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SCOTUS Considers Reexamining Qualified Immunity for Police. Here’s What That Means

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  • The Supreme Court is considering whether or not to hear cases involving questions of qualified immunity.
  • Qualified immunity is a judicial doctrine that originally intended to protect government officials and police from frivolous lawsuits.
  • But over time, courts have interpreted it to basically let officials violate people’s constitutional rights without legal consequences and allow police brutality to go unpunished.
  • House and Senate Democrats also introduced a sweeping police reform bill Monday that included a provision to reform qualified immunity, however, the Trump administration has expressed opposition to changing the doctrine.

What Is Qualified Immunity?

The Supreme Court this week is weighing whether or not it will reexamine the controversial legal doctrine known as qualified immunity that has been used to protect police and government officials from being sued for their conduct.

As protests over the death of George Floyd continue amid mounting pressure to drastically reform the police, the technical and previously little-known doctrine has taken center stage at protests, as well as legal and political debates.

Qualified immunity is a judicial doctrine first established in the 1960s. It was initially intended to protect government officials, including police officers, from frivolous lawsuits.

The idea behind the doctrine was that officials will do their jobs better if they are not worried about being sued. In the context of the police, it was intended to give them some breathing room to make quick decisions in dangerous situations.

One of the most important things to know about qualified immunity is that it is not outlined in the Constitution or under any law. 

The doctrine is a creation of the judiciary system and over time, courts have interpreted it to basically give officials and officers incredibly broad legal immunity from violating an individual’s constitutional rights.

The Problem With “Clearly Established”

In 1982, the Supreme Court ruled in Harlow v. Fitzgerald that, “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

To those of us not versed in constitutional law, that may sound like the Supreme Court ruled that government officials cannot violate statutory or constitutional rights— but the key phrase here is “clearly established.”

Since the Harlow decision, The Supreme Court has repeatedly enforced an incredibly narrow definition of “clearly established” so that cases heard by lower courts must be based on extremely specific precedents.

In fact, the definition is so narrow that it basically requires a court to throw out a case unless there is a prior court ruling on another case that involved a nearly identical situation.

Here’s an example: In 2019, two police officers approached a woman named Shaniz West because they believed her ex-boyfriend—  who had an outstanding felony arrest warrant—  was inside her house.

West gave police permission to enter her home, and they proceeded to smash windows and use tear gas. 

West sued, but two members of a three-judge panel ruled that the officers were entitled to qualified immunity because there was no past case that had explicitly determined that police are not allowed to smash windows or fire tear gas in a house that a homeowner had given them permission to enter.

In 2001, the Supreme Court issued a ruling that intended to give courts more power to declare more conduct illegal. 

That ruling required judges hearing qualified immunity cases to decide two questions: First, whether the conduct of the official or officer violated a constitutional right. If the judge found they had, the next step was to determine if the action was illegal because it violated a “clearly established” precedent from a prior ruling.

But in 2009, the Supreme Court decided that the two-step framework was not mandatory. Now, according to a Reuters investigation, most judges just skip over the first question and go right to deciding if the defendant violated a very specific past precedent.

In other words, judges are more likely to decide that a government official or police officer is immune from a lawsuit without ruling whether that person acted illegally.

That decision had a chilling effect.

“Because of a 2009 Supreme Court decision, lower courts have most often dismissed police brutality lawsuits on grounds that there is no prior court decision with nearly identical facts.” Nina Totenberg wrote for NPR

“Several recent studies, including one conducted by Reuters, have found that dozens of cases involving horrific facts, just as bad as the one involving Floyd, were thrown out of court on the grounds that there was no ‘clearly established; court precedent forbidding the conduct at issue,” she added.

Even beyond that, the Reuters investigation also found that since 2005, “the courts have shown an increasing tendency to grant immunity in excessive force cases.”

What Next?

Critics of qualified immunity argue that it has become a Catch-22, where someone cannot seek justice for a rights violation just because courts have not seen or ruled on that very specific violation before. 

Many also argue that the doctrine has basically become a tool to let police brutality go unpunished in many circumstances and to deny people constitutional rights.

However, others argue that changing qualified immunity would diminish the ability of the police to protect and serve.

