The most important thing about qualified immunity is who qualifies, especially for those who don’t. If your job and pension are recession proof, minimum performance bar is too low to trip over and you can hold your clientele in contempt then—as a public employee—you qualify. When you have nothing to fear from working stiffs who might be afraid of missing car payments or being turned out on the streets in a market whipsaw–it is silly to consider yourself “equal.” Just as when dealing with landlords, banks and employers—the protected and served had better stay on your good side.
The unfake newsologists, who report looting, arson and riot as kinds of philanthropic community service, give qualified immunity a wide berth as a general rule. If anyone succeeded making cops accountable it could deliver a mortal wound to the social justice industry. The business of concern for human suffering requires a steady supply of victims in the pipeline.
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Mainstream media wears us down with daily bait and switch. That’s why, on occasion, one of them makes rhetorical contact with reality. This time it’s a scribe high enough up the food chain to leave butt prints on executive commode seats. With the column “The Crazy Fat Lady fights police impunity”, George F. Will noticed this malign cancer metastasizing on American justice. Before anyone gives Will, or his syndicator The Washington Post Writers Group, too much credit, keep in mind—it didn’t take a political MRI to see this deadly tumor—30 years ago.
Supposedly, serious legal arguments exist supporting the “principle” known as qualified immunity. Why else would US courts accept it? None of them though, are able to answer this question: How can amendments 1, 2, 3, 4, 7, 8, and 9 have any efficacy while this legal impediment is heeded in a court? It’s like trying to prosecute theft without established property rights.
Everybody knows the potential consequences to a neighbor who punches you in the face for voicing unappreciated opinions. Statutes were clear enough on that in 1790 before a ten point codicil was added to the constitution. Laws to restrain ordinary people from busting doors down and rifling the contents of other people’s homes had been on the books for generations. Courts, jails, pillories and gallows were in ready use to deal with such offenders.
Are there schools of historical or constitutional thought that SCOTUS hasn’t told us about? Do we have the first ten amendments to protect us from common felons? If not who, or what, can the bill-of-rights be aimed at other than agents of the state? The SCOTUS acceptance of “qualified immunity” as legal principle is an erasure of the constitutions’ most precious guarantees. The whole purpose of them was a leash on government, particularly its use of violence and coercion. If a policeman faces no penalty from criminal court after assaulting your person, silencing you or upending or seizing your belongings unjustifiably—and you can’t sue–what value is contained in any “right”? Even if damages are paid, when they come out of public coffers, how does that provide negative reinforcement to prevent assaults in future cases? Jurists, known for such effete hyper-sensitivity to courtroom affronts, cavalierly dismiss any personal offense suffered by innocent people in government clutches on the street.
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Do federal judges see a danger that the Salvation Army may try and forcefully quarter in your home and seduce your teenage daughter? Cockney enlisted men were put up in Boston homes against the wishes of their owners in the Intolerable Acts. While SCOTUS has never handed down a ruling explicitly based in the 3rd amendment lower Federal Courts have. Did they miss the fact that British troops acted as police on Boston streets, during peacetime, in the 1770’s? In Anthony Mitchell v. City of Henderson Federal Judge Andrew Gordon refused to entertain a 3rd amendment violation. This was a case of police seizing two homes, owned by a father and son, for use as “tactical” advantages against a third. They had no warrants, probable cause or even a reasonable expectation the suspect, in another dwelling, was dangerous. He left his door open and invited the cops in—but instead they invaded two other homes? The reasoning of the court went that cops aren’t soldiers and it isn’t “quartering” unless the uninvited occupants spend the night.
This complex case and the ruling on it provide a litany of the symptoms manifested in despotic disease. No one imagined the constable taking over your home to spy on a neighbor 230 years ago. The sane ones among us—don’t rule in the Federal bench–are flabbergasted by the idea today. The most profound failures of courts, mostly federal ones, are their treatments of clearly pathological and criminal behaviors by law enforcement as trivial misunderstandings. When a man’s home is demanded whimsically, from a local official with petty credentials and little potential culpability, and then he is physically attacked with enormous, pain-inducing force followed by captivity, the spirit of the bill of rights is crushed. Is it even necessary to consider the how perversely un-American the goal of this “tactic” was in the first place?
Never mind the particular words of the third amendment or where the 9th fits in. The Crown only pushed Bostonians around to save money—the Henderson and Las Vegas police do it for the sake of pushing people around. Any LEO capable of participating in such an action as happened to the Mitchells has a character undistinguishable from the most violent kind of felon.
Where, any conscientious observer must ask, is the sense of moral outrage and public duty on the part of the “honorable” justice Gordon? Not to mention hundreds of other robed facilitators turning their backs on human decency? What kind of judicial mind fails to feel the seething, righteous rage of the Mitchell family? It can only be one borne of an entitled class fearing a commonality to be kept at bayonet’s length.
Qualified immunity, in theory, only protects the “qualified” from civil culpability. The reality, however, is that as long as police are only subject to indictment by prosecutors who practically represent law enforcement—civil action is as close to justice as an aggrieved citizen is likely to get—often including instances of murder.
