- 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.”
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.
Wisconsin Police Deny Planting Evidence in Viral Video, Release Their Own Body Cam Footage
The footage police released shows that during a search, officers found a corner tear from a plastic bag inside a backseat passenger’s pocket. An officer then discarded it into the car after determining that it was empty.
Viral Video Appears To Show Officer Planting Evidence
The Caledonia Police Department in Wisconsin has responded to a viral cell phone video that appears to show an officer planting a small plastic baggie inside of a car during a traffic stop.
The now-viral footage was posted to Facebook by a man who goes by GlockBoy Savoo.
The user, who also filmed the clip, wrote in his post’s caption that the officer did this “just to get a reason to search the car” and said the cop didn’t know he was being recorded by the passenger.
Police Shut Down Accusations With Their Own Footage
After that video spread across social media, many were outraged, calling the Caledonia police dirty for seemingly planting evidence. All the outrage eventually prompted the department to announce an investigation Saturday.
Within hours, the department provided an update, claiming that officers didn’t actually plant any evidence or do anything illegal.
Police shared a lengthy summary of events, along with two body camera clips from the incident. That statement explained that the driver of the vehicle was pulled over for going 63 in a 45mph zone.
Two passengers in the backseat who were then spotted without seatbelts were asked to identify themselves and step out of the car. During a search of one passenger’s pockets, an officer pulled out “an empty corner tear” from a plastic baggie.
Police claim the corner tear did not contain any illegal substances, though they said this type of packaging is a common method for holding illegal drugs.
In one body cam clip, an officer can be heard briefly questioning the backseat passenger about the baggie. Then, that piece of plastic gets handed off to different officers who also determined it as empty before the officer in the original viral video discarded it into the back of the car.
The officer can also be seen explaining where the plastic came from to the passenger recording him.
“Aye, bro you just threw that in here!” the front seat passenger says, as heard in his version of the events.
“Yeah, cause it was in his pocket and I don’t want to hold onto it. It’s on their body cam that they took it off of him…I’m telling you where it came from, so. It’s an empty baggie at the moment too, so,” the officer replies.
The department went on to explain that while it would discourage officers from discarding items into a citizen’s car, this footage proves that evidence was not planted.
Authorities also noted that no arrests were made in this incident and the driver was the only one issued a citation for speeding. The statement added that since four officers were present at the scene, police have more than six hours of footage to review but they promised to release the footage in full in the near future.
See what others are saying: (Heavy)(CBS 58) (Milwaukee Journal Sentinel)
Medical Groups, Local Leaders Push for Healthcare Workers and Public Employees To Get Vaccinated
The move comes as COVID cases have nearly quadrupled in the last month due to the rapid spread of the highly infectious delta variant.
Increased Calls for Mandatory Vaccinations in Certain Sectors
More than 50 of America’s largest medical groups representing millions of healthcare workers issued a statement Monday calling for employers of all health and long-term care providers to require mandatory COVID-19 vaccinations.
The groups, which included the American Medical Association, the American Nurses Association, and 55 others, cited contagious new variants — including delta — and low vaccination rates.
“Vaccination is the primary way to put the pandemic behind us and avoid the return of stringent public health measures,” they wrote.
The call to action comes as new COVID cases have almost quadrupled during the month of July, jumping from just around 13,000 infections a day at the beginning of this month to more than 50,000.
While the vast majority of new infections and hospitalizations are among those who have not received the vaccines, many healthcare workers remain unvaccinated. According to data collected by the Centers for Medicare and Medicaid Services, over 38% of nursing home staff were not fully vaccinated as of July 11.
An analysis by WebMD and Medscape Medical News found that around 25% of hospital workers who were in contact with patients had not been vaccinated by the end of May when vaccinations became widely available.
In addition to calls for medical professionals to get vaccinated, some local leaders have also begun to impose mandates for public employees as cases continue spiking.
Last month, San Francisco announced that it was requiring all city workers to get vaccinated. Also on Monday, New York City Mayor Bill de Blasio said that all municipal employees — including police officers and teachers — must either get the jab or agree to weekly testing by the time school starts in September.
Dr. Fauci Says U.S. Officials Are Considering Revising Mask Guidance for Vaccinated People
Numerous top U.S. health officials have applauded efforts by local leaders to mitigate further spread of the coronavirus, including the nation’s top infectious disease expert, Dr. Anthony Fauci, who confirmed Sunday that federal officials are actively considering whether to revise federal masking guidelines to recommend that vaccinated Americans wear face coverings in public settings.
In May, the Centers for Disease Control and Prevention said people who are vaccinated do not need to mask in public. Although that was a non-binding recommendation, many states and cities that had not already lifted restrictions on masking began to do so shortly after.
But now, local leaders in areas seeing big spikes have begun reimposing mask mandates — even for those who are vaccinated — including major counties like Los Angeles and St. Louis.
In his remarks Sunday, Fauci also emphasized that, despite claims from many conservatives, those efforts are in line with the federal recommendations, which leave space for local leaders to issue their own rules.
While Fauci and other top U.S. public health officials have encouraged local governments to take action, Republican lawmakers in several states are taking steps to limit the ability of local leaders and public health officials to take certain mitigation measures.
According to the Network for Public Health Law, at least 15 state legislatures have passed or are considering bills to limit the legal authority of public health agencies — and that does not even include unilateral action taken by governors.
Some of the leaders of states suffering the biggest spikes have banned local officials from imposing their own mask mandates, like Arkansas, which has the highest per capita cases in the country right now, as well as Florida, which currently ranks third.
Notably, some of the laws proposed or passed by Republicans could go beyond just preventing local officials from trying to mitigate surges in COVID cases and may have major implications for other public health crises.
For example, according to The Washington Post, a North Dakota law that bans mask mandates applies to other breakouts — even tuberculosis — while a new Montana law also bars the use of quarantine for people who have been exposed to an infectious disease but have not yet tested positive.
See what others are saying: (The Washington Post) (The New York Times) (The Guardian)
Couple Slammed Over Slavery-Themed Pre-Wedding Photoshoot
Many have expressed outrage at the duo for trying to romanticize slavery while others were left completely dumbfounded by the entire ordeal.
Photoshoot Goes Viral
A couple has come under fire after sharing images on Instagram from their slavery-themed pre-wedding photoshoot.
The photos show a Black man in shackles looking deeply into his white fiancé’s eyes before she works to releases him.
“1842. Days passed and everything changed, our love got stronger and stronger, he was no longer a slave, he was part of the family,” the post’s caption reads.
To indicate his transition from “slave” to family, a fourth image shows him wearing a long coat and top hat with well-shined shoes, as opposed to the white shirt, trousers, and straw hat he wore in the previous images.
Social Media Users React
It’s not immediately clear who these people are since the social media handle is redacted in the images circulating online.
Still, many have expressed outrage at the duo for trying to romanticize slavery while others were left just completely dumbfounded by this entire ordeal. Some also directed criticism at the photographer who agreed to the shoot, along with the hundreds of Instagram users who liked the original posts.
To see people romanticize this shit is infuriating – these people are too much. There is no such thing as slave consent and the sexual abuse of male slaves was real.— Nurse Elise 🌒 (@EliseRootedMind) July 21, 2021
There were three people there counting the photographer and not one thought should we? And over 1400 people hit the like button? And it’s part 2 like there’s more? I so want to be at the wedding when minister asks if anybody objects.— Randi Pro Democracy (@RandiKinman) July 21, 2021