to InMD says:

      I am of the opinion that there are a host of things that desperately need to be changed in the way policing is conducted in the country, and whle QI is one, it is not the only one. We, long ago, stepped onto a path that is leading us to this point, and getting back to where we once were is going to be a long and painful struggle. New laws regarding use of force, not over taxing dept. with non-policing functions, removal of military equipment, and so on (and on, and on…)Report

    • Marchmaine in reply to InMD says:

      I think you’re right, sadly.

      On the optimistic side, I agree that redressing QI so that it’s not stuck in this recursive loop is definitely something legislators should address; that’s a no brainer. On the pessimistic side, since its clearly an “easy” fix, it’s exactly the sort of thing that could be touted as REFORM!… when it probably won’t do all that much other than straighten a few crooked paths.

      And worse, if we remove QI… we’d only have to reinvent it as the “Anti-Karen Law.” Which, honestly, might be the right sort of calibration in terms of what it protects… but my concern would remain that it would be oversold as a reform and under deliver as actual reform.Report

      • InMD in reply to Marchmaine says:

        I don’t think QI is inherently wrong, and there are certain situations where it does make sense. The fundamental problem as far as the doctrine goes strikes me as one of remembering the rubric and forgetting the rationale (maybe even applying the rubric with reckless disregard for the rationale).Report

    • Stillwater in reply to InMD says:

      but what would be way better would be new laws governing use of force and liability at the state and local level as well as regulatory rules PDs have to follow.

      In what sense would new, additional laws be an improvement over repealing bad, existing ones? This strikes me as overly complicated since it embeds what constitutes “reasonable” in a convoluted matrix of existing laws and precedents. Further, I’m not sure I see how shifting liability to states and cities is different than current practice where (eg) the city of Chicago pays out scores of millions to settle civil suits while the bad actors who committed those crimes are protected by the union and DAs.Report

      • InMD in reply to Stillwater says:

        What’s at issue is the specific type of claim under 42 USC 1983 for violation by state actors of the person’s rights under the US constitution. That is a federal law, and one, narrow means of seeking relief under a specific statute. There is no reason states cannot create additional avenues of relief within their jurisdictions or impose different rules on police forces in the state (obviously within constitutional limits). Even with changes to QI there are a lot of reasons a 1983 is a long shot in most circumstances and for that reason is a limited deterrent.Report

        • Stillwater in reply to InMD says:

          Ahh. I misunderstood your comment. I thought you were suggesting new federal laws that apply at the state and local level rather than new state and local laws. Sorry bout that.Report

          • InMD in reply to Stillwater says:

            No problem at all. I said in one of the other posts that I think improving this issue looks a lot more like marijuana liberalization than a watershed SCOTUS decision or federal law.Report

            • DavidTC in reply to InMD says:

              I said in one of the other posts that I think improving this issue looks a lot more like marijuana liberalization than a watershed SCOTUS decision or federal law.

              It’s not going to be watershed SCOTUS decision. They’ve had plenty of chances to deal with this and punted each time, from what I understand.

              However…doing it piecemeal at the state level is…simply not going to work either. Mostly because the _problems_ are mostly at the large city level, whereas it would have to be solved at the state level at the lowest…and a lot of these states are Republican run and are, frankly, happy about protests in Democratic big cities, it gives them something to be angry about.

              And a notable thing here, and a thing that a lot that liberals are completely ignoring, is that this bipartisan problem. Yes, conservatives tend to be _slightly_ worse at it, but slightly is the word there. We’re talking like…10% worse. Like…conservatives tend to _ask_ the cops to be slightly worse…but the actual problem is the cops are, in actually, about fifty times worse _already_.

              There are places with total Democratic control that still have absurd levels of police violence and no accountability for it. The LAPD is the textbook example. A Democratic city, in a Democratic state, with a Democratic: Republican voter ration of something like 3:1. And they can’t seem to stop beating people. No one can do anything politically. Or is willing to try.

              Honestly, the police no longer operate any sort of political control. They have moved themselves outside of politics, barring, again, that 10% adjustment on the dial.

              The only thing that can fix this is a political level stepping in that _isn’t_ at the level of the police. Because the local levels next to them can’t fix it, and idea that states are going to want to start solving this is…not realistic. Again, even California hasn’t.Report

              • InMD in reply to DavidTC says:

                Yup. It’s impossible. Until enough voters decide to prioritize the issue and suddenly it isn’t.Report

              • DavidTC in reply to DavidTC says:

                The LAPD is the textbook example

                BTW, in posting that, I said to myself, ‘I am not sure if the LAPD has actually attacked anyone recently, or in fact how the protests in LA are going. I don’t remember specifically anyone saying anything about them. However, I have enough faith that they are still violent-asshats that I will post my comment that they keep beating people _without checking_, and assume they’ve just done so this protest cycle.’.

                I just checked. And…we didn’t even need the heightened-cop-asshole-level of the protests…they apparently just randomly beat someone two months ago. Someone who wasn’t trespassing, or resisting, and they just kept punching in the face, and then held overnight for no reason. The cop doing it has his camera off, but luckily the other cop didn’t.

                The officer has not been charged, fired, or even identified, as far as I can tell.

                But, hey, they didn’t kill them! So…points for that, I guess.

                I just thought I mentioned…I posted blindly ‘The LAPD can’t seem to stop beating people’, just _assuming_ it was still true.

                It’s pretty bad when people can make that assumption and be right.Report

    • Oscar Gordon in reply to InMD says:

      Personally, I think removing or reforming QI should be one of the first dominoes to fall, but is by no means the only domino that needs to fall.

      Basically I see QI as a bulwark that stands against enforcing any and all other potential reforms. As long as QI remains as it is, TPTB have no incentive to change, and very limited ability to enforce change.Report

      • Stillwater in reply to Oscar Gordon says:

        I agree. I was struck by something in CJ’s comment above: that there are other mechanisms by which cops can evade accountability *other than* QI. If so, then people who defend cops-rights (not saying CJ is doing so) should have no problem with limiting its scope or getting rid of it altogether.

        Of course, any suggestion of rolling back those provisions would result in a police union riot.Report

        • CJColucci in reply to Stillwater says:

          I have occasionally defended state troopers or corrections officers, though, after an office reorganization, not in many years. My memory is not what it used to be (back when, I could remember only what happened; now I remember everything, whether it happened or didn’t), but I can’t recall a case where QI made a difference. I won or lost on the merits.That said, it has made a difference in a small number of non-law -enforcement cases where confused bureaucrats are trying to do the right thing and it’s genuinely unclear what they can or can’t do.
          To get back to cops, one war story. I represented a state trooper sued for false arrest. The plaintiff was the wife of a sleazebag who reported his wife’s car stolen and took insurance proceeds for it. An informant told my state trooper client that the “stolen” car was in the house basement. The trooper got a warrant, and there it was. He arrested the wife, who insisted she knew nothing about it. The sleazebag husband testified that he had found the car, after reporting the theft, in a field and brought it to the basement. My shortest ever cross-examination followed: “Mr. Lieto, when you found the car and put it in the basement, did you tell your wife, ‘Honey, I found your car?'” “No.” “No further questions.” Neither my client nor I believed the wife’s denials of knowledge, but she was an appealing witness and didn’t think I could beat her up successfully, so I went straight for a probable cause defense. “The car was in the basement. Maybe she didn’t know, but the car was in the basement. What was he supposed to think?” The jury was out 20 minutes. The judge, who seemed to know how things were going, didn’t even tell them that they could order lunch if they deliberated long enough.
          “Probable cause” as a defense is much like QI. The cops arrest you. You didn’t do it. But if reasonable cops would have thought you did it, you lose. Analytically, that’s very much like QI. In some cases, you have both probable cause issues and QI issues. If a reasonable cop would have thought you did it, that’s probable cause and the cop wins on the merits. If there wasn’t probable cause, but a reasonable cop would have thought there was probable cause (known as “arguable probable cause”), the cop wins on QI. Sometimes, courts jump to the QI issue because it’s easier to decide that there was arguable probable cause then it is to decide that there was probable cause, but the issues are very much the same, and I can’t really parse out the differences in any reliable way.Report

  4. Saul Degraw says:

    I had a friend in law school who had an externship with the U.S. Attorney’s Office for the district of Northern California. His job was to write the motions to dismiss for all the pro per lawsuits that alleged stuff like the CIA were monitoring the plaintiff through filings in his or her teeth. There was enough of this work to keep him occupied all through out the externship. There are also a fair number of nuisance suits among prisoners that get tossed around the legal community. One I remember is where a prisoner sued himself and then demanded that the U.S. government pay him some obscene amount of money in damages.