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Jay Schweikert cites Shenandoah County Sheriff Timothy C. Carter in his Cato Institute article “Blatant Misrepresentation of Qualified Immunity by Law Enforcement.” A passage from Carter’s op-ed that doesn’t appear in Schweikert’s article is supposed to reassure us of cop accountability before the bar.
“The 4th U.S. Circuit Court of Appeals recently denied the defense of qualified immunity when five West Virginia law enforcement officials stopped a homeless man for jaywalking, tased him four times, hit him in the brachial plexus, placed him in a choke hold, kicked him, and fired at him 22 times, killing him. There have been numerous other cases where qualified immunity was denied for extreme misconduct by government officials.”
When the sheriff must resort to a case this shocking to ordinary human sensibility to make his point how can anyone be reassured? In the first place, the exception was only denied on appeal. Secondly, none of the officers was charged with anything criminal in the matter. In another case, where qualified immunity was granted, a man was assaulted, taken into custody, booked on false charges and held for days. His only offense was standing outside his own home. The cops’ only defense was they weren’t keen on the neighborhood.
Qualified immunity has excepted cases involving grand theft, shooting children wantonly, murder, mauling compliant subjects with dogs, every kind of assault imaginable—it is impossible to cite it all here because no single database on the matter exists. Neither our legislative nor executive branches require precise logs by armed employees on the use of force. Media entities, apparently, have no desire to maintain organized records out of what is presently publicly available either. It saves their op-ed writers from the inconvenience of reckoning with the facts.
This is part of wider pattern of government and media unaccountability. The people at large, theoretical owners of every government office, desk, laptop, filing cabinet and notepad, are consistently deprived of details vital to common safety and public interest. American rulers and their minions have taken proprietary control of public assets and information. As long as this seizure remains uncontested our government and its employees are a de facto superior class—with rights no one else can aspire to. Media has looked idly on for at least 30 years—Ruby Ridge, Donald Scott and the Waco incident occurred in a time slot of 6 months—the Rodney King verdict came 4 months earlier. SWAT raids, intimidating street tactics and police militarization were steadily ramped up with every year that followed—and hardly noted anywhere for the next two decades.
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The first necessary step in accountability is very simple: comprehensive accounting that is available to everyone. People who seek the professional responsibility of applying force are entitled to zero privacy applying it. Any law enforcement omission of detail dealing with human subjects must be rendered a criminal offense—potentially felonious.
A lengthy, grotesque and all-encompassing table of serial abuse of the served and protected has yet to be compiled. Major media has the resources, how many lists of supposed Trump mistruths are available? If cops can’t even keep up with the slippery “standards” journalists maintain “defunding” really needs consideration. A record of your laptop’s every keystroke lingers somewhere in Alphabet Corporation files. But where is a chronological, inclusive site detailing the scope of government unaccountability? We live in a time when teeming arsenals of snoopware pore over our every word and deed by the moment. What—with present technology—stands in the way of a microscope that looks back? Gathering the simplest details of LEO contact with the public requires laborious, elaborate effort—with no guarantee of success. Meanwhile, what they’ve got on you is as handy as getting a number out of an old rolodex.
The people of the United States are entitled to regularly updated information on the state of authority and enforcement in this union. That would start with a publicly accessible record of every instance of official action with a subject. Almost every business in the US maintains that data pace. Every search—including pat downs—must be recorded, along with a report of finds. Isn’t it far past time we found out how often our protectors fail to turn up pay dirt? If contraband is not produced with high percentage consistency then it is clear the standards of “probable cause” need tightening. We have easy and affordable means of retaining audio-visual records of every traffic stop that takes place in the US.
Whenever an officer finds physical contact, of any kind, necessary—the public is entitled to knowledge of all identities involved—as well as justification of necessity The rough justice of Alexander Williams has plagued the lowly long enough. Bullying with a badge is a serious criminal offense—it has been confused with a union negotiated fringe benefit since before the Civil War.
We need exhaustive examination on the deployment of SWAT raids, including their justifications, locations, times of day, ages and sexes of subjects within the targeted space, arrests made, property damaged or seized, injuries caused and timely, exacting information on the further disposition of the case or cases involved. Otherwise we have no conception of the necessity or justification of such actions. Lacking such knowledge prosecutorial abettors can simply let egregious cases fade away—as media does its usual due diligence. Omissions—again—must be statutorily rendered criminal offenses—prosecuted by lawyers without interests mutual to law enforcement professionals.
Easy, timely access to details of police shootings, assaults, killings and other destructive acts is vital to the public’s capability of appropriate response to government. Any trigger happy or excessively physical lawman has earned a spotlight. This isn’t remotely radical it is common sense. We should require a few minimal precautions before our beloved government gets to beat us to a pulp or kill us. When courts continually treat such incidents as trivial misunderstandings—only a brainwashed fanatic can have any concept of “equality” with the servants mastering him.
