RELEVANT LAWS, CASES & LEGAL ISSUES
In the event something unfortunate happens to you or someone near to you, and you have to deal with the legal system, these are the relevant legal elements of any case that your attorney, the prosecutor and the judge will know. You should too.
Be sure to also read and understand the local ordinances or laws cited in any accusations or charges. Observe that "piling on" by filing multiple accusations is common practice. Prosecutors often are happy to trade away the fluff for your consent to punishment for one charge that they hope sticks.
The Constitution of the United States
First, and above all else in the law, is the Constitution of the United States. No law or court precedent or executive order or other regulation holds a higher position in our nation’s structure of laws than the Constitution. The Constitution is the prime law of the land. If there is a question of conflicting statutes or precedents, we must always start with the law that occupies the position of controlling authority (Constitution). Then we work down and eliminate conflicts created by lesser laws, orders or court precedents.
To read the full Constitution, see the official Archive at: https://www.archives.gov. It contains a lot of language about elected offices and trade between the states, and etc., most of little interest to most individuals until you get to the Bill of Rights.
To read the Bill of Rights, to review all of your rights and the story of why we have these rights that supersede everything else, see: https://www.archives.gov/founding-docs/bill-of-rights.
That Bill of Rights is the first ten amendments to the Constitution, and these protections were required by the original thirteen states before they would sign the Constitution. Smart leaders in the original thirteen states realized that these basic rights must be laid out plainly and in the Constitution to protect citizens in the new nation from repression. There is wisdom in that.
The police interactions that have unfortunate endings that every citizen sees in video are mainly violations of the Fourth Amendment. The Fourth Amendment to the US Constitution says:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
“The right of the people to be secure in their persons…shall not be violated…”
“The right of the people to be secure…against unreasonable searches and seizures, shall not be violated…”
These are "civil rights", the rights of citizens in this civil society. Those statements were written in plain language by our Founding Fathers. The intent is self-evident and clear. Anyone who has studied history understands why those words were needed in the time the Constitution was written, and we all can see too many events that remind us that those words are equally important today.
This is the most “well established law”, established first among all of our laws over 230 years ago, and is the preeminent “clear precedent” controlling all other laws or court rulings. It is "beyond debate". It governs and limits the actions of every citizen and every police officer and every other government official, so every "reasonable person" who is a citizen has a responsibility to know it.
The Constitution is a mighty shield to protect you from officers who use excessive force or unlawfully arrest you, and to protect you from any other person abusing power, from any other person violating your rights. The question of whether your rights have been violated starts here.
Remember the Revolutionary War era flag: “Don’t Tread On Me”. That is the essence of what our Founding Fathers meant.
All citizens have civil rights. Violations of those rights can and do happen and we find justice for those violations in our courts.
42 USC S 1983 or “Section 1983”
When this section of US Law was written during Reconstruction after the Civil War, some people in positions of power refused to accept the Emancipation Proclamation and the results of the Civil War and continued to violate newly granted civil rights of former slaves. Racially motivated rights violations, murders and other tragedies were far too common. Congress intervened to ensure that civil rights were protected, and the courts were designated as the protectors of those rights. Congress stated clearly that those who violate the civil rights of the people are liable for those violations. Filter the language of the day to observe what was being said (underline added).
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”
That is the entire statute. Key:
“Every person who…subjects…any citizen of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured…”
That is important.
The law says that if a person violates your Constitutional Rights then they are liable to you. Period.
Of course, if Congress had written into the law any exceptions, that would have diminished the law’s effectiveness.
Observe the pendulum swing. The Constitution is clear and a firm line. Those who did not accept the result of the Civil War tried to erode newly granted civil rights and that gave rise to violations, such that USC 42 Section 1983 was necessary. With Section 1983, the rights of citizens were affirmed. Yet those civil rights have been eroded again today, to the point that officers committing murders and unlawful physical violence and unlawful jailings have gone unpunished, and we have reached the point that America must pull the pendulum back toward protecting the rights of citizens.
