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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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Derek Chauvin and 3 Others Ex-Officers Indicted on Civil Rights Charges Over George Floyd’s Death

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  • The Justice Department filed federal criminal charges Friday against Derek Chauvin and three other former Minneapolis police officers after a grand jury indicted them for violating the civil rights of George Floyd.
  • The indictment charges Chauvin, J. Alexander Kueng, and Tou Thao for violating Floyd’s right to be free from unreasonable seizure and unreasonable force. All three, as well as Thomas Lane, were also charged with failing to provide medical care to Floyd. 
  • Chauvin was additionally hit with two counts in a separate indictment, which claims he violated the civil rights of a 14-year-old boy who he allegedly held by the neck and repeatedly beat with a flashlight during a 2017 arrest.
  • Chauvin was already convicted last month of murder and manslaughter over Floyd’s death, which Kueng, Lane, and Thao were previously charged for allegedly aiding and abetting.

Former Minneapolis Officers Hit With Federal Charges

A federal grand jury indicted Derek Chauvin and three other former Minneapolis police officers for violating George Floyd’s civil rights during the arrest that lead to his death last summer, the Justice Department announced Friday.

Chauvin, specifically, was charged with violating Floyd’s right to be free from unreasonable seizure and unreasonable force by a police officer. Ex-officers J. Alexander Kueng and Tou Thao were indicted for willfully failing to intervene in Chauvin’s unreasonable use of force.

All three men, as well as former officer Thomas Lane, face charges for failing to provide medical care to Floyd, “thereby acting with deliberate indifference to a substantial risk of harm to Floyd,” according to the indictment.

In a second, separate indictment, Chauvin was hit with two counts of civil rights violations related to the arrest of a 14-year-old boy in September 2017. During that incident, Chauvin allegedly held the boy by the neck and hit him with a flashlight repeatedly.

The announcement, which follows a months-long investigation by the Justice Department’s Civil Rights Division, comes just over two weeks after Chauvin was found guilty of three state charges of murder and manslaughter in Floyd’s death.

He is currently awaiting his June 25 sentencing in a maximum-security prison.

State-Level Charges

Kueng, Lane, and Thao all face state charges of aiding and abetting second-degree murder and manslaughter.

Kueng and Lane were the first officers to responded to a call from a convenience store employee who claimed that Floyd used a counterfeit $20 bill. Body camera footage showed Floyd sitting in the car and Lane drawing his gun as the officers ordered him out and handcuffed him. 

Floyd can be heard pleading with the officers not to shoot him.

Shortly after, Chauvin and Thao arrived, and the footage shows Chauvin joining the other officers in their attempt to put Floyd into the back of a police car. In the struggle, the officers forced Floyd to the ground, with Chauvin kneeling on his neck while Kueng and Lane held his back and legs. 

Meanwhile, in cellphone footage taken at the scene, Thao can be seen ordering bystanders to stay away, and later preventing a Minneapolis firefighter from giving Floyd medical aid.

Their trial is set to begin in late August, and all three are free on bond. The new federal charges, however, will likely be more difficult to prove.

According to legal experts, prosecutors will have to show beyond reasonable doubt that the officers knew that they were depriving Floyd of his constitutional rights but continued to do so anyway.

The high legal standard is also hard to establish, as officers can easily claim they acted out of fear or even poor judgment.

See what others are saying: (The Washington Post) (The New York Times) (The Associated Press)

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Caitlyn Jenner Says Her Friends Are Fleeing California Because of the Homeless Population

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  • California gubernatorial candidate Caitlyn Jenner sparked outrage after an interview with Sean Hannity on Wednesday that was filmed from her Malibu airplane hangar. 
  • “My friends are leaving California,” she said. “My hangar, the guy right across, he was packing up his hangar and I said, ‘Where are you going?’ And he says, ‘I’m moving to Sedona, Arizona. I can’t take it anymore. I can’t walk down the streets and see the homeless.’”
  • Many criticized Jenner for sounding out of touch and unsympathetic to real issues in California and suggested that she prioritize helping the homeless population rather than incredibly wealthy state residents.

Caitlyn Jenner’s Remarks

California gubernatorial candidate Caitlyn Jenner sparked outrage on Wednesday after suggesting that wealthy people are fleeing the state because of its homeless population.