    There is probably a very interesting study in how mental illness manifests itself to pro per litigation.Report

  5. greginak says:

    This is an interesting description of a bit of insanity. Good stuff. I’ll echo what a couple people have said above is that changing QI should happen and won’t be a silver bullet. There is no One Simple Trick to changing cops. Defang QI or neutering cop unions might help. But complex problems involving resistant to change organizations require complex solutions. Those solutions will need years of constant attention to take root.

    One fear i have of how getting rid of QI fails is that we see a flood of clearly nonsense harassment lawsuits against cops which leads to an outcry to give them back their damn QI. The flood of pro violent cop movies in the 70’s exemplified by Dirty Harry were, among other things, a response to the variety of laws restraining cops including civil rights laws. QI needs to be heavily curtailed at the least but it is not a cure all and we need to do it well.Report

    • Stillwater in reply to greginak says:

      I’ll echo what a couple people have said above is that changing QI should happen and won’t be a silver bullet. There is no One Simple Trick to changing cops.

      greg, I love ya man, but you keep repeating a view that no one holds: that there is one simple trick to fixing this problem. Everyone who wants to see reform understands that there are multiple problems at many different levels, not least of which is retail politics.Report

      • greginak in reply to Stillwater says:

        Urmmm i’ve seen repeatedly people pounding on “get rid of unions” or “get rid of qi.” Yeah thats fine and sounds like the One Simple Trick thing. I’ve lost track of how many times people think of a hashtag as the entire basis for an argument never getting into the various nuances. Thinking of numerous discussions of BLM and Believewomen etc. To be fair maybe i’m just letting the inveterate conversation distractors get in the way. But you go to blog with the peeps you got.



        • The people I’ve seen saying “get rid of police unions” have been people who don’t approve of unions, period. Odd.Report

          • greginak in reply to Mike Schilling says:

            Well yeah there is that. Gotta get rid of teachers and janitors unions to fix the cops.Report

            • Oscar Gordon in reply to greginak says:

              It’s not the unions as much as the contracts said unions are allowed to negotiate for.

              I mean, we have rules about contracts, right? You can’t sign away rights, etc.

              I see no reason we can’t have laws that say employment contracts can not provide rights and privileges that supersede the law, or something like that.

              Let the police keep their unions, just don’t let unions give the police special rights when it comes to criminal or civil actions.Report

              • greginak in reply to Oscar Gordon says:

                I’m completely on board with that. People with power need oversight. They can’t design their own oversight and set the rules to protect themselves.Report

              • DavidTC in reply to Oscar Gordon says:

                It’s not even ‘negotiation’. Police unions, in the objective sense, are very weak. Police officers are generally unskilled workers, with a tiny amount of training, and trivially replaceable. It’s like a100 hours of training.

                If the police union actually showed up at a _hostile_ negotiating table, aka, what most unions show up at, they’d lose, badly. Some of them might lose completely, basically be replaced entirely by non-union workers. They logically have very little power.

                But we don’t ‘negotiate’ with police unions. We just shovel authority and immunity and everything at them, all by default and with barely the slightest thought given…except _sometime_ we haggle over money, but that’s usually merely a practical matter in that the money doesn’t exist in the local government to hand them.Report

          • Jaybird in reply to Mike Schilling says:

            Radley Balko has been opposed to *ANYBODY* breaking and entering into a house. Yet he seems awfully incensed when cops do it. Do you think he has an agenda?


            • Mike Schilling in reply to Jaybird says:

              You’re equating belonging to a union to committing a crime? Ok.Report

              • Jaybird in reply to Mike Schilling says:

                No, not exactly. (We got into this a lot when gay marriage came up.)

                Comparing the people who were opposed to gay marriage to the people who were opposed to whites and blacks getting married was not comparing being gay with being black.

                Though I could *EASILY* see why that was the argument that people wanted to have.

                In any case, your argument was that, sure, someone might be opposed to the cops being in unions… but they’re opposed to everybody being in unions!

                Whether or not there are distinctions made between public-sector and private-sector unions, whether or not the “opposition” to private-sector unions take the form “you’re shooting yourself in the foot” (see, for example, the Hostess Union arguments from a few years back) and the opposition to the public-sector unions has some serious “you’re harming things” criticisms, eliding them all together and then pointing out that the people who complained about police unions also complain about teacher unions… and then leaping from that to “therefore their criticisms can be dismissed” is…

                Well, it’s defending the status quo.

                Even in the face of the police unions protecting officers who commit exceptionally egregious acts.

                But maybe that’s not the point.

                If you just wanted to point out that you had no reason to believe the people criticizing police unions in the past because they criticized every union thus undercutting their own credibility to the point where you not bothering to look at legit criticisms of police unions is on them and not on you…

                Sure. Those libertarians were chicken littles yelling “the sky is falling” over every little thing and when something bad actually happened, it was all-too-easy to conclude that they were just as crazy this time as they were the last hundred.


                Does this mean that you’re finally on board with the police union criticisms, now that the libertarians aren’t in the way screeching about how they’re covering up for excesses the way they do for teacher unions and rubber rooms?Report

              • DavidTC in reply to Jaybird says:

                Does this mean that you’re finally on board with the police union criticisms

                I’m not. The problem _still_ isn’t the police unions.

                The problem is communities who let the unions set every single rule and regulation under which police operate.

                And, yes, unions sometimes negotiate working conditions and whatnot, but the police union consists of a small, uneducated workforce that is trivially replaceable. And what’s more…most other unions don’t like them, and won’t stand in solidarity with them. (1) You’re not going to to get the Teamsters or construction workers walking off because the police are on strike because they demand the right to kill people.

                The police union negotiating the ability for them to kill people without repercussions is as absurd as the staff at Wendy’s unionizing and negotiating the right to company cars and six-figure salaries…and the right to urinate in customer’s food.

                Police unions simply are not powerful, in the sense ‘ability to use the power of the union’, aka threaten a walkoff and picket and other stuff that unions can do under labor laws. They’re too small, and too easy to completely replace.

                They are just _handed_ that power, by elected leadership who want to be ‘pro-police’ or ‘anti-crime’. By legisitulate who wants the the same thing. By right-wing-trained lapdog judges who seem completely unable to pay attention to the actual situation.

                If I can pull out my cellphone and call in the military and get them to murder anyone with a drone…the problem isn’t the damn cellphone. Not only is the cellphone logically the same as any other cellphone, but it literally doesn’t matter how my ‘ability’ works. Making me send an email or telegram doesn’t actually change anything. The problem is that military has given me that power.

                The problem isn’t police unions. The problem is the power that the government has _freely given_ police unions. They haven’t taken it, they haven’t walked picket lines for it, and it’s an absurd concession to them.

                1) This could change, but it’s only going to if the police become respectable people again, which…means we’ve won anyway.Report

              • Jaybird in reply to DavidTC says:

                I am down with saying that the problem isn’t police unions but, instead, saying that it’s absurd that police unions have too much power.


                If all police unions were responsible for was arguing for more money, more vacation, more sick time, and better pensions, only libertarian cranks could possibly imagine arguing against them.

                Let’s have police unions that do things that only libertarian cranks could possibly criticize!Report

              • DavidTC in reply to Jaybird says:

                If all police unions were responsible for was arguing for more money, more vacation, more sick time, and better pensions, only libertarian cranks could possibly imagine arguing against them.

                No, police unions, like all unions, should have the right to argue for worker safety, or job conditions, or even how workers are hired or fired.

                What they shouldn’t be able to do is just get literally anything, for free, handed to them.

                And also the _other_ negotiating party shouldn’t be allowed to make certain concessions….and shouldn’t make them even _if_ allowed.

                Like…a union can negotiate different safety conditions…but they can’t just negotiate away, like…_customer_ safety concerns. A Home Depot union can’t demand the right to not have to spend time blocking off isles at Home Deport, and instead that they should simply have the ability to drive forklifts through isles where there are people, _and_ be indemnified if they hit people! The first would rightly get Home Depot sued, the second Home Depot just simply doesn’t have the right to grant people.

                And while Home Depot does have the right (And thus have the right to negotiate with unions that they will) to keep employing people who do that in-violation of their rules and the law…they _shouldn’t_. No sane union would demand that, and Home Depot would, rightly, just flatly refuse to ever make the concession that ‘sometimes our employees can just run over people and we’ll keep them on the job’.

                Home Depot would refuse to do that because they actually treat the union as a hostile (or at least a ‘different priorities’) third party, and are accountable to lows.

                Police, at this point…are NEITHER. They are not accountable to laws…and the government doesn’t even vaguely negotiate with the union. The problem exists because both those are true. If the first one wasn’t true, we’d be putting police officers in jail and the unions couldn’t do anything about it, if the second wasn’t true, we would at least have _employment_ repercussions to misbehavior.

