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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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Nearly 9 Million Are Without Water in Texas, Some Face Electric Bills up To $17,000

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  • More than 8.8 million people in Texas remained under boil water notices Monday, and over 120,000 had no water service at all. 
  • Gov. Greg Abbott (R) said Sunday that the state has distributed around 3.5 million bottles of water, though many of the lines to receive that water were plagued with hours-long waits.
  • Meanwhile, power outages in the state have fallen below 20,000, but many Texans are also beginning to receive astronomical electric bills of as much as $17,000.
  • Both Abbott and Houston Mayor Sylvester Turner (D) said those prices are not the fault of customers. While some form of forgiveness is likely, no immediate plan has been outlined yet. 

Millions Without Water

As of Monday morning, nearly 8.8 million people in Texas are still under boil water notices following last week’s snowstorm. That’s about one out of every three Texans.

Despite being a giant chunk of the state’s population, that figure is actually an improvement from 10 million people on Sunday. 

Another 120,000 Texans are still without water service at all.

Gov. Greg Abbott (R) said Sunday almost 3.5 million bottles of water have been distributed across Texas by helicopter, airplane, and truck.

The need for water has been extremely visible. An Austin City Council member shared a video on Twitter Sunday showing a massive line of vehicles waiting for clean water. Some waited for more than an hour before the distribution event began. At another site, she said cars began lining up more than five hours before the event. 

Abbott said the state is bringing in more plumbers to increase repair efforts for damaged water systems. Additionally, Abbott said homeowners without insurance could qualify for emergency reimbursement from FEMA.

Meanwhile, one large-scale effort from Rep. Alexandria Ocasio-Cortez (D-NY.) has now raised more than $5 million since first being launched on Thursday. That money will go to several organizations, including the Houston Food Bank, Family Eldercare, Feeding Texas, and the Bridge Homeless Recovery Center.

Texas Electric Bills Soar as High as $17K

All but just under 20,000 Texas homes and businesses have now had their power restored as of Monday morning.

That’s a stark contrast from the more than 4 million that were out of power at one point last week. 

While that’s largely good news, many Texans are now beginning to receive sky-high electric bills. That’s especially evident for those whose power stayed on during the storm. In fact, some people have now told multiple media outlets they’re facing bills as high as $17,000.

One 63-year-old Army vet, who was charged $16,752, told The New York Times that his bill was about 70 times higher than normal.

“My savings is gone,” he said. “There’s nothing I can do about it, but it’s broken me.”

As far as why his and others’ eclectic bills are so high, many people in Texas have plans that are directly tied to the wholesale price of electricity. Usually, that helps keep their costs low, but as demand for power surged during last week’s snowstorm, those prices hit astronomical highs. 

In a statement on Saturday, Abbott said Texas lawmakers “have a responsibility to protect Texans from spikes in their energy bills that are a result of the severe winter weather and power outages,” 

He added that the state Legislature is working “on solutions to help Texas families and ensure they do not get stuck with skyrocketing energy bills.”

In a similar tone, Houston Mayor Sylvester Turner (D) said in an interview with CBS on Sunday, “It’s not the consumers who should assume [these] costs. They are not at fault for what happened this week.”

That said, Turner also laid blame at the feet of the Legislature, calling the current crisis “foreseeable” on the part of lawmakers because a similar snowstorm and outages struck Texas in 2011.

Turner added that, at the time, he was part of the Texas legislature and had filed a bill that would have required the agency overseeing Texas’ grid to “ensure that there was an adequate reserve to prevent blackouts.”

“The leadership in Austin did not give it a hearing,” he said. 

While no aid has been fully guaranteed yet, Texas has prevented electric companies from being able to shut off power for people who don’t pay their bills on time. 

See what others are saying: (NBC News) (The New York Times) (CNN)

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Texans Still Face Broken Pipes, Flooding, and Carbon Monoxide Poisoning as Million Regain Power

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  • The number of Texans without power fell from 3.3 million on Wednesday to below 500,000 by Thursday.
  • Still, millions are currently under a boil advisory, pipes have burst as they begin to thaw, and some individuals have died or been hospitalized because of carbon monoxide poisoning. 
  • The Federal Emergency Management Agency said Wednesday that it has sent generators, water, and blankets to Texas, adding that it’s working to send additional diesel for generators.
  • Gov. Greg Abbott and President Joe Biden have also reportedly discussed the possibility of extra funding for people’s electricity bills, as well as for burst pipes.

Power May Be Back but Problems Persist

Power outages in Texas Thursday morning fell to under 500,000 — down from 3.3 million Wednesday morning. 

According to the state’s main grid operator, the Electric Reliability Council of Texas (ERCOT), the remaining outages are largely weather-related and not connected to problems related to forced outages. 

While that return of power to millions is significant, Texans are still facing a host of other problems.

For example, there have been numerous reports of carbon monoxide poisoning as people still without power try to keep warm in their cars or through other means. An adult and a child were found dead Tuesday after running their car inside of a garage, prompting Houston police to issue a statement warning that “cars, grills and generators should not be used in or near a building.”