Jenner sat down for an interview in her Malibu airplane hangar with Fox News’ Sean Hannity. Jenner is one of the handful of Republicans aiming to unseat current Governor Gavin Newsom in a recall election in the fall. While polls show that most Californians do not support recalling Newsom, the conservative-led movement to do so gained enough signatures to land on the ballot.

“My friends are leaving California,” Jenner claimed during the interview. “My hangar, the guy right across, he was packing up his hangar and I said, ‘where are you going?’ And he says, ‘I’m moving to Sedona, Arizona, I can’t take it anymore. I can’t walk down the streets and see the homeless.’” 

“I don’t want to leave,” she continued. “Either I stay and fight, or I get out of here.”

Jenner’s Remarks Prompt Backlash

Her remarks were criticized online by people who thought Jenner sounded unsympathetic and out of touch to the real issues in the state. Many found it hypocritical that Jenner has slammed Newsom for being elite but was so concerned for wealthy people who don’t like having to see unhoused residents on the street.

Rep. Ted Lieu (D-Ca.) called Jenner out on Twitter for seemingly fighting for a small percentage of Californians. 

Unlike you, Dems are focused on the 99% of people who don’t own planes or hangars,” he wrote. “And you know what’s going to help reduce homelessness? The #AmericanRescuePlan, which your party opposed.”

Others suggested she prioritize directly addressing the homeless situation.

“If you don’t like the homeless situation, instead of hiding in your PRIVATE PLANE HANGAR, your campaign should be about helping them,” actress Merrin Dungey said. “They don’t like their situation either. Your lifelong privilege is showing. It’s not a good color.”

Jenner, an Olympic gold medalist and reality star, is one of the most prominent transgender Americans. Because homelessness is such a common issue within the trans community, some were frustrated she was not using her campaign to fix the situation, and rather used it to complain about how it impacted her wealthy friends. 

See what others are saying: (The Hill) (Politico) (Washington Post)

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Derek Chauvin Seeks New Trial In George Floyd Murder Case

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  • A lawyer for Derek Chauvin, the former Minneapolis police officer who was convicted of murdering George Floyd, filed a motion Tuesday for a new trial.
  • Among other complaints about Chauvin’s conviction, the attorney cited “prosecutorial and jury misconduct; errors of law at trial; and a verdict that is contrary to law.”
  • He also claimed the court “abused its discretion” by not granting a change of venue or sequestering the jury for the duration of the trial, arguing that publicity before and during it threatened its fairness. 
  • John Stiles, deputy chief of staff for Minnesota Attorney General Keith Ellison, told CNN, “The court has already rejected many of these arguments and the State will vigorously oppose them.”

Derek Chauvin’s Attorney Files Motion for New Trial

Former Minneapolis police officer Derek Chauvin is officially asking for a new trial, hoping to overturn his conviction for the murder of George Floyd.

His attorney, Eric Nelson, filed court paperwork Tuesday laying out a number of errors he believes were made during Chauvin’s legal proceedings that violated his constitutional rights to due process and a fair trial. Nelson cited alleged issues, including, “prosecutorial and jury misconduct; errors of law at trial; and a verdict that is contrary to law.”

The filing did not cite any specific examples of jury misconduct, but Nelson also argued that the court “abused its discretion” by not granting a change of venue or sequestering the jury for the duration of the trial.

The court proceedings took place in the same city where Floyd was killed and where protesters drew national attention by calling for justice in his name. As a result, Nelson claimed that publicity before and during the trial threatened its fairness. He also argued that a defense expert witness was intimidated after he testified, but before the jury deliberated.

His filing asks for a hearing to impeach the guilty verdict, in part, on the grounds that the 12 jurors “felt threatened or intimidated, felt race-based pressure during the proceedings, and/or failed to adhere to instructions during deliberations.”

It’s unclear exactly what will come of this request, but John Stiles, deputy chief of staff for Minnesota Attorney General Keith Ellison, told CNN, “The court has already rejected many of these arguments and the State will vigorously oppose them.”

For instance, a judge previously denied Chauvin’s request to move the trial in March, saying, “I don’t think there’s any place in the state of Minnesota that has not been subjected to extreme amounts of publicity on this case.”

See what others are saying: (CNN) (NPR) (CBS)

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