From Forbes’ Subblogs: Cop Who Led Accidental No-Knock Raid Against 78-Year-Old Grandfather Can’t Be Sued, Court Rules

47 thoughts on “From Forbes’ Subblogs: Cop Who Led Accidental No-Knock Raid Against 78-Year-Old Grandfather Can’t Be Sued, Court Rules”

1. It’s that last part: “Adding to the Kafkaesque absurdity, the ruling against Norris is also unpublished, meaning that in the Eleventh Circuit, it’s still not “clearly established” that raiding the wrong home at gunpoint is unconstitutional.”

   Qualified Immunity must be reformed.Report

   1. Defund the police. Full stop. Rebuild from the ground up. You can’t reform your way out of excessive stupidity like this. And clearly the courts want to remain head in the sand about it.Report

      1. Given the goings-on with the murder rate, I’m not sure that “Defund the Police” will work.

         Especially given the cognitive dissonance between the people who alternate screaming “DEFUND THE POLICE” and “PASS GUN CONTROL LAWS”.

         “Reform Qualified Immunity” has the benefit of a dozen horribly egregious examples to provide people who ask “Why?” as well as being able to provide to people who argue that QI doesn’t really protect that many cops.

         It also doesn’t sound like it was workshopped with the old guys who used to staff COINTELPRO.Report

         1. Like Donald Trump, the murder rate is a symptom. Unlike Donald Trump, its root causes are actually easy to wrestle with should we choose to do so. That and statistically , its not actually up historically:

            https://www.nytimes.com/2021/03/16/upshot/murder-rate-usa.htmlReport

            1. Sure. But we’ve got an order-of-operations problem.

               If we want to fix things like the problem in the story, we have to tackle something like “We need to reform the bathwater” rather than “Just dump the entire tub out the window!”

               The latter is a good way to have fewer Spanbergers yelling about how close the election was during the next minority caucus conference call.Report

               1. And what I’m telling you is we can’t reform the bathwater. It won’t work. It won’t achieve the objective.Report

                  1. I agree that there are somewhere around a half dozen things that need reform… and QI is only one of them and even if we did reform QI, it wouldn’t fix the problem.

                     But stories like the one above move QI closer to the low-hanging fruit column. I think that it is, in fact, achievable.

                     But it’ll require people fighting for it rather than getting rid of the police entirely.Report

                  2. I doubt it. The courts were handed an easy “oops” to make an example out of the cops over, and they declined to do so. Your story shows how easily cops get off even when they screw up. it changes the QI narrative NOT ONE Wit.Report

                  3. Before you can rebuild from the ground up, you have to have a viable plan for that. Even the people most likely to support that idea will balk at the sudden loss of the police if the only thing to fill the void is a promise of something better.

                     I see lots of ideas floating around, some of them pretty good, but none of them representing an actual plan.Report

                  4. https://www.upworthy.com/americas-most-dangerous-city-defunded-its-police-department-7-years-ago-it-was-a-stunning-successReport

                  5. It’s still “Police”, even if they re-worked the mission. Also, medium sized city can do what a major metro can not.

                     But it is something to look at, and IMHO, it’s something that should be done every 20 years or so, in every town.Report

         2. I wonder how many murders police prevent? Even the clearance rate is pretty abysmal. https://www.chicagotribune.com/news/criminal-justice/ct-chicago-police-2020-clearance-rates-20201215-2evyuaybxbcvxex7s4wlvrx62q-story.htmlReport

            1. Probably on the order of how many capitol punishment prevents.Report

               1. I think it’s more complicated than that. My perception is that law enforcement does deter crime, just very generally and in the aggregate, as opposed to specific incidents. Its primary operation is necessarily reactive. ‘Broken windows’ can also ‘work’ in a way, but it comes at a cost well beyond just the price tag.