Judicial Rulings, and Some Exceptions for Law Enforcement Officers
There have been many judicial decisions that relate to these Civil Rights protected by the Constitution, and the liability for violating those Civil Rights. Any good attorney representing you will know the judicial references. Useful citations you may want to know:
Little v Barreme, 6 US (2 Cranch) 170 (1804) effectively said that a “violation is a violation” and the “only defense (against accusations of civil rights violations) is legal conduct, not good faith”. Although the naval officer was ‘acting in good faith’ following a Presidential order, he was held liable for violating Constitutional Rights. Chief Justice Marshall wrote, “instructions cannot change the nature of the transaction or legalize an act” that violated Constitutional Rights.
Anderson v Myers, 183 F. 223, 230 (C.C.D. Md. 1910) held that a violation of Constitutional Rights is a violation and “no allegation of malice need be alleged or proved.” Essentially, the person who violates a Right is liable because they violated that Right.
Imagine today’s officers trying to justify the violations of civil rights we have all seen (Garner, Timpa, Lopez, Floyd, etc.) if they had to make the case before one of those courts.
There are limited protections that allow that officers may violate Constitutional Rights without liability in order to enforce laws, and to allow for ‘good faith’ actions intended to enforce laws. That starts with the word “unreasonable” in the Fourth Amendment to the Constitution’s language, and common sense tells us when that permits violations of civil rights. This concept has been around protecting a broad swath of conduct by officers, and Congress has provided additional indemnity to officials in certain situations.
The commonly cited defense used to shield police officers who violate civil rights today is referred to as “qualified immunity” and it was a relatively recent construction from the courts.
There is a lot of discussion about this topic today, and two places provide an excellent treatment of it.
- The Cato Institute project www.unlawfulshield.com
- The Federal Court ruling in the Southern District of Mississippi by District Judge Carlton Reeves in the case of Clarence Jamison v Nick McClendon, 3:16-CV-595-CWR-LRA.
Both are well worth the read. Both cover the technical elements and evolution of that concept.
Essentially, the genesis of this recent concept of ‘qualified immunity’ is found in Pierson v Ray, 386 U.S. 547 (1967). It was a case where police officers arrested protesting citizens under an “anti-loitering” statute that was later found to be unconstitutional. Everyone agrees, the protesters were doing nothing illegal, and the citizens had civil rights, and those rights were violated.
Now the next legal question: Are the officers liable, and required to make restitution to citizens whose rights were violated? That is where the case raises an interesting question.
The Pierson case was a novel and dubious extension of the idea that acting in “good faith” could be a defense for violating Constitutional Rights. The Court changed perspective from "rights were violated, restitution is due" to "rights were violated, absolution is due" because making restitution would be a financial burden to officers. It held that, “[p]art of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause” and the court decreed that the officers were not required to make restitution to those whose rights they had violated because the officers had “qualified immunity” from liability.
Consider what the courts have done here. No longer is a civil rights violation case about the victim whose rights were violated, and who pleads for justice and restitution. Even when everyone agrees that a violation occurred and the victim was damaged (physically, and money and time stolen by the judicial system), the courts focus has been on finding expanding ways to say, "because an officer was involved, you will receive no restitution because that would inflict financial damage to officers and law enforcement".
Now, in light of that, intelligent citizens first question the need for this qualified immunity concept, given the general protections that have always existed for officers “acting in good faith”. Observe that “probable cause” has always permitted civil rights violations by officers. That is simply another way to clarify “unreasonable (searches and seizures)” as it is stated in the Constitution. That concept was always accepted by citizens.
The novelty is found in the idea that even though everyone can agree that your rights may have been violated unreasonably, there may be no liability to the officer for violating those rights if the officer’s defense for unlawful arrest was essentially, “I was acting lawfully, and acting in good faith upon a specific law”.
That reflects an inefficiency in any society, and that local “anti-loitering” law guided the actions of officers until it was declared unconstitutional. The courts were just allowing that as long as the conduct of the officers was lawful, and the officers were acting on that law (before it was decreed to be unconstitutional) then there was no liability to the officers for that Rights violation of arrest.
One could observe that “in good faith” the officers expected that they were enforcing a valid local law that the officers could reasonably believe should have been vetted for conflicts of laws. Arguably, it is not the job of an officer to determine which “laws” to enforce and determine which law controls when there are conflicts, or to even study all laws to find those conflicts. Reasonable people can understand the challenge created by such a conflict of laws.
