COMPILATION AND COMMENTARY
BY LUCY WARNER
APRIL 15, 2021
AGAINST MY BETTER JUDGEMENT, I AM
CLIPPING THIS ARTICLE FROM THE NEW YORK POST, A WELL-KNOWN NEW YORK CITY RIGHT-LEANING
PAPER, BUT IT SEEMS TO HAVE REPRESENTED, AND ALMOST FAIRLY, SENATOR BERNIE
SANDERS’ COMMENTS WITHOUT EVEN A BACK-HANDED SLAP AT HIM. THERE IS THAT LITTLE
SNEER, THOUGH, OF EMPHASIZING HOW HE HAS “BROKEN WITH” THOSE OTHER DANGEROUS PROGRESSIVES “THE SQUAD” ON AN
IMPORTANT ISSUE. PROGRESSIVES AGREE ON MOST THINGS, BUT NOT ALL, ESPECIALLY IN
THE SETTING OF HOW THEY GOVERN OR EXACTLY HOW THEY WOULD SCULPT LAWS.
IT SHOULD BE POINTED OUT THAT
SANDERS IS NOT BEING HOSTILE TOWARD TLAIB, BUT SIMPLY STATING A VIEW THAT I
HAVE HEARD HIM SAY SEVERAL TIMES. HE IS COMPLETELY CORRECT IN SAYING THAT WE
MUST HAVE POLICE, BUT THEY SHOULD BE MUCH HIGHER QUALITY WORKERS THAN SO MANY
OF THEM ARE, AND HE IS RIGHT THAT IF THE STARTING PAY WERE HIGH ENOUGH THERE
WOULD BE MORE OFFICERS WITH A FULL COLLEGE EDUCATION WHO WOULD CONSIDER SIGNING
UP FOR THE POLICE FORCE. I AM GOING TO ASSUME THAT ONLY A SMALL PERCENTAGE OF
THEM ARE WHITE SUPREMACISTS, AUTHORITARIANS OR SADISTS, BUT RELIABLE
PSYCHIATRIC TESTING SHOULD BE USED ALSO TO TRY TO WEED OUT BAD APPLES FROM THE
VERY BEGINNING.
I DO THINK THAT WHAT IS HAPPENING
RIGHT NOW IN REACTION TO THE CHAUVIN TRIAL, THEN FOLLOWED BY THE DAUNTE WRIGHT
KILLING JUST A WEEK AGO, DOES SEEM TO BE A REAL EFFORT TO BRING A POLICE
OFFICER TO JUSTICE. THAT IS EXACTLY WHAT NEEDS TO HAPPEN ALL ACROSS THE
COUNTRY. POLICE OFFICERS NEED TO BE HELD FULLY ACCOUNTABLE. QUALIFIED IMMUNITY TO
LAWSUITS AND THE RARITY OF JAIL TIME FOR POLICE WHO CROSS THE LINE ARE A LARGE
PART OF THE PROBLEM, I BELIEVE. THERE ARE SIMPLY NO MEANINGFUL CONSEQUENCES. THE
FAIRLY NEW -- WITHIN TWENTY YEARS OR SO -- MILITARIZATION OF POLICE DEPARTMENTS
IS NOT ONLY UNNECESSARY, BUT IT SHOWS AN ATTITUDE BEHIND SOME OF THE POLICE USE
OF FORCE THAT OFFICERS ARE SOLDIERS AND THE PUBLIC (THAT IS US) ARE THE ENEMY.
I ALSO THINK THAT BLM AND OTHER
BLACK ACTIVITIES OF PROTEST AND RESISTANCE FOR THESE SO OFTEN POINTLESS
KILLINGS ARE THE SORT OF PUSH THAT IS DRIVING CHANGE. ALL THE LAWYERS IN THE
COUNTRY COULDN’T HAVE PRODUCED THE CHANGES FOR BLACK PEOPLE THAT EVOLVED DURING
THE DECADES BETWEEN 1950 AND 1980, WITHOUT MARTIN LUTHER KING AND OTHER
IMPORTANT LEADERS, ALONG WITH MILLIONS OF VIGILANT AND ACTIVE BLACK PROTESTORS.