                  I think the real lesson we can take from the last 40 years is that law enforcement is a blunt tool. It has a legitimate purposes but it isn’t a cure for complex social problems. Setting policy as though it is has been a disaster.Report

                  1. They deter crime in the sense that their presence increases the potential cost of committing a crime enough to deter some percentage of potential criminals (there is a term for it, something to do with mob mentality and a threshold for action). Police basically raise that threshold by some amount. An effective force can probably raise it quite a bit. An incompetent one…, not so much.Report

                  2. My unscientific take is that murders are generally either committed as crimes of passion or opportunity, which means that if the police aren’t right there, someone’s going to die. That probably goes for most other crimes, as well.

                     The best description I’ve ever read of the police is that they’re the janitors of the street, cleaning up the messes created by our fellow citizens.Report

            2. I’d take the clearance rate with a grain of salt.

               Cops want to close cases, not solve crimes. The difference is significant.

               And also why even the most innocent citizen should STFU when an officer asks questions. You don’t want to be the one they decide to use to close a case.Report

         3. Jaybird, they don’t see a dissonance; they think that gun control laws should be enforced by rescinding Posse Comitatus and allowing the US Army to shoot Violent Terrorist Criminals.Report

         4. the people who alternate screaming “DEFUND THE POLICE” and “PASS GUN CONTROL LAWS”.

            Team Blue is a big tent. I’ve been assuming those are different people screaming.Report

      2. We’re going to have to work at this from a stance of persistence and long term incrementalism, rather than sudden revolutionary moves.

         Watching the travails of our local progressive DA, George Gascon, shows that he is beset by opponents of reforms both from within and without the governmental structure.

         Even the most modest of police reform measures don’t really enjoy majority support anywhere, not even in the most liberal cities. We have to accept that we are the minority and work the long game.Report

         1. Then we will fail. Reforming QI – as Jaybird persists in supporting – isn’t getting any traction, and its unlikely to yield results anyway. Police clearly don’t care if you rule against them – witness show many tear gas deployments occurred in Portland AFTER federal judges told them to stop. Like so many other things, the system is designed to drive to and maintain homeostasis in only one form. You can’t reform your way out of that fundamental problem.Report

            1. I can’t provide an easy roadmap other than to note that police reform is connected to racial justice, which is connected to class equality, which is connected to feminism and so on.

               Again using my local experience, George Gascon was elected on the strength of backing from local BLM activists, who are pushing city politics leftward on a whole range of issues like homelessness and increased density zoning.

               The optimistic view is that because these issues are connected, a victory in one area makes victory in other areas possible.Report

               1. Given the headwinds you keep reporting he is bucking, his grabbing the majority of votes once may not be a win in any real sense if he is unable to actually move the needle.Report

   2. “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?… The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt! If…if…We didn’t love freedom enough. And even more – we had no awareness of the real situation…. We purely and simply deserved everything that happened afterward.”
      ― Aleksandr I. Solzhenitsyn , The Gulag Archipelago 1918–1956Report

      1. Although that quote sums up the entire reason why gun control goes hand in hand with seriously repressive governments, weirdly I see no actual quotes from Solzhenitsyn on the issue at all.

         It’s possible he never made the mental connection.

         Similarly my wife grew up under a nasty gov and still was strongly pro-gun control until we were in a situation where she started wondering if we’d be a lot safer if we had one.Report

2. OK lawerly types, what is the difference between a published and unpublished opinion, and why would cases like this be unpublished?Report

   1. I, too, am interested in this question.

      I also wonder if there is a process to turn an unpublished opinion into a published opinion.Report

      1. It happens when the court decides for whatever reason that the decision has no value as precedent. My experience with them is very limited but where I have had to analyze them I get the sense that the judge believes the holding is so clear and obvious as to be unworthy of publication. I as the lawyer haven’t always felt that way but it’s what the judge thinks that matters.Report

         1. Is there a process to get a decision published? To basically over-rule the judge?Report

            1. Not where I practice.Report

            2. Yeah, I was hoping that it was something like “It costs $7000 to get a decision published” and then we could have a GoFundMe or something.