                Part of this is because we keep talking about the ‘police’ killing people. I’m wondering if it might be better to talk about the Minneapolis government killing people…because it is just as much their fault as the police.Report

              • Stillwater in reply to DavidTC says:

                The problem isn’t police unions. The problem is the power that the government has _freely given_ police unions. They haven’t taken it, they haven’t walked picket lines for it, and it’s an absurd concession to them.

                This seems like an academic point to me since you’re providing a (incorrect, in my view) historical account of how police unions gained so much power. But regardless of the how unions gained that power, you appear to agree that unions currently *do* have power which goes beyond mere collective bargaining over employee compensation.

                So what do we do now? Will the unions surrender that power easily? Will they “hand it back” once politicians make the request? Will politicians invoke what you view as an easy tool to remedy the problem: fire the cops and disband the union because they’re “easy to completely replace”?

                So, just as a point of reference, you think DeBlasio could fire the entire NYPD and “easily” replace those officers? Am I reading you right? Cuz this sounds like pure fantasy.

                More to the point, it seems incoherent to say that police unions aren’t the problem when you concede that the power police unions currently possess is (part of) the problem.Report

              • DavidTC in reply to Stillwater says:

                So, just as a point of reference, you think DeBlasio could fire the entire NYPD and “easily” replace those officers? Am I reading you right? Cuz this sounds like pure fantasy.

                You don’t ‘fire everyone’ to destroy a union. You don’t fire _anyone_. You just have to refuse to agree to the union’s demand and hire scabs if they strike.

                If you make it clear you are never agreeing to a specific point, and the strike is pointless, people will start defecting.

                And the NYPD is not a single union. And within a single unions, different contracts are negotiated at different times anyway.

                The way this would work is that…NYC simply refuses to sign each new contract with their police employees unless certain things are put into it and other things taken out. They make this it very clear from the start. In fact, I’d recommend they actually pass some sort of law _forbidding_ themselves from allowing contracts with those things in them, to make it clear that is no longer on the table.

                From there…it’s up to the union. They can try a strike they know they would lose, or…not.

                Actually, I recommend the Federal government do something instead, but I’m just saying: Here is how it would work at a local level.

                More to the point, it seems incoherent to say that police unions aren’t the problem when you concede that the power police unions currently possess is (part of) the problem.

                Uh…and what would stop the governments that currently freely give this unconstitutional and absurd powers out without thinking from just…still handing it to the police?

                The ‘the union’ doesn’t have actual power. Police unions cannot do anything. They have no power to kill people. At best, they are the _current_ mouthpiece of the police, who demand power to themselves.

                Get rid of the union, and you’d just have…a lobbying group, or a benevolent association, asking for the police to be given that power. There’d be some other mouthpiece. And the governments, police-lapdog governments, would keep giving the police the exact same powers.

                Talking about the union accomplishes literally nothing. The problem is that police want these powers, and local government are generally extremely happy to give it to them. The union is just the current manner in which this happens, and gives the local government someone else to blame.Report

              • Stillwater in reply to DavidTC says:

                The ‘the union’ doesn’t have actual power. Police unions cannot do anything.


                This is crazy. It’s like you’re playing a semantic game where the term “the union” refers to an abstract property so therefore has no causal efficacy in the world. Bizarre.

                The union is just the current manner in which this happens, and gives the local government someone else to blame.

                David, this makes no sense whatsoever. The police union *negotiates* with government. Not the individual officers.

                But assuming you’re right about this, then shouldn’t you be in favor of disbanding cop unions since from your pov they’re epiphenomenal danglers that perform absolutely no useful function?Report

              • DensityDuck in reply to Stillwater says:

                “shouldn’t you be in favor of disbanding cop unions since from your pov they’re epiphenomenal danglers that perform absolutely no useful function?”

                I think what he’ll do here is go back to his earlier post about how the people who say “police unions are bad” are the people who say any union is bad, and that disbanding or restricting the activity of police unions will A) not actually solve the problems and B) is Giving Aid And Comfort To The Enemy, so that’s two reasons to not do anything about police unions and neither reason is contra hashtag-ay-see-ay-bee.Report

              • DavidTC in reply to Stillwater says:

                David, this makes no sense whatsoever. The police union *negotiates* with government. Not the individual officers.

                Police unions do not ‘negotiate’ with governments in any meaningful sense of the word ‘negotiate’. They merely state things they want to be able to do, and the governments allow it without slightly contesting it.

                I fail to see this changing if police unions…what, exactly? Cease to exist? I have no idea what you’re even proposing.

                But assuming police unions magically cease to exist, I don’t see why governments wouldn’t turn around and ask the police chiefs ‘Okay, what do the police need?’, and the police chiefs would literally make the same requests, which the moronic local governments would agree to.

                Or the legislature would ask some random association of police. Or a lobby group.

                The problem is not what entity, speaking on behalf of the cops, makes the request!

                The problem is that cops request no accountability (Via some manner.), and the local governments grants them that request by law and contract. Without a union, they’d still want the exact same thing, they’d still convey it to the local government somehow, (if only by op-ed in the paper), and the local governments would give them no accountability. It would perhaps be slightly more convoluted, but it would have the exact same outcome.

                Hell, it might actually be worse to not have unions involved…protections for police officers might migrate out of their contracts and into the actual law, even more than they already are. At least with unions this stuff has to get ‘renegotiated’ every few years, even if no negotiation actually happens.Report

              • DavidTC in reply to DavidTC says:

                Oh, and rather hilarious fact: The NYPD, while barred by law from going on strike, did have a ‘slowdown’ in 2014-2015 due to union negotiations.

                They rather ostentatiously stopped some of their ‘proactive’ policing. Note they’re already been forced to stop ‘stop-and-frisk’ a year earlier, and part of their union dispute was over _other_ things like that, when they generally just wander around hassling people.

                “Officers were ordered to respond to calls only in pairs, leave their squad cars only if they felt compelled, and perform only the most necessary duties.”

                The result? Crime went down.

                And by that, I don’t mean arrests, which also went down, but also actual complaints of crime. Less people reported crime during that time.

                ‘Analysing several years of unique data obtained from the NYPD, we find that civilian complaints of major crimes (such as burglary, felony assault and grand larceny) decreased during and shortly after sharp reductions in proactive policing.’


                Granted, it’s possible this was a hilarious organized attempt by criminals to make the police look bad, but…it’s also possible the police are, in fact, actually causing crime…or at least some of their methods of policing are.Report

              • George Turner in reply to DavidTC says:

                I would look into the types of crimes that dropped. It could be that people didn’t even bother reporting many crimes because it was pointless.Report

              • DensityDuck in reply to DavidTC says:

                “You don’t ‘fire everyone’ to destroy a union. You don’t fire _anyone_. You just have to refuse to agree to the union’s demand and hire scabs if they strike.”

                scab cops


                that’s a WONDERFUL IDEA

                that will lead to NO PROBLEMS WHATSOEVERReport

              • DavidTC in reply to DensityDuck says:

                scab cops


                that’s a WONDERFUL IDEA

                that will lead to NO PROBLEMS WHATSOEVER

                What, worse problems than actual cops?

                Addition: Oh, and a reminder: These cops wouldn’t have all their damn contract protection allowing them to get away with whatever they want. They might actually hesitate in attacking people, because they know they at least would get suspended.Report

              • veronica d in reply to Stillwater says:

                So, just as a point of reference, you think DeBlasio could fire the entire NYPD and “easily” replace those officers? Am I reading you right? Cuz this sounds like pure fantasy.

                NYC wouldn’t be a good test for this sort of thing, for obvious logistical reasons. Smaller cities can do it more easily. In any case, this will require political will. It will take time. It will take constant pressure.

                I’ll say this: the cops, including the NYPD, have shot “average folks” on their porches. They’ve fire smoke bombs into private homes, because the resident gave “refuge” to protestors. They’ve arrested people getting home late from work — and then held them in a parking garage basement for 10 hours without outside contact, bathroom facilities, or food. Normal people. Not antifa radicals.

                It’s plain to see that the cops are unhinged and brutal. Some of us have always known this, but now it’s hard for average folks to ignore — not when they’re getting the nightstick upside their head.

                A guy got shot in the head recently, by cops — of course by cops. He was dropped, out cold. His friends gathered him up and tried to carry him toward the cops, hoping to find medical care. The cops shot his friends too. They unloaded.

                Rubber bullets, of course. They’re “less lethal” — which means they’re still lethal.

                They eventually got the guy to a hospital. He has permanently lost sight in one eye.

                This is just a normal guy who decided he wanted to take a stand for black folks. He and his friends now know what the cops are.