“I don’t think you need to reduce immunity to go after the bad cops, because that would result certainly in police pulling back,” Attorney General Bill Barr said on “Face the Nation” Sunday. 

“Policing is the toughest job in the country,” he continued. “And I, frankly, think that we have generally the vast, overwhelming majority of police are good people. They’re civic-minded people who believe in serving the public. They do so bravely. They do so righteously.”

As for the future of qualified immunity, it is currently uncertain.

While the Supreme Court decides whether or not to hear any of the half a dozen cases involving qualified immunity it is currently considering, Congress has begun to take matters into its own hands.

On Monday, both House and Senate Democrats proposed a sweeping police reform bill that, among other things, would change qualified immunity so plaintiffs could recover damages.

However, it remains unclear if Republicans will support the bill. Separately, a spokeswoman for President Donald Trump specifically expressed skepticism about the proposed reform to qualified immunity.

“He hasn’t reviewed it yet,” the spokeswoman said of the bill. “He’s looking at a number of proposals.”

“But there are some non-starters in there, I would say, particularly on the immunity issue,” she continued before referencing Barr’s remarks.

See what others are saying: (Reuters) (NPR) (Vox

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Florida School Says Students Vaccinated Against COVID-19 Must Stay Home for 30 Days

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The school falsely claimed that people who have just been vaccinated risk “shedding” the coronavirus and could infect others.


Centner Academy Vaccination Policy

A private school in Florida is now requiring all students who get vaccinated against COVID-19 to quarantine for 30 days before returning to class.

According to the local Miami outlet WSVN, Centner Academy wrote a letter to parents last week describing COVID vaccines as “experimental” and citing anti-vaccine misinformation.

“If you are considering the vaccine for your Centner Academy student(s), we ask that you hold off until the Summer when there will be time for the potential transmission or shedding onto others to decrease,” the letter reportedly stated.

“Because of the potential impact on other students and our school community, vaccinated students will need to stay at home for 30 days post-vaccination for each dose and booster they receive and may return to school after 30 days as long as the student is healthy and symptom-free.”

The Centers for Disease Control and Prevention (CDC) has debunked the false claim that those newly vaccinated against COVID-19 can “shed” the virus.

According to the agency’s COVID myths page, vaccine shedding “can only occur when a vaccine contains a weakened version of the virus,” but “none of the authorized COVID-19 vaccines in the United States contain the live virus that causes COVID-19. This means that a COVID-19 vaccine cannot make you sick with COVID-19.”

In fact, early research has suggested that vaccinated people are less likely to spread the virus than unvaccinated people.

Beyond that, unvaccinated people are more likely to spread COVID in general because they are much more likely to get the virus than vaccinated people. According to recently published CDC data, as of August, unvaccinated people were six times more likely to get COVID than vaccinated people and 11 times more likely to die from the virus.

Centner Academy Continues Spread of Misinformation

In a statement to The Washington Post Monday, Centner Academy co-founder David Centner doubled down on the school’s new policy, which he described as a “precautionary measure” based on “numerous anecdotal cases that have been in circulation.”

“The school is not opining as to whether unexplained phenomena have a basis in fact, however we prefer to err on the side of caution when making decisions that impact the health of the school community,” he added.

The new rule echoes similar efforts Centner Academy has made that run counter to public health guidance and scientific knowledge.

In April, the school made headlines when its leadership told vaccinated school employees that they were not allowed to be in contact with any students “until more information is known” and encouraged employees to wait until summer to get the jab.

According to The New York Times, the following week, a math and science teacher allegedly told students not to hug their vaccinated parents for more than five seconds.

The outlet also reported that the school’s other co-founder, Leila Centner, discouraged masking, but when state health officials came for routine inspections, teachers said they were directed in a WhatsApp group to put masks on.

See what others are saying: (WSVN) (The Washington Post) (Business Insider)

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Katie Couric Says She Edited Ruth Bader Ginsburg Quote About Athletes Kneeling During National Anthem

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Couric said she omitted part of a 2016 interview in order to “protect” the justice.