The legislators who wrote and voted for the bad law bear a lot of responsibility for causing the unlawful arrests suffered by the good citizens who were doing nothing wrong in Pierson v Ray. Perhaps the citizens could have prevailed by naming the local legislators as responsible for the violation of their Right to be free from unreasonable seizures, or perhaps someone else is responsible. That is the critical clarification that the Supreme Court should have illuminated, but failed to do so. Everyone agrees that the rights of the citizens in Pierson were violated, and someone should have been liable for restitution if the liability had passed beyond the officers who made arrests based on that local law.
Another case cited by officers who violate civil rights is Harlow v Fitzgerald, 457 U.S. 800, 818 (1982) wherein the court refers to “reasonableness of an official’s conduct as measured by reference to clearly established law” deeming that liability remains with the defendant who violates “clearly established statutory or constitutional rights of which a reasonable person would have known” (at 818).
Intelligent citizens are puzzled by this nonsensical court creation. An actual violation of civil rights happened, often with video evidence today. Why does the question of whether there is liability not depend entirely upon what happened at the scene between the two parties who are actually in the courtroom...?!?!
Further, citizens who know that every high school student studies US Government ask, “Who is this reasonable person, and what education about rights can this mythical reasonable person be expected to have? And then, what education about rights can the selected, vetted and trained police officer who actually violated my rights be expected to have?” The Court tries to articulate that it is an “attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also a need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.”
Responsibility is shirked by officers who claim, “I am a reasonable person and I didn’t know that I was violating that citizen’s civil rights…” We must critically observe here that officers are required to have a different knowledge base, well beyond what a “reasonable person would have known”. It could be argued that “reasonable persons” who are not officers might not know laws or how to enforce them, including the Constitution and traffic laws and other minor public safety laws, might not know how to fire a weapon, or how to activate the lights on a police car. Yet officers are vetted prior to hire and specifically trained for the job. Law enforcement academy and department-level training must include laws (how else could an officer enforce laws?) beginning with the highest law, the Constitution, and while studying the Constitution it is impossible to not learn the rights of citizens more effectively than average "reasonable" high school students. No, officer training is specialized and required in order to receive the badge, and thus “reasonable officers” are always expected to know civil rights and the Constitution. It is dishonest to apply this fictitious “reasonable person” standard to a, “well trained law enforcement professional, trained at taxpayer expense, and equipped at taxpayer expense with weapons, and vested with arrest power and other powers”. With power comes responsibility. Slackers need not apply.
Nobody with common sense believes this “reasonable person” standard changes whether civil rights were violated, or changes whether there is liability and restitution due for the Damage Done. Civil society requires that everyone, even “reasonable people”, understand and respect the basic rights of citizens.
As citizens have seen in recent years, officers have violated civil rights and received no reprimand from courts for increasingly outrageous violations of civil rights. Federal judges long ago ceased pretending there is “importance of a damages remedy” in the scales of justice when civil rights are violated.
Yet, a violation of your Constitutional Rights is a violation of your Rights.
Section 1983 of Federal Law says the violator is liable.
So if the officer violated civil rights, but was not liable for that violation, SCOTUS should have identified where liability resides...but failed to do so in the 1967 case.
So what has the Supreme Court done to the rights of citizens…?
Consider the case of Mr. Eric Garner in New York City. Officers arrived to arrest him to begin the legal process of imposing penalty for failing to pay taxes on the cigarettes he was selling. Everyone can see on the video that he was standing with his hands up, so he is not using physical force to resist or fight the officers, and he is a large man who had his hands up and was moving slowly, so he doesn’t present a risk of fleeing. The officer sneaked behind Mr. Garner, reached up and put the citizen in a choke hold and held it until he was dead. That was murder. That is the accurate description of what video shows. That was not “acting lawfully” because there is no law that describes/permits “immediate street death penalty for failure to pay taxes on cigarettes”. Obviously Mr. Garner’s civil rights were violated. Now, different words were used by the officer and his attorneys to describe what happened. The result of the Federal civil rights violations trial was that the officer was found to have no liability for violating the civil rights of Mr. Garner, and the officer after the first trial for civil rights violations kept his job and pension and even received pay increases after this murder. Everyone with common sense knows that is a dishonest conclusion of the legal case. Police – community relations suffer severe damage when events like this happen, but the lack of justice causes even more severe damage to the reputation of our courts.