                Fash is gonna fash. We can see on this forum no shortage of people eager to lick the boot. However, they were always that way. We know who the bootlickers are. However, they’re a minority, just as we leftists are a minority. It’s the average folks, who know that getting home late is something that can happen to anyone, and this is their first contact with “unmasked” fascists cops. (I mean, they’re perhaps literally wearing a mask, but you get my point.)

                We can change this. We can make it better.

                In short, fuck the police.Report

              • DavidTC in reply to veronica d says:

                I’ll say this: the cops, including the NYPD, have shot “average folks” on their porches.


                There’s a hell of a lot of videos that taken showing cop literally shooting people for no reason. People on _their own_ private property, who aren’t doing anything except vaguely filming what’s going on. Attacked by ‘non-lethal’ weapons for no reason except the police decided to.

                Non-lethal weapons were a bad idea to give police. I understand the concept, they could use them instead of lethal weapons…but instead, they have continue to use lethal weapons just as much, and use their non-lethal weapons to injure people with literally no repercussions…not even the very very slight repercussions of shooting people.

                And they do not use them correctly. Tear gas is allowed because police are supposed to use it _defensively_, aka, to stop people from going somewhere. To create a line people can’t pass and move back from. This is not how police use tear gas. They attack people with it. Using tear gas offensively is, rightly, a war crime.

                Same with rubber bullets. Designed to be bounced off the ground and hit people’s legs, not to be fired into their face.

                Take them away. Either it will reduce the violence…or the police might start firing their handguns into crowds.

                At which point it’s actual literal war.Report

              • JS in reply to veronica d says:

                The problem isn’t unions, the problem isn’t even local governance. The problem is American culture. The police do this because we, as a society, wanted them to. For generations.

                We wanted them to put the boot in to those who ‘forgot their place’. Minorities, hippies, dumb college kids,gays, etc. They were the enforcers not just of laws, but of cultural norms. Those beatings and occasional murders were meant to send a message — keep your heads down, respect your betters, do as you’re told.

                Problem is, they’re supposed to do it in dark alleys, where the occasional accident can be covered up.

                Can’t do that anymore thanks to cellphones — we all get to see the ugly — and society has changed so much that there’s no monolithic 50’s idyllic white society cultural norms to enforce — the white wall of silent approval, of “he had it coming, he shouldn’t have done that” is far less powerful.

                So police brutality is popping up more and more, and drawing more and more anger from the groups that traditionally could be called upon to support the cops, because cops were enforcing those traditional social norms because those groups are splintering on not just what those norms are, but over the very idea that people should be forced to adhere to them (laws yes, cultural norms NO).

                Which has folded into the militarization of the police, who feel under assault — not just by criminals (they’ve been trained to be more and more afraid of criminals and to act more and more violently from the get-go, a policing culture of fear) but by the folks that “should be supporting them” — so they’re lashing out at the ‘disrespect’ and ‘challenge to their authority’ because they’re feeling pressured in ways that they’re not used to, and they don’t like it.

                The problem with American policing is that we trained them, for generations, to use these methods to enforce unspoken rules of society. Then we stopped agreeing on what those rules even were, and started getting mad they were doing it at all, and started criticizing them — a group whose training tells them they are heroes whose lives are under 24/7 danger from every human being within 20 feet of them at all times, and that they are all that stands between America and chaos. Which is why they’re getting a new tank.Report

              • Chip Daniels in reply to JS says:

                This is why we need to attack this on multiple fronts.
                Not just the legal mechanisms like QI or civilian review boards but also the broader culture that valorizes the militaristic policing model, and a culture that views minorities and the poor as hostiles who must be suppressed.Report

              • Oscar Gordon in reply to JS says:

                Related: Do we need police?

                Short answer, yes.

                Longer answer – we need to stop asking them to deal with social problems. Which means we need to stop passing laws making such social problems illegal.

                And that means that we need to remember that just because a law is dressed up as health and safety, doesn’t mean it’s really about health and safety.Report

              • greginak in reply to Oscar Gordon says:

                I’ve seen people assert that we ask the cops to deal with social problems. I don’t think that’s true. We just don’t deal with the social problems. Cops have a place in dealing with some issues like DV. Resources to help DV survivors are often meager. The cops do their part but can’t help with housing, counseling, transpo or shelter. Cops can arrest drunk drivers but they can’t/don’t/ aren’t supposed to provide drug treatment.Report

              • Chip Daniels in reply to greginak says:

                In downtown the neighborhoods have created Business Improvement Districts (BID) and each BID has a team of uniformed safety officers who ride around on bikes and perofrm low level conflict resolution, like removing belligerent transients from stores, or checking in on homeless people and calling EMTs if they need medical attention, or just acting as general eyes and ears on the street which by itself reduces crime.

                Most street crime is really just the low level petty stuff- shoplifting, drunken scuffles and loud but verbal fights. The sort of stuff Broken Windows talks about, but rarely demands a fully armed response.

                It seems like there is a real opportunity to have an intermediary level of law enforcement which doesn’t come armed with body armor and helmets.Report

        • Jaybird in reply to greginak says:

          There is no one simple trick. There is an entire host of things that need to be fixed.

          They include:
          Police Unions

          Now, keep in mind, there are good reasons for each and every one of the things above.

          Hey, Police need advocates too! More money! More vacation and sick time! Better pensions!
          You’re allowed to make mistakes in your job, cops should be allowed to make mistakes in theirs!
          What? Are you saying that police should go into the job pre-doxed even though they’re fighting such organizations as Drug Dealers and The Mob?

          And, next thing you know, you can’t change anything.

          Because there’s no magic bullet. And changing one thing won’t fix it.

          Even in the face of egregious injustice.Report

          • Marchmaine in reply to Jaybird says:

            Civil Asset Forfeiture

            Need realign all the various incentives…

            Ultimately Policing needs reform as part of Criminal Justice reform. But now the problem isn’t a silver bullet, but not enough ammo.Report

            • Jaybird in reply to Marchmaine says:

              Yeah, and for any one of those, “that won’t fix it”.

              For any *TWO* of those, “that won’t fix it”.

              Hell, we could do all of that and attrition over the next 3 or 4 years wouldn’t appreciably change things.

              But if we did all of that and waited a decade, things might get better.

              Just in time for crime to kick in following the white flight that will follow 2020’s demonstration of the awfulness of cities to those who have learned that working from home is an option that might work in places like flyover.Report

  6. DavidTC says:

    Considering that literally every police officers is represented both by a union _and_ by insurance carried by the government, it seems utterly insane to somehow protect them from lawsuits against them existing _at all_. We don’t need to preemptively leap into action to do that. The entire concept is stupid. We let random people on the street get sued and have to fight it out in court, and they don’t have _two sets_ of lawyers on call.

    I would still actually allow police officers to short-circuit a case against themselves, not by dismissing it, but _redirecting_ it. I’d allow the lawyers for the police officer to make a claim that the officer was following proper procedure they had been given, and thus the suit must be directed at the government and not the officer.

    But it should still be the exact same suit. Or…maybe a better way to do that is to set it up where _both_ parties got sued, and _one_ of them is (maybe) allowed to drop out. And I say ‘maybe’ because, in some cases, neither of them should be allowed…if the police officer was not following procedure _and_ the police department knew that and knew they were likely to violate someone’s rights, they should both be liable.

    And, if an actual violation of civil right occurred (Whether or not it’s been stated as such in court before this point or not.), the same suit should _either_ find the police officer guilty (And maybe the department is also hit for knowing this was likely, if they did.), or find the government guilty and require the government to change the rules so the _next_ case finds the police officer guilty. There’s no damn outcome where the court says ‘Well, that seems like an civil rights violation, but it doesn’t actually matter.’Report

  7. Turgid Jacobian says:

    In the end I can only conclude that SCOTUS and the inferior courts have completely forgotten that there is a difference between “rational” and “reasonable.” That one can reason from a premise to a particular conclusion has nothing whatsoever to do with whether the premises chosen are, in fact, reasonable. A reasonable premise actually must take into account *both* the incoming circumstances *and* the space of possible conclusions.

    This is a desperate failure. It must be addressed.Report

  8. “But, your honor, here’s a clear precent for a police office being help liable for using his service revolver as a blunt instrument when there was no credible threat of violence.”

    “That’s not the same situation. It was at a Burger King.”Report

  9. Saul Degraw says:

    Governor Tim Walz asked Minnesota Attorney General Keith Ellison to handle to prosecution. Shortly there after, Keith Ellison amended the charge to be second and not third degree murder against Chauvin and the other three officers were charged with aiding and abetting murder.