WE ABSOLUTELY DO NEED POLICE, BUT THEY SHOULD DO THEIR WORK WITH HONOR.
Bernie Sanders breaks with the ‘Squad’ on defunding the police
By Emily Jacobs April 15, 2021 | 3:19pm | Updated
Top progressive pol Sen. Bernie
Sanders is breaking with his left-wing protégés over their calls to defund the
police in the wake of the killing of Daunte Wright.
Speaking to CNN Wednesday, Sanders
(I-Vt.) said he did not agree with Rep. Rashida Tlaib (D-Mich.) over her call
for “no more policing, incarceration, and militarization” after the killing of
Wright, a black man who died at the hands of a white police officer.
“No I don’t,” Sanders replied when
asked if he concurred with his fellow progressive, who has been joined in her
calls by fellow Squad members Reps. Ilhan Omar (D-Minn.) and Ayanna Pressley
(D-Mass.).
“I think that what we need to do is
to understand that there needs to be major, major police reform all across this
country,” the Vermont senator continued. “We are tired of seeing the same
thing, week after week and year after year. We do not want to see innocent African
Americans shot in cold blood.”
“So I think that’s an area that
needs significant amount of work and I hope that Congress begins work on that
immediately.”
Wright was fatally shot by a
Brooklyn Center cop, identified as 26-year veteran Kimberly Potter, during a
traffic stop Sunday.
Brooklyn Center Police Chief Tim
Gannon said the officer had intended to deploy her Taser as the man struggled
with police but fired her handgun instead.
The death heightened tensions in an
already emotionally fraught state, which is awaiting an outcome in the trial of
ex-Minneapolis cop Derek Chauvin, who is accused of murdering George Floyd when
he held his knee on Floyd’s neck for almost 10 minutes last May.
Potter has since been charged with
second-degree manslaughter.
PHOTOGRAPH -- Rep. Rashida Tlaib
called for “no more policing, incarceration, and militarization” following
Daunte Wright’s death. EPA/CRAIG LASSIG
In response to Wright’s death, Tlaib
took to Twitter to reiterate her call to defund the police.
“It wasn’t an accident. Policing in
our country is inherently & intentionally racist. Daunte Wright was met
with aggression & violence,” she wrote on the platform.
“I am done with those who condone government-funded
murder. No more policing, incarceration, and militarization. It can’t be
reformed,” she continued, reiterating her position that the police, as
currently trained, cannot protect their communities and must be defunded and
replaced.
Fellow progressive pal Omar
expressed a similar sentiment.
“We are sick and heartbroken. In the
closing days of Derek Chauvin’s murder trial, Brooklyn Center police killed
20-year-old Daunte Wright, another Black man, during a traffic stop,” Omar’s
tweet began.
“This violence is a basic part of
police interactions with communities of color,” she continued. “It must stop.”
PHOTOGRAPH -- A crowd of people
protesting to defund the NYPD in Brooklyn on June 7, 2020. Photo by Erik
McGregor/LightRocket via Getty Images
Pressley, meanwhile, kept her
message short, writing, “From slave patrols to traffic stops. We can’t reform
this.”
SEE ALSO -- Rep. Rashida Tlaib
condemns Daunte Wright shooting as ‘government-funded murder,’ wants police
abolished
All three lawmakers have previously
voiced their support for defunding the police.
For his part, Sanders has never
hopped on the “Defund the police” bandwagon, instead arguing the opposite.
Speaking with The New Yorker last
year, Sanders was questioned about a letter he sent to then-Senate Minority
Leader Chuck Schumer (D-NY) arguing that cops should be paid higher wages.
“Do I think we should not have
police departments in America? No, I don’t. There’s no city in the world that
does not have police departments,” the Democratic socialist responded.