There must be justice. Because the courts are the protectors of civil rights. And only dispensed justice changes officer behavior in the next case. And only changed officer behaviors will make the streets safe for citizens.
If the officer who murdered Mr. Garner had been convicted of murder, there would never have been another suffocation death by police in this country. Indeed. George Floyd, Carlos Ingram Lopez, Tony Timpa and all of the others would still be alive today.
It should be noted that the Court has treated qualified immunity as a common law doctrine created by a judge. See Pearson v Callahan, 555 U.S. 223, 233-34 (2009).
It is not a law, it is a creation of the courts.
Creeping into reaches unintended, Federal Courts have expanded qualified immunity to claim that the law broken must be “clearly established” (in Harlow), and that immunity covers “all but the plainly incompetent or those who knowingly violate the law” (in Malley v Briggs 475 US 335 1986), and then creeping into “for the law to be clearly established, it must have been ‘beyond debate’ that [the officer] broke the law”. Judges and attorneys like to debate, so this seriously diminishes the rights of citizens.
The Fifth Circuit even went so far as to state that it doesn’t matter if “we are morally outraged, or the fact that our collective conscience is shocked by the alleged conduct…[because it] does not mean necessarily that the officials should have realized that [the conduct] violated a constitutional right.” (Foster v City of Lake Jackson, 28 F.3d 425, 430 – Fifth Cir. 1994).
How dishonest is it to claim that abuses and even murder by officers is not known to violate the constitutional right to be “secure in their persons”…? Officers spent time in a training academy before they were put on the streets. Makes one wonder what course grades officers must achieve in order to graduate…
In 2019 legitimate civil rights of citizens were further dismissed when Corbitt v Vickers (929 F.3d 1304, 11th Cir.2019 – officer shot a kid laying on the ground) explained to us that “Vickers is entitled to qualified immunity because…there was no clearly established law making it apparent to any reasonable officer in Vickers’ shoes that his actions in firing at the dog and accidentally shooting [a child] would violate the Fourth Amendment.”
That is somewhat like the court saying, 'Shooting a gun is not clearly established to create risk to humans, and nobody could be expected to be careful about where they were firing a gun...so there is no civil rights violation from the officer shooting your kid while trying to shoot that playful dog for reasons unknown, really...who pays attention to where they are pointing a gun?...and the officer carelessly shooting a gun has no liability for causing injury and medical bills and lifetime trauma to your 10 year old child who was just laying on the ground and who the officer carelessly shot...but too bad about your brat of a kid being shot and all...'
Wow. 1) Why does the Supreme Court not know that the Constitution is "primary" and “clearly established" law?!?! 2) Could any trained officer who citizens allow on the streets really be that incompetent and a danger to our children? 3) Are our courts just intellectually dishonest? 4) Would "EQUAL JUSTICE UNDER LAW" be dispensed if someone who was not a police officer did the same, and shot a child just laying on the ground in a park at a family outing?!
It is as if the Courts are saying that “officers are not smart enough to have paid attention in high school or during class at the law enforcement academy where they trained, and they are not expected to have learned the Constitution and its Amendments, couldn’t possibly know civil rights protections of citizens…at least they are not expected to have learned the nation’s most prominent law, the Constitution and civil rights, as well as they learned the minor traffic and public safety laws of the city or state that they enforce when they arrest citizens and violate those rights.” If that could possibly be true, then how in the world did these deficient officers ever graduate from a law enforcement training academy? And how was the curriculum determined at that law enforcement training academy, and is that academy training even accredited or credible? What actually is the standard required for graduation from law enforcement academy??
Further, the courts have created some procedural mechanisms that make it difficult for citizens to achieve the justice intended by the Constitution and Section 1983. Essentially this has been done with a mindset of, “Let’s not burden these public officials who need to get back to work.”