Kate Couric Edited Quote From Justice Ginsburg

In her upcoming book, journalist Katie Couric admitted to editing a quote from Supreme Court Justice Ruth Bader Ginsberg in 2016 in order to “protect” Ginsberg from potential criticism. 

Couric interviewed the late justice for an article in Yahoo News. During their discussion, she asked Ginsburg about her thoughts on athletes like Colin Kaepernick kneeling for the national anthem to protest racial inequality.

“I think it’s really dumb of them,” Ginsburg is quoted saying in the piece. “Would I arrest them for doing it? No. I think it’s dumb and disrespectful. I would have the same answer if you asked me about flag burning. I think it’s a terrible thing to do, but I wouldn’t lock a person up for doing it. I would point out how ridiculous it seems to me to do such an act.”

According to The Daily Mail and The New York Post, which obtained advance copies of Couric’s book “Going There,” there was more to Ginsburg’s response. Couric wrote that she omitted a portion where Ginsburg said the form of protest showed a “contempt for a government that has made it possible for their parents and grandparents to live a decent life…Which they probably could not have lived in the places they came from.

Couric Says She Lost Sleep Making Choice

“As they became older they realize that this was youthful folly,” Ginsberg reportedly continued. “And that’s why education is important.

According to The Daily Mail, Couric wrote that the Supreme Court’s head of public affairs sent an email asking to remove comments about kneeling because Ginsburg had misspoken. Couric reportedly added that she felt a need to “protect” the justice, thinking she may not have understood the question. Couric reached out to her friend, New York Times reporter David Brooks, regarding the matter and he allegedly likewise believed she may have been confused by the subject. 

Couric also wrote that she was a “big RBG fan” and felt her comments were “unworthy of a crusader for equality.” Because she knew the remarks could land Ginsburg in hot water, she said she “lost a lot of sleep” and felt “conflicted” about whether or not to edit them out. 

Couric was trending on Twitter Wednesday and Thursday as people questioned the ethics behind her choice to ultimately cut part of the quote. Some thought the move showed a lack of journalistic integrity while others thought revealing the story now harmed Ginsburg’s legacy.

See what others are saying: (New York Post) (The Daily Mail) (Insider)

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Biden Administration Orders ICE To Halt Workplace Raids

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The Department of Homeland Security will now focus on targeting employers who exploit undocumented workers, instead of carrying out raids that dissuade those workers from reporting labor violations.


DHS Reverses Worksite Raid Policy

The Biden administration announced Tuesday that it was ordering Immigration and Customs Enforcement (ICE) to stop workplace raids.

The move marks a reversal from Trump administration policies that have been strongly criticized by immigration activists who argue the efforts created fear in immigrant communities and dissuaded them from reporting labor violations or exploitative employment practices.

In addition to stopping the raids, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas said in a memo that the administration will refocus enforcement efforts to instead target “employers who exploit unauthorized workers, conduct illegal activities or impose unsafe working conditions.” 

Mayorkas added that the immigration agencies housed in DHS will have the next 60 days to identify harmful existing policies and come up with new ones that provide better deportation protections for workers who report their employers.

In the Tuesday memo, the secretary argued that shift of focus will “reduce the demand for illegal employment by delivering more severe consequences to exploitative employers” and “increase the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigation.”

Labor Market Implications

The new policy comes at a time when the U.S. is experiencing a critical labor shortage, including in many sectors that rely on immigrant labor.

Some companies that use undocumented workers pay them wages that are far below the market rate, which is not only exploitative but also undercuts competitors.

According to Mayorkas, the pivot to employer-based enforcement will help protect American businesses.

“By exploiting undocumented workers and paying them substandard wages, the unscrupulous employers create an unfair labor market,” he said in the memo. “They also unfairly drive down their costs and disadvantage their business competitors who abide by the law.”

It is currently unclear how effective the new efforts will be, but historical precedent does not paint an optimistic picture.

The Biden administration’s efforts closely mirror a similar move by the Obama administration, which attempted to reverse workplace raids authorized under President George W. Bush by targetting those who employ undocumented workers rather than the workers themselves.

That effort, however, still led to thousands of undocumented workers being fired.

See what others are saying: (The Washington Post) (The New York Times) (ABC News)

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