Six children and four adults were rushed to the hospital Wednesday night for carbon monoxide poisoning after setting up grills inside their homes. 

Even for those now with power, water has become a major issue. On Wednesday, 7 million Texans were placed on a boil advisory and about 263,000 were without functioning water providers. 

One reporter tweeted out a video of people lining up at a park to fill up buckets of water.

“This is not a third world country,” she said. “This is Houston, Texas.”

The Food and Drug Administration and the National Weather Service have even cited melting and boiling snow as an emergency option if people can’t find water elsewhere, an option many have already turned to. 

For some, all these problems only seemed to compound in the form of burst pipes. One viral video shows water gushing out of a third-story apartment. Others posted images of their broken pipes and the damage they have caused. 

As a result, a number of local media outlets have begun to outline steps people can take once their pipes start to thaw or if they break. 

Amid Problems, Aid is Being Distributed

Alongside the overwhelming amount of problems, there has also been a large aid response.

A FEMA spokesperson said Wednesday that the agency has sent 60 “very large” generators to help keep hospitals and other critical infrastructure open. 

White House Press Secretary Jen Psaki added that FEMA is preparing to move diesel into Texas to keep that backup power going.

So far, FEMA said it has sent “millions of liters of water” and “tens of thousands” of blankets.

Governor Greg Abbott and President Joe Biden have also reportedly discussed the possibility of extra funding for people’s electricity bills, as well as for burst pipes. That’s because as the storm first hit, electrical demand surged. Since many Texans have plans connected to the wholesale price of electricity, they’re potentially set to be hit with sky-high bills.

Among other issues plaguing Texans is food spoilage; however, that can potentially be reimbursed through renters’ and homeowners’ insurance.

According to an official from the Insurance Council of Texas, “Food coverage is often related to personal property.”

Notably, there are some stipulations depending on individual circumstances and policy. To learn more about how insurance providers accept food spoilage claims, click here.

See what others are saying: (KTRK) (The New York Times) (Houston Chronicle)

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Texas Mayor Tells “Lazy” Residents “No One Owes You” Anything Amid Power Outages

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  • When residents in Colorado City, Texas turned to a local Facebook group to ask if the city or county had emergency shelter plans in place to keep people warm amid power outages, Mayor Tim Boyd shared a Facebook message that sparked outrage.
  • “Sink or swim it’s your choice! The City and County, along with power providers or any other service owes you NOTHING! I’m sick and tired of people looking for a damn handout!” he wrote before suggesting that those struggling are “lazy.”
  • “Only the strong will survive and the weak will parish,” he added. “Get off your ass and take care of your own family!”
  • Hours later, Boyd said he was speaking as a citizen since he had already turned in his resignation and had not signed up to run for mayor again ahead of the deadline a few days ago. It’s unclear when he actually resigned and he is still listed as mayor on the city’s website.

Mayor Under Fire

The mayor of Colorado City, Texas is facing intense backlash for comments he made on Facebook Tuesday claiming the local government has no responsibility to assist residents struggling amid historic winter temperatures.

The remarks came after community members turned to a local Facebook page asking if the city or county had emergency shelters in place to keep people warm amid widespread power outages.

In response, Mayor Tim Boyd wrote, “No one owes you [or] your family anything; nor is it the local government’s government’s responsibility to support you during trying times like this!”

“Sink or swim it’s your choice!” He continued. “The City and County, along with power providers or any other service owes you NOTHING! I’m sick and tired of people looking for a damn handout!”

Boyd argued that residents should come up with their own plans to keep their families safe. Those that are sitting at home in the cold waiting for assistance, he said, are “lazy” as a direct result of their raising.

“Only the strong will survive and the weak will parish,” he continued, likely meaning perish in his statement.

He blamed the calls for basic services like heat and electricity a product of a “socialist government where they feed people to believe that the FEW will work and others will become dependent for handouts.”

He closed by telling locals to “quit crying,” adding, “Get off your ass and take care of your own family!”

Source: KTXS

Mayor Doubles Down, Says He Already Resigned

That now-deleted post drew immediate backlash as Texans continue to slam the government for not delivering adequate support amid the storm.

The outrage eventually prompted Boyd to write a follow-up post, which he also later deleted.

In it, he claimed that his comments “were taken out of context” and did not apply to the elderly; however, he continued to double down.

“I was only making the statement that those folks that are too lazy to get up and fend for themselves but are capable should not be dealt a handout. I apologize for the wording and some of the phrases that were used!”

Boyd said he already turned in his resignation and had not signed up to run for mayor again ahead of the deadline a few days ago. He also said he wished he would’ve kept his words to himself or been more descriptive, and he added that all the anger and harassment since his post has caused his wife to lose her job.

Source: KTXS

Ultimately, he said he was speaking as a citizen since he is no longer mayor and called for the harassment of his family to stop.

According to The Washington Post, it isn’t immediately clear if he resigned before or after writing his controversial Facebook post. As of early Wednesday morning, the paper noted that he was still listed as mayor on Colorado City’s website, and city council agendas showed that he had served in that role as recently as last week.

See what others are saying: (The Washington Post) (KTXS) (People)

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