“I didn’t call for more money for
police departments. I called for police departments that have well-educated,
well-trained, well-paid professionals. And, too often around this country right
now, you have police officers who take the job at very low payment, don’t have
much education, don’t have much training — and I want to change that.”
FILED UNDER -- BERNIE SANDERS , CONGRESS ,
DAUNTE WRIGHT , POLICE , PROGRESSIVES , RASHIDA TLAIB , 4/15/21
QUALIFIED IMMUNITY FROM LAWSUITS
AGAINST GOVERNMENT OFFICIALS IS PART OF THE UMBRELLA OF LEGAL PROTECTION FOR
POLICE ACTIONS THAT CERTAINLY SEEM TO BE WRONG-HEADED AND DAMAGING TO MANY MEMBERS
OF THE PUBLIC. YET, SUITS ARE BEING BROUGHT IN SOME CASES. SEE THE FOLLOWING LAWFARE
ARTICLE ON CURRENT ONGOING EFFORTS AT REFORM, A JDSUPRA.COM DISCUSSION
AND A SAMPLE OF A RECENT SUIT AND THE LEGAL ARGUMENTS THAT ARE BEING MADE. THIS
ARTICLE FROM JDSUPRA IS WRITTEN IN FULL DEFENSE OF QUALIFIED IMMUNITY AND LAWFARE
IS A MUCH MORE ROUNDED AND COMPREHENSIVE WRITING ON THE SUBJECT. I PERSONALLY
THINK THAT ANYTHING THAT PUTS REAL-WORLD CONSEQUENCES IN ACTION WILL HELP
CHANGE THE TREND OF TODAY’S STREET JUSTICE.
POLICING IN AMERICA
What Is Qualified Immunity, and What Does It Have to Do With Police Reform?
By Nathaniel Sobel Saturday, June 6, 2020, 12:16 PM
Nathaniel Sobel is a graduate of
Harvard Law School, where he was a Lawfare student contributor.njsobe4
PHOTOGRAPH -- Protestors stand
across from police officers in riot gear near the White House during protests
of George Floyd's killing. (Credit: Matt Kahn)
The protests ignited by the killing
of George Floyd have put a spotlight on the legal doctrine of qualified
immunity. While qualified immunity is not at issue in the prosecution of former
Minneapolis police officer Derek Chauvin and the three other former officers
who face criminal charges stemming from Floyd’s death, it is one of many
structural factors that make it difficult to hold police officers accountable
for wrongdoing. While Lawfare contributors have occasionally discussed
qualified immunity in the past, this post provides answers to some key
questions that have arisen in light of the current national conversation. (Note
that, while some states have developed parallel immunities for state law
violations, this post addresses qualified immunity only in the context of
claims brought under federal law.)
What Is Qualified Immunity?
Qualified immunity is a judicially
created doctrine that shields government officials from being held personally
liable for constitutional violations—like the right to be free from excessive
police force—for money damages under federal law so long as the officials did
not violate “clearly established” law. Both 42 U.S.C. § 1983—a statute
originally passed to assist the government in combating Ku Klux Klan violence
in the South after the Civil War—and the Supreme Court’s decision in Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics (1971) allow
individuals to sue government officials for money damages when they violate
their constitutional rights. Section 1983 applies to state officials, while
Bivens applies to federal officials. Because damages are often the only
available remedy after a constitutional violation has occurred, suits for
damages can be a crucial means of vindicating constitutional rights. When government
officials are sued, qualified immunity functions as an affirmative defense they
can raise, barring damages even if they committed unlawful acts. (Qualified
immunity is not, however, a defense to claims for injunctive relief.)
The Supreme Court has generally
traced qualified immunity back to the immunities available to government actors
when officials were sued for common law torts during the 19th century. The
basic idea is that when Congress enacted § 1983 in 1871, it incorporated the
then-existing immunities into the statute, which the Supreme Court has also
extended to Bivens suits. However, recent scholarship has called into question
the Supreme Court’s account of the government immunities available in 1871,
whether Congress intended them to be defenses to § 1983 claims, and the
coherence of the relationship between the history and the modern doctrine.
