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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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Privacy Concerns Rise in Florida Over Menstruation Questions on Digital Student-Athlete Physicals

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Ever since the overturn of Roe V. Wade, activists have been concerned about how period tracking data can be used against women.


Outrage and Concerns

Florida schools require student-athletes to complete an annual physical evaluation form before being allowed to participate in sports, including questions about female menstruation. Recently, school districts have shifted these forms into a digital format using a third party, causing privacy concerns for parents and activists alike. 

As headlines started to circulate the news, many online began expressing outrage. Lawyer Pam Keith, who ran for U.S. House of Representatives in 2020 referred to Florida as a “police state for women” on Tuesday morning. Other tweets have called this practice “dystopian” and “tramping on women’s rights.”

In Florida, these questions have been on the student-athlete physical evaluation form for approximately 20 years. Now that some school districts have shifted from paper copies to digital formatting with the third-party software company, Aktivate, criticisms have resurfaced across the state. Abortion rights activists, in particular, are worried about menstrual information being used to prosecute someone for getting an abortion. Others vocally oppose storing this information online, citing parents’ rights over their children’s data. 

Florida’s Policy

These questions relating to menstruation are labeled as optional on the document. However, some have expressed concern that athletes will feel obligated to answer them in order to ensure their eligibility to play. 

Florida schools have all of the medical data collected by these physicals sent back to the district from the physician. This is in sharp contrast to the policy of other states that simply require the physician’s approval for the athlete to be cleared to play. 

“I don’t see why school districts need that access to that type of information,” pediatrician Dr. Michael Haller said to The Florida Times-Union. “It sure as hell will give me pause to fill it out with my kid.”

See what others are saying: (Forbes) (The Palm Beach Post) (The Florida Times-Union

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Navy SEAL Recruits Sprayed With Tear Gas in “Horrific” Leaked Video

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The revelation comes after the Navy launched an investigation into SEAL training practices last month in response to the death of a recruit.


The Worst Birthday Ever

In September 2021, Navy SEAL recruits were forced to sing “happy birthday” while standing amid a thick cloud of tear gas as part of their training, a leaked video reveals.

The footage, which was obtained by investigative reporter Mathew Cole and published by CBS News, comes from California’s San Clemente Island, where SEALs are trained.

For over a minute, instructors are seen dousing the recruits in the chemical, sometimes from just inches away, as they struggle to sing. Reports say they were singing so that they could not hold their breath, which regulations incidentally warn may cause a person to pass out.

Although exposure to tear gas is a common right of passage for military recruits, who must learn how to properly don a face mask, it is meant to be sprayed from six feet away to prevent burns and last for no longer than 15 seconds.

The recruits in the video are seen coughing, heaving, and crying out in agony after the gas subsides, and one appears to pass out.

A Navy admiral has reportedly launched an investigation into the video to determine whether the instructors sprayed the gas for too long and from too close, and if they did, whether they were simply unaware of the proper procedure or intended to abuse and punish the recruits, which could be a criminal offense.

Cole wrote in a Twitter thread that he showed the footage to current and retired senior SEAL officers, who described the exercise as “horrific,” “abusive,” “pointless” and “near torture.”

“Current and former SEAL students say they were told the purpose of the exercise, which cause extreme pain, was to simulate how they would react to bullet wounds in combat,” he said. “They were told by BUD/S instructors it was a ‘rite of passage’ and given three attempts to complete it.”

The Death of Kyle Mullen

“The source who provided the video did so because they wanted the Navy, Congress and the public to know that the February 2022 death of Kyle Mullen was not an isolated incident,” Cole Continued.

Mullen was a 24-year-old Navy recruit who arrived in California for the SEALs rigorous selection course in January. In his third week, he reached what’s known as Hell Week, a five-day-long slog through an infamously brutal training regiment that’s killed at least 11 men since 1953.

Trainees spend at least 20 hours per day doing physical exercises, running a total of more than 200 miles, and are allowed just four hours of sleep across the entire week.

Hell Week is meant to test a recruit’s mental and physical resilience, as well as their commitment to becoming a Navy SEAL. Critics, however, argue it is excessively harsh, pointing to the concussions, broken bones, dangerous infections, and near drownings suffered by some recruits.

When Mullen completed Hell Week, he called his mother Regina, who told CBS News her son seemed to be having trouble breathing.

A few hours later, he died with the official cause being pneumonia, which Regina attributed to the freezing water he was submerged in during training.

She also said he admitted to using banned performance-enhancing drugs, something many aspiring SEALs resort to so they can cross the finish line.

Even with drugs, however, around 90% of trainees fail to complete the selection course, with most dropping out during Hell Week.

The same day Kyle died, one of his fellow trainees had to be intubated, and two more were hospitalized.

The Navy launched an investigation into the SEALs selection course last month in response to Kyle’s death.

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

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Lawyer Claims That LAPD Officer Who Died In Training Was Targeted For Investigating Other Officers For Rape

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The late officer’s family has filed a lawsuit against the city of Los Angeles.


Press Conference Reveals New Allegations

A lawyer for the family of Los Angeles Police officer Houston Tipping, who died in May during a training exercise, claimed on Monday that Tipping was targeted for reporting an alleged sexual assault by four other police officers last year. 

In May, Tipping sustained serious injury — including a broken spine — during training, which resulted in his death three days later. The LAPD released a statement saying his injuries came from a fall taken during a segment of training that involved grappling another officer. 

His family, however, filed a complaint — and later a lawsuit — against the city of Los Angeles. The lawsuit states that Tipping was, “repeatedly struck in the head severely enough that he bled.”

During a Monday press conference, his family’s lawyer, Bradley Gage, claimed that the injuries Tipping sustained could not have been the result of grappling.

“There is no way grappling would have caused those kinds of injuries the way the LAPD portrays it,” he said. “What would cause those injuries is if somebody picked a person up, slams them down onto their head and their neck onto a hard surface.”

An Alleged Cover-Up

According to Gage, an officer that Tipping had reported last year for an alleged sexual assault was also present at this training exercise. 

“The allegation is that in July of 2021, four police officers were involved in the sexual assault of a woman from the Los Angeles area. A report was taken by Officer Tipping,” he said. “And the female victim claimed that she was raped by four different people, all LAPD officers. She knew the names of some of those officers because they were in uniform and had their name tags on. The name of one of those officers, with the name tag, seems to correlate with the names of one of the officers that was at the bicycle training” 

The attorney went on to confirm that he is alleging this unnamed officer is responsible for Tipping’s injuries. 

Later in the press conference, Gage stated that the police department is likely trying to cover-up these misdeeds.  

“I’m sure that these actions are being covered-up. The thought of a code of silence or a cover-up by a police department should not be shocking or surprising to anyone,” he said

Although the initial lawsuit by Tipping’s family included the wrongful death and other civil rights violations, with this new information, the family and the attorney has decided to file a supplemental. This supplemental will cover the whistler blower retaliation, destruction of evidence, and the initial wrongdoing of the rape case. 

See what others are saying: (FOX 11 LA) (Washington Post) (LA Times)

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