    The Hennepin County DA was not that interested in pursuing charges by the looks of it.Report

    • JS in reply to Saul Degraw says:

      The incestuous relationship between police and prosecutors is a problem. I’m not entirely sure how to solve it, unless you build an entire police and prosecutor force whose sole job is to police the police.Report

      • Marchmaine in reply to JS says:

        Sure, there would have to be a Compliance Advocate General office that isn’t tied to the police for prosecuting other criminal complaints. Not sure what the case volume would be, or whether it would have to be Regional, Sate-wide, or multi-State. But yes, have to sever collaboration incentives.Report

        • InMD in reply to Marchmaine says:

          It’s an issue that needs to be thought out very carefully. Political pressure in the opposite direction can also lead to unsatisfactory outcomes.

          I know no one wants to hear this right now but I think upping the charge to 2nd degree murder could be a major strategic error.

          Maybe we have a lawyer here who knows if MN recognizes merger doctrine that can comment but I think there’s a real risk of overcharge, or at least would be in some places.Report

          • Stillwater in reply to InMD says:

            but I think upping the charge to 2nd degree murder could be a major strategic error.

            Yup. NAL, but Ellison was pretty clear that he upgraded the charge against Chauvin for the single purpose of being able to charge the other 3 officers. I believe he’s pretty explicitly stated that. He’s also primed the public for an acquittal by saying it’s very hard to convict cops. Seems to me he’s letting his politics get ahead of pragmatics but (quite literally!) what do I know? Just a vibe I’m getting.

            Add: saying that I’m 100% on board with his politics.Report

            • George Turner in reply to Stillwater says:

              Other video angles and sources have come out, and reportedly, in one Chauvin replies to his partner who’d said “Why don’t you roll him on his side” by saying he was holding Floyd on his stomach like that so he didn’t go into seizures.

              If true, that completely destroys both the case and the narrative.Report

              • Jaybird in reply to George Turner says:

                The narrative no longer matters.

                We’re now in a place where we’ve seen an entire country full of police engage in repression tactics against any and everybody.

                There’s a whole lot of moral authority being flushed down the toilet by cops who, at this point, aren’t demonstrating that they’re worthy of the unaccountable power we’ve given them for decades.

                They’re acting like minorities have always told us they acted when we weren’t looking.Report

              • Stillwater in reply to Jaybird says:

                Yep. What began as a protest against a cop killing an unarmed black man turned into a protest for charges to be filed which turned into a protest against prosecutors systematically *not* charging cops who kill black men which turned into a protest over police brutality as a systemic problem in America which the cops confirmed by engaging in police brutality against people peacefully protesting police brutality.Report

              • George Turner in reply to Jaybird says:

                Hot take: “Well, from many of the videos, the cops have been assaulting elderly white people, young white people, and middle aged white people. New York just suspended two officers for assaulting an elderly white man for no reason at all. He was there, alone, so they pushed him and he cracked his skull! We need to tear down the anti-white police culture and get them to focus on actual criminals! Just today Joe Biden said that 10 to 15% of the population just aren’t good people, and I think we can all guess (*looks at Census Bureau data*) who he’s talking about *wink wink*.”

                Ya gotta love the gaffe machine. ^_^

                The riots have been presenting a counter narrative, where your last sentence would be rewritten as “Minorities are acting like cops have always told us they’ll act without a firm police presence.”

                The problem with the protests and riots is that they completely dominate the video coverage, and they constantly present evidence of that counter-narrative, reinforcing it over and over when it should not exist at all.

                If the evidence does end up showing that Chauvin was actually trying to help Floyd, there will be lots of egg on lots of faces, and lots of people who will sit back and think it doesn’t matter what we do to reform policing because the looters are always going to make up some excuse to go looting.

                This is why I’ve said the riots are setting race relations back by many decades. A lot of people at home might be concluding something entirely different about events than what the media, politicians, and celebrities want them to think. A significant number of them might be sitting in their recliner, watching the news, and saying “Archie Bunker was right about everything!”Report

              • Jaybird in reply to George Turner says:

                Hey, arguing “the cops aren’t racist, they treat everybody like this!” is less of a defense against the cops than you’d think.

                I suppose it’s a defense against the people defending the cops (“see? we’re not racists defending a racist institution! They treat everybody like that!”) but that’s beside the point.

                Which is that the cops need a serious overhaul.

                Like, we need to redo the stuff the unions get in their bargain (make the unions into something that only nutball libertarians could oppose!), rethink QI, rethink transparency, rethink revenue enhancement, rethink confiscation, and rethink the cop *CULTURE*.

                And, sure, the possibility exists that there is a universe in which George Floyd’s death was not captured on camera in which they found that the officer did nothing wrong.

                But we can’t use the argument that it’s possible that the officer did nothing wrong in the current framework.

                The cops are too busy treating everybody the way they only used to treat the poor.

                The pendulum finally swung too far. It’s going to swing back the other way now.

                (Good thing the crime numbers are as low as they are.)Report

              • George Turner in reply to Jaybird says:

                Well, the mayor LA promised some sweeping reforms, such as requiring cops to intervene if another cop is using excessive force or acting inappropriately, and ensuring that all police are free to disobey orders they feel are unwarranted, and free to report the conduct of other officers.

                Then some police leaders in LA pointed out that the mayor was conning the protesters, because LA cops already had all that. But I’ll give the mayor points for buying off the crowds with promises of something they were just too dumb to know they already had. 🙂

                I figure we’ll get lots of reforms so we can feel morally superior, while the poor communities get overrun with crime and skyrocketing murder rates, just like Baltimore. We’ll blame the chaos on nebulous unconscious racism or the legacy of one thing or another, and just look the other way as the meth and fentanyl and blood keep on flowing, happy that Asian cops are no longer being accused of racism.Report

              • Stillwater in reply to Jaybird says:

                Earlier I was going to write something about how powerful the visual of Buffalo PD pushing a 75 year old man to the ground and then walking by as blood from his head spills onto the pavement was, both in terms of capturing a mood but also in terms of shaping public sentiment on the issue of cop violence. But I didn’t!

                So instead I’ll post this:

                I’m told the entire @BPDAlerts Emergency Response Team has resigned from the team, a total of 57 officers, as a show of support for the officers who are suspended without pay after shoving Martin Gugino, 75. They are still employed, but no longer on ERT


              • Also, the McMichaels were trying to tell Arbery that he was headed towards a closed road, but he wasn’t paying attention (earbuds in, sound cranked). He was running too fast to catch up with on foot;, so they had to use their trucks. Then they fired a shotgun to get his attention, but, still completely oblivious to the outside world, he ran into the blast. Now they’re being punished for their helpfulness and his negligence.Report

            • Em Carpenter in reply to Stillwater says:

              I don’t think that makes much sense. The other three could have easily been charged with aiding and abetting third degree murder too, or even the second degree manslaughter charge. https://www.revisor.mn.gov/statutes/cite/609.05Report

              • Stillwater in reply to Em Carpenter says:

                Quite right!

                I’ll stop talking about legal stuff now. 🙂

                (Though I’m curious how I got the mistaken impression the two things were tied together…)Report

              • George Turner in reply to Em Carpenter says:

                If Chauvin did tell his fellow officer that he was holding Floyd on his stomach so he didn’t go into seizures, as another video seems to indicate, the murder case will collapse. At most you’d have a policeman who relied on his personal experience with drug overdoses and took the wrong actions while waiting for EMT’s to arrive. Severe respiratory depression and seizures are known effects of a fentanyl overdose, and Floyd had fentanyl in his system. Floyd was also complaining of breathing difficulties long before the officers placed him on the ground.

                If the jury so finds, Minneapolis and other cities will of course burn down yet again.Report

              • Em Carpenter in reply to George Turner says:

                Derek Chauvin did not know that Floyd had fentanyl in his system. A knee to the neck and a face shoved into pavement is not seizure prevention protocol. And if he was already complaining of breathing difficulties, Chauvin’s actions and disregard for that are only more egregious.Report

              • JS in reply to George Turner says:

                “If Chauvin did tell his fellow officer that he was holding Floyd on his stomach so he didn’t go into seizures,”

                Hi! I have seizure disorder, and have had it my whole life.

                What you just said there? That is such absolute BS that I cannot fathom anyone smart enough to spell their own name falling for it.

                One does not “hold someone down” to prevent seizures. It won’t prevent seizures. One does not hold someone down to “help” with seizures — you’re just going to make the damage worse. (For the record, you also don’t put something in their mouth). Restraints for seizures are ONLY for when the patient might injure themselves worse than the injuries they will sustain from you holding them down (such as falling from a height, seizing near moving machinery, etc) or to hold them down for an injection — after which they’re released to let the medicine do it’s work.

                No one in the midst of a seizure can speak. Floyd was speaking. There is no mistaking a seizure. Floyd was not having one.