Nobody can pretend that citizens didn’t need to get to work, family dinners, meet friends, watch a child play, or any number of other activities when officers violated their civil rights. Time is stolen. Freedom is stolen.
That is exactly the point of the civil rights violation lawsuits!
All of the creeping legal jargon and machinations ignore that common sense tells every good and intellectually honest citizen that violations of the Constitution’s civil rights occurred, and restitution is required for the damages suffered by citizens.
Let's be logical. Logic says that this notion of “qualified immunity” has evolved from precedents that allow it is Constitutionally “reasonable” for an officer to initiate a violation of your Constitutional Rights (grab or hold a citizen, handcuff or arrest a citizen, lock a citizen in jail, and even in certain cases to injure or kill a citizen) when:
- A crime is being committed, or is about to be committed, and force is required to stop that crime.
- A threat to the community exists, such as when a terrorist threatens to detonate a bomb, and force is required to keep the community safe.
- An immediate threat exists to the safety of an officer, such as a suspect charging at an officer with a weapon, even when no other crime has yet been committed.
Makes sense. Those are “reasonable” circumstances in which civil rights may be violated without liability or restitution.
Short of those exceptions, someone must be liable for violating civil rights and must owe restitution.
That said, it has also been allowed that officers may make mistakes. In certain situations, even when a person is not committing a crime or threatening the community or an officer, an officer may not have liability for violating those Constitutional Rights if the officer acts lawfully and reasonably believes, and a prudent person could also reasonably believe, that the officer was acting in good faith to enforce a law or keep the community safe.
For example, an officer might tackle and injure a person waving a realistic toy gun who does not create an actual threat to the safety of a community, in the belief that removing that gun from the person is lawful conduct of an officer. It is easy to misread that situation, and if the officer acts lawfully and in good faith, no liability may exist. Reasonable people can agree.
The case then explores questions like, “What are the facts? Did the officer act lawfully? Was there ‘good faith’ in the officer’s actions, and were the officer’s actions reasonable given the circumstances? What law was the officer acting upon? Could the situation have been handled in any other way? Was the officer acting with personal bias or with malice? Would reasonable people agree? Etc.”
Was the officer acting of his/her own initiative, or with personal malice? A little common sense can discern whether personal liability for that violation of civil rights exists. That immunity from liability is usually readily evident in the actions of good officers.
To compound illogic, courts have gone off the rails of common sense with procedural obstacles to restitution for valid violation of civil rights claims. These procedural mechanisms are addressed quite well by District Judge Carlton Reeves in Jamison v McClendon, 3:16-CV-595-CWR-LRA.
If Section 1983 was created to make the courts “guardians of the peoples’ federal rights”, what kind of guardians have the courts become? One only has to look at the evolution of the doctrine to answer that question.
Once, qualified immunity protected officers who acted in good faith. The doctrine now protects all officers, no matter how egregious their conduct, if the law they broke was not “clearly established.”
This “clearly established” requirement is not in the Constitution or a Federal statute. The Supreme Court came up with it in 1982. In 1986, the Court then “evolved” the qualified immunity defense to spread its blessings “to all but the plainly incompetent or those who knowingly violate the law.” It further ratcheted up the standard in 2011, when it added the words “beyond debate.” In other words, “for the law to be clearly established, it must have been ‘beyond debate’ that [the officer] broke the law. It does not matter, as the Fifth Circuit has explained, “that we are morally outraged, or the fact that our collective conscience is shocked by the alleged conduct…[because it] does not mean necessarily that the officials should have realized that [the conduct] violated a constitutional right.” Even evidence that the officer acted in bad faith is now considered irrelevant.
The Supreme Court has also given qualified immunity sweeping procedural advantages. “Because the defense of qualified immunity is, in part, a question of law, it naturally creates a ‘super-summary judgment’ right on behalf of government officials. Even when an official is not entitled to summary judgment on the merits – because the plaintiff has stated a proper claim and genuine issues of fact exist – summary judgment can still be granted when the law is not reasonably clear.”