               But my reading of InMD is that this is something where the judge says “I will not set a precedent here, but, man, it sure sucks that this guy got his Constitutional Rights violated, right? Damn.”Report

               1. My understanding is that it is at the discretion of the judge. I believe other jurisdictions may let you cite unpublished opinions as persuasive but they aren’t considered binding. Maryland is ultra-conservative in judicial philosophy and you can’t cite them at all. I don’t think it’s ever come up for me in DC.

                  One of the actual litigators here can probably give a more in depth explanation, especially if they practice somewhere the law has evolved since the 18th century.Report

3. Having read the decision, I expect that if qualified immunity were unavailable the court would have ruled for the cops on the merits. A very common situation.Report

   1. Cause the judiciary thinks its ok to obliterate the wrong doors, handcuff the wrong guy and then do nothing about except say “oops we goofed?”

      And people wonder why folks like me don’t want to reform the system.Report

      1. Most of the judiciary is prone to give cops who make mistakes in the heat of the moment the benefit of the doubt. To some extent, this is inevitable. Far too much of the judiciary, however, carries it much too far.Report

         1. Yeah, this wasn’t “heat of the moment”, this was well planned incompetence.Report

            1. That’s a view one can take, and I don’t necessarily disagree. But the people who have had a chance of becoming judges, especially lately, tend to give the cops a lot of latitude, whether they do it using qualified immunity or by rulings on the merits. The Eleventh Circuit and its trial judges are particularly deferential to the cop’s-eye view of the world, and will do what needs to be done with whatever legal tools they have.Report

               1. Great, so it’s not enough to end QI, we have to replace a cohort of judges too.Report

                  1. We should reform QI but as I always say, those expecting the judiciary to buck long term trends or be at the vanguard of anything are setting themselves up to be disappointed. It just doesn’t work that way.

                     Again, people harmed by this stuff ought to be allowed to recover and it sucks that they aren’t. But the better question to be asking is why this is the approach to making arrests in the first place.Report

                  2. Wait, you mean we AREN’T over run with Activist Judges (TM)? Damn, Fox News was wrong again!Report

         2. And, we still have people getting elected on platforms of “liberal judges/ Gotta Get Tough On OuttaControl Crime!”Report

   2. Gotta second Philip here, how can the courts be OK with letting such a thing stand?Report

      1. Many, many reasons. But I think a big one is that even most ‘liberal’ judges have conservative dispositions when it comes to that, which at its heart, is more a question of public policy than of the law. Also doesn’t hurt that they don’t tend to get reversed by coloring too far within the lines when applying precedent, which is how I read what happened here.Report

   3. So let them.Report

      1. If you prefer that courts rule flat out that we don’t have the rights we think we have rather than say it isn’t clear that we have them and bar relief on that ground, that’s largely a matter of taste. Plaintiffs with something at stake may prefer to take their chances.Report

4. In other lawsuit-against-police-department news, a woman in Arkansas is suing her local State Police because the cop used a Precision Immobilization Technique during a period where he was pulling her over on the highway and she kept driving, looking for an exit.

   Since she’s suing to have the policy changed rather than suing the cops themselves, I don’t think that this could fall under QI.

   I think that it’d just make it so that future PIT stops wouldn’t fall under QI.

   One heck of a loophole, there.Report

   1. I couldn’t find the actual filing in the case, so I don’t know whether she is suing the Arkansas State Police, which she can’t do in federal court, or the individual cops. (If she wants injunctive relief, she also has to sue a higher-level official in his official rather than his individual capacity.) Assuming she is in federal court, it would be malpractice if she didn’t sue for damages, since her car flipped, she was two months pregnant, and she thought her baby had died. That said, even if QI bars damages — which it is too early to tell — if she gets the right kind of injunctive relief, that will “clearly establish” the law going forward.Report

Comments are closed.