                I really cannot stress enough how incredibly, deeply, amazingly stupid the phrase ” he was holding Floyd on his stomach so he didn’t go into seizures” is, and how incredibly, deeply, amazingly stupid someone would have to be to believe that someone meant it.Report

              • JS in reply to JS says:

                To go ahead and add to this: No police officer, EMT, public servant, or person in the whole US is trained, taught, encouraged, or in any way told that “holding someone down so they don’t have a seizure” is a thing one does.

                What you just said was the equivilant of Chauvin cutting Floyd’s throat on live TV, and then claiming he was only trying to get the drugs out of his system “by letting all the drug tainted blood out. It’s sad he died, but I was only trying my best to help him medically”

                THAT is how effing stupid that statement is, and I don’t think you believe it’s true — yet you’re pushing that BS anyways. Pathetic.Report

              • George Turner in reply to JS says:

                The trouble with your arguments is that apparently Chauvin is on camera saying exactly that in reply to his fellow officer asking him why he didn’t roll Floyd on his side. Even if he was 100% wrong, it destroys the murder case because it provides evidence that Chauvin was trying to help Floyd by doing exactly what we saw on the one camera view.

                You could have video of a policeman butchering someone’s neck with a knife, and a photo of a body with a knife wound to the neck, but if you have a tape where the cop is telling his fellow cop “I have to perform an emergency tracheotomy!”, you will never get a murder conviction, at least not without a tape of the cop’s laughing about how they say “tracheotomy” whenever they murder somebody.

                Derek Chauvin did not know that Floyd had fentanyl in his system.

                Yes, he likely did, since he’d been speaking to him and the other’s who were in the vehicle with Floyd. Chauvin had known Floyd for years, so it’s very likely they had some initial discussions.

                One of the cops suggested rolling Floyd over on his side, which is another standard response for someone who is overdosing, to keep them from choking if they vomit. There is no other reason an officer would suggest doing that. If they didn’t think Floyd was OD’ing, they’d have just put him in the back of the patrol car and taken him downtown. In fact, they’d already tried that with Floyd. That hadn’t gone well, possibly because Floyd had some kind of seizure while he was in the back seat, which is why they pulled him back out of the patrol car and put him on the ground.

                Note that this new narrative makes sense of the various actions we see in the tape, whereas the “let’s just kill this guy on camera because he’s black” doesn’t really make sense at all.

                That provides Chauvin’s defense attorney a very strong and compelling story, one that seems far more likely than the prosecutor’s version of events. This new version would also comport with the first prosecutor saying he didn’t see any grounds for any charges against Chauvin at all.Report

              • Chip Daniels in reply to George Turner says:

                “This guy was seizing and having trouble breathing. So instead of calling an EMT, I put him on the ground face down and then knelt on his neck for 8 minutes.”

                “Why didn’t you throw him in the water and see if he floated?”

                “Well, that’s just silly. He didn’t show any signs of witchcraft.”Report

              • George Turner in reply to Chip Daniels says:

                They were waiting on the EMT’s. If they wanted to take him to jail, they wouldn’t have taken him out of the back of their police car, which is where he was prior to the clip everyone was showing you.

                The exchange between Chauvin and the other officer was about how best to deal with someone who was OD’ing. One officer thought putting Floyd on his side was best, which would help with choking, while Chauvin said that keeping him on his stomach would help with seizures.

                Notice that this conversation is in an entirely different universe than what everybody is protesting about, where officers try to murder black people – just because white supremacy, etc.

                This is a sharp dogleg turn that’s going to throw many people completely out of the vehicle!Report

              • Chip Daniels in reply to George Turner says:

                And where in first aid handbooks would I find kneeling on his neck as a treatment for seizure and breathing difficulty?Report

              • George Turner in reply to Chip Daniels says:

                How much pressure was he applying? What had he been told by the first responders on the front lines of the heroin epidemic? What had he learned in his experience dealing with people who’d OD’d?

                If the video evidence of this new narrative is accurate, a jury wouldn’t even convict on negligent homicide, much less murder two.

                Aside from that, if the new story hold up, it means all this violence, looting, arson, and murder was because a police officer tried to save his friend, and a bunch of people went crazy over a video clip they didn’t understand in the least. There are no police reforms that will prevent that from recurring.Report

              • Chip Daniels in reply to George Turner says:

                So, kneeling on a seizing patient’s neck who complains of breathing trouble…not a recommended treatment then?Report

              • Oscar Gordon in reply to George Turner says:

                Maybe you are right and there is a good Samaritan defense.

                But the thing is that regardless of the defense, police should be subject to the same judicial process an unbadged citizen would face. Which, in this case, is happening, because there is video.

                If an officer causes grievous bodily harm or death, absent a clear affirmative defense, they should stand trial just like any other citizen.

                If they want to be judged under a different legal framework, we can always put them under the UCMJ.Report

              • Chip Daniels in reply to Oscar Gordon says:

                What I find interesting about this stretched-to-the-absurd defense of the officers, is what it suggests about criminal defense in general.

                In this incident we have cell phone videos from a couple of different angles all showing 10 minutes or so of clear video and audio. We have dozens of witnesses all testifying to the same facts. We have everything but a book entitled “Choking Suspects And Me, It Is My Bag Baby”.

                And yet…here we have people insisting that what we saw doesn’t tell the story, and we can’t possibly determine guilt.

                If this is true here, wouldn’t that be true generally? Like, for every single person accused of a crime, how can we possibly determine them guilty, when there is no video, no crowd of witnesses?

                What if we granted every accused criminal the degree of presumption of guilt we are applying here?Report

              • InMD in reply to Chip Daniels says:

                If we treated all accused the way we treat cops I think we could feel quite good about ourselves as a society and we’d have a lot less to argue about with respect to criminal justice. There are many, many reasons we don’t but let’s also be realistic. Part of it is that everyone has their list of exceptions to the presumption of innocence. Way too many people make them for poor urban black people. But check out the coverage next time some rich old white guy is ‘credibly accused’ of a sex crime and you get the full flavor. Assuming they aren’t the Democratic presidential nominee of course.Report

              • InMD in reply to InMD says:

                And to be clear I mean with respect to giving the benefit of the doubt, not being so deferential as to facilitate miscarriages of justice.Report

              • DavidTC in reply to George Turner says:

                Aside from that, if the new story hold up, it means all this violence, looting, arson, and murder was because a police officer tried to save his friend, and a bunch of people went crazy over a video clip they didn’t understand in the least. There are no police reforms that will prevent that from recurring.

                Uh, yes, there is. Less utter damn morons as cops might help your hypothetical. Like…maybe we shouldn’t have cops that are extremely extremely stupid and think they should apply ‘medical aid’, in _violation_ of the wishes of someone else, that kills them. A thing that is *checks notes* MURDER, _even if_ the person doing somehow thinks it’s the best treatment.

                Seriously, if I walked up on someone having what I thought was a seizure, and wrestled them to the ground and held them down by their throat, while they yelled at me not, and those actions resulted in their death…that is outright actual murder. My ‘intentions’ there don’t matter one bit, because giving ‘medical aid’ against someone’s wishes is BATTERY, and killing them during battery is MURDER. (And…also…you can’t just decide that choking someone is ‘medical aid’, but that’s sorta besides my point here…you couldn’t do it even it if was actual medical aid.)

                This is a bullshit argument, George. Just flatly stupid. The hypothetical you have described is STILL MURDER.

                Also…the actual thing going on isn’t related to him anymore. What actually got people up off their asses is what white protestors started wandering in, and this time, cops _couldn’t contain their violence_. Which meant more white people started seeing other _white people_ get attacked by the police, and they showed up more, and at this point it’s spiraled.

                This is because cops are apparently incapable of pausing and saying ‘Hey, we need to be on our best behavior here.’. They still can’t do it, even when people are at the point of seriously talking about abolishing them. They cannot stop, because they are too used to be completely unaccountable.

                Other protests fizzled out because cops reacted in somewhat reasonable manners once everyone (by which I mean white people) started looking at them. Not this time.Report

              • George Turner in reply to DavidTC says:

                So when someone is OD’ing, the police shouldn’t be allowed to give them Narcan without their permission? Wouldn’t that be negligent homicide?

                Floyd was saying he couldn’t breathe before they even put him in the patrol car, when he was standing up. He was saying it after they took him out of the patrol car. It had nothing to do with the knee because he was saying it even after Chauvin was holding him down. He couldn’t breathe because he had overdosed on fentanyl, not because he was on the ground.

                Just because a bystander doesn’t understand what’s going on doesn’t mean we should accept his narration like he was Leonard Nimoy describing an alien autopsy.