And there is more. The Supreme Court says defendants should be dismissed at the “earliest possible stage” in the proceedings to not be burdened with the matter. The earliest possible stage may include a stage in the case before any discovery has been taken and necessarily before a plaintiff has obtained all the relevant facts and all (or any) documents. If a court denies a defendant’s motion seeking dismissal or summary judgment based on qualified immunity, that decision is also immediately appealable. Those appeals can lead all the way to the Supreme Court even before any trial judge or jury hears the merits of the case. Qualified immunity’s premier advantage thus lies in the fact that it affords government officials review by (at least) four federal judges before trial.
Each step the Court has taken toward absolute immunity heralded a retreat from its earlier pronouncements. Although the Court held in 2002 that qualified immunity could be denied “in novel factual circumstances,” the Court’s track record in the intervening two decades renders naïve any judges who believe that pronouncement.
Federal judges now spend an inordinate amount of time trying to discern whether the law was clearly established “beyond debate” at the time an officer broke it. But it is a fool’s errand to ask people who love to debate whether something is debatable.
Yeah. Even video of a rights violations doesn't matter much. The deck is stacked against citizens, and the Federal Courts have spent decades creating misleading and illusory obstacles to justice over obvious violations of the Constitution of the United States of America, which is “clearly established” and “beyond debate”.
The Constitution is the basis of all American law. And any officer is blatantly dishonest if they pretend that they don’t know the basic rights of citizens, but claim they know other laws that derive from and function under the Constitution, the enforcement of which other laws they claim as “lawful purpose” when they violated the civil rights of citizens.
There is an extraordinary amount of intellectual dishonesty etched into these precedents fabricated by the courts.
And the common sense of an educated populace is offended by the wordsmithing of the judges who have lost sight of the primacy of the Constitution and the rights protected by it. That wordsmithing has also disrespected both the intelligence and the training of our police officers. The Founders of this nation could not be more disappointed in what has become of our courts and the handling of the Constitution's guarantees of civil rights.
Fact: “qualified immunity” does not deny that a violation occurred, or that someone is liable, or even that restitution is due as a result of unlawful conduct. QI just says the victim cannot collect damages from that officer at the scene.
This is the epic tragedy of our time. Officers are encouraged to lie to claim that their violations of civil rights are “lawful conduct” in order to claim ‘qualified immunity’. And in an escalating cycle, courts have granted ‘immunity’ to officers in too many cases where the officer’s conduct is clearly not lawful, which encourages even more lawless conduct, to the point that courts have created a sense of infallibility among officers. This has even escalated to the point that citizens have been murdered at the hands of officers and the courts have pretended that these civil rights violations were “lawful conduct”.
Reasonable and intelligent people with common sense disagree with the judges. US COURTS have been corrupted and have become dishonest over this one concept.
And thankfully, recent advances of video technology, including in the hands of every citizen with a cell phone, have made it easier to make the truth of what happened evident to courts and juries and to the public. Now it is abundantly clear that courts and judges must respect our treasured freedoms and civil rights and must respect the preeminence of the Constitution…and the courts must again become the protectors of civil rights of American citizens.
Principal Is Responsible for the Actions of an Agent
This is a fundamental concept in law, and it applies to the actions of officers. The heart of every lawsuit over a civil rights violation boils down to one question. Either an officer is acting of the officer’s own volition and free will, or the officer is acting as an ‘agent’ for a law, or acting as an ‘agent’ following an order.
This premise is the root of the creation of qualified immunity. Think about Pierson v Ray. Officers acted "lawfully" and in "good faith reliance on a law" that said the ministers should be arrested for not "moving along". The officers did not create a reason at the scene for arresting the ministers. The officers arrested the ministers while acting as "agents" of a bad law. In every case where an officer violates civil rights, whether that violation is reasonable or unreasonable, the actions of the officer are either of the officer’s decision at the scene, or the officer is acting as an agent – enforcing a law or following an order.
In one scenario, the officer retains full responsibility for his/her actions and thus retains full liability for restitution for his/her actions. In the other scenario, responsibility and liability remain elsewhere. Only in the latter can the original concept of “qualified immunity” ever apply.
Now, citizens need our Supreme Court justices to observe that basic truth.
The Supreme Court, while granting special protections to police officers who violate civil rights, has announced that 'being a police officer is a hard job, requires quick decisions'.