                You could provide the same ignorant narration of a lifeguard hold used to get a drowning swimmer back to shore. “OMG! Bro! You’re choking that dude out! Let him go bro! Are you a racist?! You’re murdering that swimmer! Let go of his neck bro!” The lifeguard gets the swimmer to shore and then you hear “Bro! Why are you beating on that guy’s chest! You’re going to give him a heart attack bro! You done choked him out in the water. Hey everybody, that lifeguard is killin’ that man! Why don’t somebody stop him?! See! That guy ain’t breathin’, bro. You feel proud of yourself? You killed that man!” And then boom, the mob puts the lifeguard on trial for murder – because they listened to a moron narrate events.Report

              • DavidTC in reply to George Turner says:

                So when someone is OD’ing, the police shouldn’t be allowed to give them Narcan without their permission? Wouldn’t that be negligent homicide?

                Do you need someone to explain how medical consent works?

                Hint: ‘Without their consent’ is not the same thing as ‘Against their consent’. People who are unconscious or unable to communicate in any manner are assumed to have given consent to lifesaving medical treatment, at least until they regain consciousness.

                Ignoring the fact that, again, kneeling on someone’s throat is not a medical treatment: George Floyd not only not unconscious, but he was _fighting_ what was going on. He’s literally saying to let him stand up.

                Again, and I find it astonishing I have to repeated: It is assault to give people medical treatment who are rejecting that treatment.

                Even if it’s actual proper medical treatment, which this wasn’t, and even if it’s necessary to save their life, which…which this clearly wasn’t.

                They do in fact have to legally stand there and watch them die. If they do give the treatment against wishes, it’s assault and battery. If that treatment kills someone, it’s murder, because killing someone during a felony is murder.

                The only exception would be something like _court-ordered_ involuntary commitment, where medical professionals have been granted the power to intercede against their wishes.

                You can’t use this as some loophole, George. The thing that people have apparently started making up(1) to justify murder is ALSO LITERALLY FELONY MURDER.

                1) And, this defense is, let’s be clear, entirely made up, because again, kneeling on someone’s throat is not a medical treatment, but I won’t even go into that, because it doesn’t matter.

                Addition: Hilariously, this is a actually really bad legal argument and I hope the cops make it. Why? Because…cops get a lot of power in their justification of force, and how they can use against threats. But the second they start saying ‘It was a medical thing I was doing, it had nothing to do with feeling threatened or anything’…he no longer no longer has his magical powers of qualified immunity that he can handwave at courts. He’s just some asshole without that decided to attack someone for a forcible medical treatment.Report

              • DavidTC in reply to DavidTC says:

                BTW, I want everyone to imagine that protestors started believing this nonsense…believing that the cops were forcing medical treatment on George Floyd against his wishes. I just want us all to pause and imagine that reaction. Like, ‘Oh, so this wasn’t police brutality, this was more like…the Tuskegee syphilis experiment? Or maybe more the large scale of unwilling sterilization of black woman?’

                Someone on the frothy right actually sat there, and thought about this and said: We’ll just say the cops are forcing medical treatment on this black guy. Let’s go with that. That’ll knock the winds out of the protestor’s sails. Black people don’t have any problem or history with medical treatment against their wishes, do they?

                Like, holy shit. I literally am laughing so hard I’m finding it hard to type, this is such an astonishingly stupid defense the right-wing has cooked up.Report

              • veronica d in reply to DavidTC says:

                Dude, why are you even engaging with this conspiratorial diarrhea? It’s clearly idiotic to the point only a Trumpaloo would pretend to believe it. It’s on the same level as claiming that the cop was being mind controlled by a rogue band of Rick and Morty fans using Zorn Rays.

                The proper response is to laugh and point at the dipshits, while taking to the streets demanding justice.

                We have moral weight. They’re showing the world their ass.Report

              • DavidTC in reply to veronica d says:

                Dude, why are you even engaging with this conspiratorial diarrhea? It’s clearly idiotic to the point only a Trumpaloo would pretend to believe it. It’s on the same level as claiming that the cop was being mind controlled by a rogue band of Rick and Morty fans using Zorn Rays.

                I know, I just wanted it out of this discussion. Otherwise, he’d keep popping up with this ‘justification’ forever, like he does. Trying to claim ‘Oh, it was just medical treatment’. I’m hoping that ‘So you’re claiming this was explicitly murder via a non-consensual medical treatment that caused death, and not something he did to restrain a suspect?’ will…shut him up for a bit.

                The proper response is to laugh and point at the dipshits, while taking to the streets demanding justice.

                I promise, that is what I was doing. Laughing and pointing. This was such a surreal defense.

                We have moral weight. They’re showing the world their ass.

                At some point the psychology of cops gets a little amazing. The police are literally unable to stop themselves doing this stuff right in front of everyone.

                Some of them did manage to pause and get some photo ops the first few days, which people fell for at the time. They managed that much.

                But eventually, they all started attacking the people who protested them. They can’t even confine themselves to black people, as is traditional, so a bunch of white parents are, for basically the first time in this country’s history, sitting around concerned that their kid, who is out protesting, will actually be injured by the police. Or maybe even killed. The police suddenly just…utterly failed at keeping their violence out of sight and mind of the average white person, and the entire system suddenly became up for debate. Should we let police act like this? Should we have police at all? I have never even imagined anything like this just suddenly happening.

                And part of it is the virus, giving people free time and making tension high, but…I think a lot of it is to with Trump, and the fact conservatives have gotten used to saying the quiet parts aloud. So cops started _doing_ the quiet aloud…or, rather, to people that are not easy to dismiss. And…it was a bit too far, especially when directly comparable to the protests a few weeks ago where the cops let the protesters get away with anything.

                The media is still slightly reluctant to air a lot of the violence, and if you watch _only_ the you can still perhaps believe this isn’t what it is…a police riot. But the media is no longer in charge of the message.Report

              • George Turner in reply to DavidTC says:

                The people saying that the cops were trying “medical treatment” were the cops there who seem to be discussing that very thing. That’s why they had that little exchange about the best way to orient Floyd. They do things like that when awaiting the EMT’s, and they ignore people who are wacked out of their minds. They do it with drunks all the time.

                “Sir, are you going to vomit in my cruiser?! Okay, I’m gonna hold you like this till you’re done puking.” Holding someone in a particular position is not exactly “medical treatment”, it’s something they can do to keep people from drowning, choking, bleeding out, etc.

                Are you guys determined that black people ODing on heroin must be allowed to die? I’m not sure that’s a good hill to defend.Report

              • DavidTC in reply to George Turner says:

                So…you are too dumb to shut up here.

                ‘Wacked out’ is meaningless. The legal line in an emergency is ‘Do they seem to want this medical treatment’. (Consent should be more informed in non-emergencies, but that’s how it works in an emergencies.) I am certain cops are not rescuing people from drowning against their wishes. Although that’s not a medical treatment anyway. Cops can pull people out of the water even if those people don’t want to come, they have a right to detain people, and they can detain them from the water. They can direct someone’s vomit, also not a medical treatment.

                They couldn’t give someone CPR against their wishes…although people who need CPR are unconscious, so it doesn’t come up.

                Holding someone down by the neck to ‘help with seizures’ is something else entirely. Were they trying to accomplish a medical outcome? If so, it’s a medical treatment. Maybe. I guess? I’m honestly not sure, you’re the one trying to _claim_ it’s a medical treatment…and then you’re not. You’re trying to walk an imaginary line where cops can do whatever they want, outside of the rules, if they just claim it’s for medical purposes, it’s not under ‘cop rules’ and thus allowed.

                Except…medical treatments against people’s wishes are not legal.

                Either they were holding him how they were holding because they felt that was legitimate way to restrain a prisoner, or they were trying do some sort of medical thing he was clearly rejecting. There’s no middle ground there, it’s an either/or question. Either he was forcibly being given unlawful non-consensual medical treatment, or he was being held in an disallowed restraint merely as a prisoner. You can’t argue both…well, maybe you could, but you can’t argue _neither_.

                And…I’m done. You go have your hallucinatory fun, where you defend a police excess via claiming is is a merely felony murder via unlawful violation of someone’s medical autonomy.Report

              • DavidTC in reply to DavidTC says:

                It is perhaps worth pointing out: All this is bullshit anyway. The cops were not talking about seizures or vomiting. One of the cop just mentions ‘Excited delirium’.

                From Wikipedia: Excited delirium, also known as agitated delirium, is a condition that presents with psychomotor agitation, delirium, and sweating.[1] It may include attempts at violence, unexpected strength, and very high body temperature.[3] Complications may include rhabdomyolysis or high blood potassium.[1]

                Note all the footnotes…Wikipedia is not sure this exists. Neither are doctors. But if it does…there’s no vomiting, there’s no seizures, there’s no possible thing in that vague condition that would have anything to do with the position of the person, except possibly the overheating thing…which would seem to indicate they shouldn’t be knelt upon.