Indeed. That also describes being a truck driver, waitress, welder, doctor, nurse, carpenter, mom, and so many other professions.
Top of the Supreme Court Building: "Equal Justice Under Law"...
In some locations, police unions have pressed for minor laws to expand the ‘qualified immunity’ concept into statute, ostensibly “to allow us to do our job”. That is code for “allow us more latitude to violate Constitutional Rights of citizens without liability or accountability”. While everyone is in favor of a structure of laws and some mechanism for enforcement of laws, in reality, these "special laws" proposals would just make it easier for officers to claim, “it was more acceptable for the officer to violate your Constitutional civil rights because…” That makes it harder for good citizens to secure justice when civil rights have been violated.
This movement is nonsense. Absolutely zero good citizens would ever benefit in any way from a more brutal police state that is less accountable to the clear civil rights in the Constitution.
Criminal Charges First
Before any question of Constitutional rights can proceed, one must first dispense with any criminal charges that may be filed in an arrest report. Naturally, if a court finds that a person committed a crime, what is “unreasonable” shrinks dramatically and the officer is given very wide latitude in action under that “qualified immunity” exception. Makes sense.
Chess players know that “the best defense is a good offense”. Observe that whether an actual crime is committed or not, prosecutors and law enforcement academies train officers that the first thing an officer should do after any interaction, especially if that interaction ends in an arrest, is to go on the offensive. The officer will create a report that describes the individual as a bad person, detailing reasons to arrest the individual, the more reasons the better, to force the citizen into a full scale defensive legal battle. Prosecutors are funded by a bottomless pit of tax dollars, while individuals have to pay attorneys by the hour from their own pockets. Plus prosecutors have experience and this is what they do all day. So citizens are at serious disadvantage. The cost of lawyers, the time burden, and lack of knowledge of the legal system, etc., combine to wear down citizens and convince most people to surrender and ‘just make a deal’.
So good citizens are on the streets alone facing a police mentality of, “just arrest them and get them to the station/jail, and let the attorneys deal with it”. Consequently, officers arrest too many people, thinking, “it is better to violate the Constitutional rights of 100 good citizens than allow one bad person to go free, and we make poor decisions at the scene, so just arrest them all, and let the attorneys in the prosecutor’s office protect us from civil rights violations”. That is why so many arrests are are actually violations of civil rights, and so many cases are plea bargained. The cases should never have been in the system.
And coerced plea bargains are the reason why so many cases never go to trial. About 10 million arrests happen every year, and your defense attorney is paid for getting charges dismissed in as many of those cases as he/she can handle. Your defense attorney is often motivated to just “get a decent resolution to the case against you” and may not consider your civil rights as relevant. Criminal defense attorneys do different work than civil rights attorneys. Criminal case attorneys play defense, civil rights attorneys play offense.
You stand alone once you are in the system, so it’s wise to avoid the system at all costs.
Remember that the best means of avoiding that system is smart diplomacy in any interaction.
However, sometimes no matter what you do, you encounter an officer who is prone to violence or bad decision-making, or is just illegally ‘arresting, and hoping the prosecutor can negotiate away the civil rights violation’ and you have a case for violation of Constitutional Rights. It happens.
You can observe the reasons for expansive criminal charges upon arrest; more leverage reduces risks for officers, presses citizens into settlement. That is the game. You have to decide what matters most to you.
Many Against One
Officers do the arrest and complete the arrest report paperwork. Then the attorneys in a prosecutor’s office file and pursue accusations of any crimes. You are one; you are outnumbered and are outlawyered.
Time and money are the enemies of the citizens in this process. And the entire system is designed to steal increasing amounts of time and money from citizens.
The judicial system operates with a taxpayer-funded bottomless pit of a budget and a full-time staff in the prosecutor’s office.
Most citizens have another job, cannot deal with the case full time. Most individuals have a limited budget to spend on attorneys. The hourly rate of attorneys who went to law school is higher than the hourly rate of most other citizens. You are not competing in a fair fight.
So officers can operate with a bit of the mentality of, “just arrest the citizens, file some creative writing reports, and let the attorneys in the prosecutor’s office figure it out…they can pound the citizens until the citizens are forced to negotiate a settlement most of the time anyway…”
Officers must have a lawful reason to “seize” a driver, to steal a person’s freedom and deny them timely travel to a destination. To create that lawful reason, many officers turn to trivial traffic violation laws for a “pretext” to stop a vehicle and interact with a driver. These can be minor traffic laws like ‘didn’t stop completely at a stop sign’ or ‘tail light out’ or the often very loosely interpreted ‘reckless driving’.
Read the ruling of Judge Carleton Reeves in Jamison v McClendon for some smart insights into this concept. (Find a link to the case on "Resources" tab.)
“Beyond the Stop”
Officers are trained in academies, and by their departments, to “go beyond the stop”. This means that an officer should take a moment to, ‘see if there is something more happening beyond just the reason to make the traffic stop’. And there is merit to that…as long as any time a person is detained, and any inquiry, respects a citizen’s Constitutional Rights and the officer acts ‘lawfully and in good faith’.
Our police departments hire young men and women. Young people under 25 have little real world experience, lack the wisdom and good judgment that come with age and experience. An officer can be as much a danger to the good people of the community as they can ‘protect and serve’ the community. Yet we hire the young and give them weapons and powers and tools that can inflict severe consequences into the lives of citizens, hoping that they don’t inflict too much damage before they have enough experience to be wise and prudent in how they treat people on the streets.
Most of the citizens young officers meet on the streets are more experienced than the officers. Officers must be taught to respect that.
Young officers also have been trained through many hours how to fight, how to shoot, how to kill, how to arrest, how to write reports accusing people of crimes and which words will trigger actions by the prosecutor’s office. These are rights violations, whether “unreasonable” or not.
If they spent the same number of hours learning how to respect people and respect civil rights, there would be no protests.
Young officers must ‘see the people’; must know how to discern the difference between a drunk driver and a tired business executive driving home from working late. Yet training cannot make up for lack of wisdom and/or poor judgment.
It should also be noted that a badge does not automatically grant any level of good judgment, common sense, common decency, humanity, credibility or integrity. Those things must come from within the individual wearing the badge, and people either have those things in their character or they do not long before they are hired to be an officer. Good hiring decisions are required. And good training is required.
Officers Must Admit Errors, and Community Relations
One violation of civil rights by an officer, especially as serious as an unjustifiable murder, can set back community relations for police officers so badly that the lawless conduct cannot be undone by 1,000 officers working on building community relations through their entire careers. Who can trust officers who ask citizens to “step out of the safety of your car”, or officers who request voluntary permission from a citizen to search your vehicle when the officer has no warrant or legitimate probable cause, as in the Jamison case? There are real risks, the Damages can be substantial, and in the era of qualified immunity courts provide no justice.
All of the World’s legal systems are also reflected in the World’s religious traditions. Most teach the same things in similar ways. For convenience, and because most Americans know it, we are going to refer to the ubiquitous Ten Commandments.
A. “Thou Shalt Not Steal”
So that we all are clear, when an officer arrests you for no valid reason, he/she is stealing from you.
That officer is stealing your money and your time and probably your peace of mind, and maybe even your good health too. The money you spend on attorneys to defend yourself, and other costs, is stolen by the action of that officer, whether any money goes into the officer’s pocket or not.
And time is the one thing you cannot ever recover, once stolen. So theft of time is the most serious of all thefts.
Of course, by deploying all of the resources of a prosecutor’s office and courts, and etc., officers are also stealing tax money from every citizen who pays taxes…! Taxpayers should demand accountability for municipal budgets. Validity questions of police departments and prosecutors are legitimate questions.
“Thou shalt not steal…a good citizen’s time or money.”
B. “Thou Shalt Not Bear False Witness Against Thy Neighbor”
When an officer lies about a citizen, embellishes the facts of an encounter to try to justify an arrest, that officer clearly violates this commandment, and all of the laws derived from it, like felony perjury. Nobody is confused about that.
Courts and judges MUST protect citizens from lawless violence, Physical Violence and Legal System Violence, by armed police officers especially when the officers admit that they know they were wrong...by committing felony perjury.
Of course, the Declaration of Independence helps form our thinking, even though it is not an instrument of law, when it instructs:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”