                If you actually read the exchange in the article, it is…one cop making a reasonable if dumb suggestion about something that probably really isn’t a thing but cops are trained that it is, that Floyd should be put on his side…possible for overheating concerns…and Chauven asserting ‘that’s why I have him on his stomach’, which is an interesting response to that.

                I.e., what the conversation seems to show is one cop showing vague concern about a medical situation, and Chauven either speaking gibberish or possibly implying he’s trying make Floyd condition worse. (More likely, he is just talking gibberish.)

                This isn’t even ‘wrong treatment’. This is ‘a treatment for a probably not quite-real thing that Floyd didn’t have, in a manner that would obviously make it worse if he had’. If cops can do this, they can shove people underwater and claim they were saving them from drowning.

                But my actual point is: George Turner decided to make claims about ‘seizures’ and ‘vomiting’ and linked to an article that doesn’t say anything about the police saying anything about seizures and vomiting.Report

              • Arbo1876 in reply to DavidTC says:

                Doctors can not diagnose excited delirium, it is on micro scale, cells etc. But it is known in science Excited Delirium Syndrome. Syndrome means it is accepted, but it can not be explained by science yet.In Europe we know about it. What are the problems in USA? The million dollar business system in US Justice.
                Just google on it, you will find it in scientific journals.. Police officers in many countries are trained, I do have video of of Fire brigade instruction video of USA.
                Floyd already stated he had breathing issues when he was STANDING on the other side of the car. He was claustrophobic.
                Also weird that no one is talking about acidosis, this can be one of the symptoms. And is very well known, easy to check … but missing in autopsy report …
                Too much H2CO3 in blood, H2CO3 H2O + CO2.
                Hart will pump wild, want to get CO2 out of blood. And yeah, more hemoglobin will pass lungs still containing CO2. But also more CO2 is released in lungs … resulting in “I can not breath”.
                Ambulance was called code 3… Why would you call ambulance when you only have to say to colleague, get knee of neck.Report

              • Arbo1876 in reply to DavidTC says:

                high blood potassium … Indeed missing in autopsy report as well. Cells contain potassium, when potassium is released, there is a serious problem. Ion-channels are not functioning, potassium is in fact a signal for a standard delirium.
                Violence … struggle in car … Floyd got out, but was fixated on ground.

                Were the officers trained? Because in the USA there is a lot of discussion. In one state yes, in other state no? And you are talking about side position, perhaps they should have done that. Problem can be that patient starts to fight again, and that makes it a lot worse.
                Excited delirium is not easy to deal with. And indeed, it can happen in many ways. Panic can be the trigger, and then it goes out of control. But every person can act different. It is not so easy as a hart attack.

                Truth is doctors talk a lot, but doctors do not know HOW a medicine works. Still they do prescribe it.

                This is the other way round. Lot of things are happening in body, cascading effects, depending on the chemicals in the body at micro level.Report

              • Arbo1876 in reply to DavidTC says:

                No CPR response for 90 min. I am not surprised, I miss things in autopsy report. But next time give each cop medicines with them so they can apply an infuse with Na2CO3 … Ketamine injection would also be nice. But can you expect cops to do this?
                I think they were waiting for ambulance to come, why does it takes so long?
                And I did see they put him on stretcher at once, no CPR on street. Did they hear excited delirium? Because CPR is meaningless, give medicines and get him into hospital. Without medicines, brain will never get enough O2.Report

              • Reading this comment, and the fact you actually hit reply on it, makes me sad for you as a person.Report

              • Em Carpenter in reply to George Turner says:

                Where is this new video? I’m looking and not finding it anywhere. Have a link?Report

              • George Turner in reply to Em Carpenter says:

                I ran across it yesterday at Heavy.com, but didn’t dig any deeper. CNN mentioned yesterday that new videos had emerged, which likely refers to the same raw sources.

                I haven’t seen a mention of it since then, but I also haven’t looked. If no news sources are talking about it, either the Heavy story can’t be backed up or it so confounds the media narrative that they’re still trying to cope with the implications.Report

          • Em Carpenter in reply to InMD says:

            I did a write up on the charging statutes, but didn’t want to get into the weeds on lesser included offenses because I am not up to speed on Minnesota law. I might try to see what I can find out.
            In the meantime here’s my piece on the various murder/manslaughter charges against them and their differences.

      • Stillwater in reply to JS says:

        Ideally, DAs would work closely with police departments in the collection of evidence sufficient to warrant charges against citizens in the general population etc and so on *BUT*, due to conflict of interest, would be prevented from prosecuting (or not) cases involving cops. So, yeah, you’re right there’s a big problem here, and you’re right that there’s no *easy* fix for it.

        It’s the age old problem.Report

      • Brandon Berg in reply to JS says:

        I’m not entirely sure how to solve it, unless you build an entire police and prosecutor force whose sole job is to police the police.

        That sounds like a reasonable thing to do. Have a state-level office that only handles investigation and prosecution of police misconduct. The offhand way you mentioned it made it sound like you don’t think it’s a viable idea—is there some reason why, or am I just reading too much into the “unless?”Report

  10. Oscar Gordon says:

    Speaking of QI and other shenanigans, Balko has a good piece up today about no-knock warrants and how they are abused (and why).Report

  11. Saul Degraw says:

    Here is another problem about QI that we are not discussing here, police get away with a lot of stuff because they are popular. There are strong forces in our society and culture which mandate trust of the police. Almost all of popular culture has treated police as unassailable paragons of ethics and virtue for decades. There are exceptions like the Shield and The Wire perhaps but those are rare and also present a very complicated anti-hero look and the show implies sometimes only a bad cop can stop bad guys.Report

    • CJColucci in reply to Saul Degraw says:

      I’ve long wanted to see a cop show based on an Internal Affairs unit — maybe called The Rat Squad or The Cheese Eaters — but I don’t think Dick Wolf would be interested.Report

    • Brandon Berg in reply to Saul Degraw says:

      It’s not just that police are popular (and are they, really? How many people have never had a traffic ticket?), but also that they mostly deal with people who are pretty scummy. If there’s a he-said/he-said dispute between a police officer and some punk with a rap sheet, and you have ambiguous evidence, or none at all, to settle the issue, who are you going to believe?Report

  12. Truth says:

    QI just needs to go. It’s been used to decide that someone CAN’T SUE A POLICE OFFICER FOR MALICIOUSLY LETTING A POLICE DOG MAUL HIS FACE because there is no “constitutional protection against having your face mauled while you’re in handcuffs” or some such garbage.


  13. Oscar Gordon says:

    CATO has a good article on how CRBs are made useless, even in liberal strongholds.

    • Chip Daniels in reply to Oscar Gordon says:

      I’ve seen versions of this critique before, where a CRB is just a thin veneer applied over the basic structure of self-policing in the department.

      Disciplinary procedures need to be removed entirely from the police department and handed to an outside agency that can terminate them.Report

      • Jaybird in reply to Chip Daniels says:

        Sounds like the critique may have been accurate.Report

        • Chip Daniels in reply to Jaybird says:

          Its also tied to public support.

          Like how police commissions themselves are intended to oversee the department yet are invariably staffed with people who turn a blind eye to misconduct.

          Or how elected police chiefs could in theory be used to provide oversight, but the candidate who is most enthusiastic about getting “tough on crime” wins.

          I’m hoping that in future elections, promises to “get tough on police brutality” will be the winning slogan.

          “A public Zoom call hosted by the Los Angeles Police Commission to discuss the George Floyd protests didn’t go well for the department. In a session that lasted nearly nine hours, caller after caller harshly criticized the LAPD’s response to the protests and demanded that LAPD Chief Michel Moore resign.”

          • Jaybird in reply to Chip Daniels says:

            I’ve seen versions of your suggestions before.

            I am on board with instituting them for real this time.

            The main thing we have to worry about is that crime (and I mean *REAL* crime) doesn’t go up in the months following police reform.Report

    • Brandon Berg in reply to Oscar Gordon says:

      Making it state level and giving it actual prosecutorial power seems like it would address some of these issues, especially if citizens get to appeal IA decisions.Report

  14. Chip Daniels says:

    Maybe a letter writing campaign would be helpful.

    President Donald J. Trump
    1600 Black Lives Matter Avenue
    Washington DC 20500


  15. Philip H says:

    And now it seems NYC is finally removing QI from its officer’s tool boxes, much to the expected consternation of said officers:

    But one of the most powerful moves by the council was eliminating qualified immunity. The term refers to a legal principle that protects government officials from civil suits alleging they violated a person’s rights — and which is a hotly debated topic across the country. By creating a new local civil right through legislation, New York City residents will be protected against unreasonable search and seizure and excessive force, and bans officers from using qualified immunity as a defense.