How Does Qualified Immunity Work?
The landmark case of Harlow v.
Fitzgerald (1982) articulated the modern formulation of qualified immunity that
controls today. Jettisoning past precedent that examined the “subjective good
faith” of the officer who committed the alleged violation, the Harlow court
adopted a new test framed in “objective terms.” In Harlow, the court
established that a plaintiff could overcome qualified immunity only by showing
that the defendant’s conduct “violate[d] clearly established statutory or
constitutional rights of which a reasonable person would have known.” While the
court made clear that the new standard was intended to be more protective of
government officials than its previous test, the court also stated that the
standard “provide[d] no license to lawless conduct.” “If the law was clearly
established, the immunity defense ordinarily should fail, since a reasonably
competent public official should know the law governing his conduct,” the court
wrote. But since Harlow, the court has applied the doctrine in three distinct
ways that have made it more favorable to government defendants.
First, in order to show that the law
was “clearly established,” the court has generally required plaintiffs to point
to an already existing judicial decision, with substantially similar facts. As
a result, as Julian Sanchez wrote succinctly on Twitter, “the first person to
litigate a specific harm is out of luck” since the “first time around, the
right violated won’t be ‘clearly established.’” A recent decision by the U.S.
Court of Appeals for the Ninth Circuit illustrates this point. In that case, a
SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive
damage. And while the divided three-judge panel assumed that the SWAT officers
had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless
granted qualified immunity to the officers because it determined that the
precedents the plaintiff relied on did not clearly establish a violation “at
the appropriate level of specificity.” (The Supreme Court could decide to
review the Ninth Circuit’s decision in this case as soon as Monday, June 8.)
Second, in Pearson v. Callahan
(2009), the Supreme Court altered the way in which courts apply the doctrine in
a manner that created a significant obstacle for civil rights plaintiffs. In an
earlier decision, Saucier v. Katz (2001), the high court had held that when
assessing a qualified immunity defense, courts must first determine whether
there was a violation of a constitutional right and then move on to analyze
whether the law was clearly established. But in Pearson, the justices reversed
course, allowing courts to grant qualified immunity based only on the clearly
established prong—and without ever determining if there was a constitutional
violation. As Judge Don Willett of the U.S. Court of Appeals for the Fifth
Circuit explained in a recent opinion, this creates a “Catch-22” for civil
rights plaintiffs. Because courts often take what Willett called the “simpler”
route of resolving a case based on the “clearly established” inquiry—rather
than engaging in the “knotty constitutional inquiry” of whether the officials
violated the Constitution—Pearson has resulted in fewer precedents finding
constitutional violations. In turn, as Willett put it, “ No precedent = no
clearly established law = no liability.” And according to a recent study conducted
by Reuters: “Plaintiffs in excessive force cases against police have had a
harder time getting past qualified immunity since [Pearson].”
Third, as Harvard Law professor and
ACLU lawyer Scott Michelman notes in a recent article, the Supreme Court’s construct
of a “reasonable officer” has shifted since Harlow to grant government
officials greater deference. In a 1986 decision, the high court famously wrote
that qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Since then, the Supreme Court has stated that a
defendant’s conduct is to be judged on the basis of “any reasonable officer” or
“every reasonable official”—“thus implying,” as Michelman assesses, “that in
order for a plaintiff to overcome qualified immunity, the right violated must
be so clear that its violation in the plaintiff’s case would have been obvious
not just to the average ‘reasonable officer’ but to the least informed, least
reasonable ‘reasonable officer.’”
What Is the Justification for
Qualified Immunity?
In general terms, the Supreme Court
has offered two basic justifications for the doctrine. The Harlow Court
expressly noted that its decision sought to achieve a “balance” between
allowing victims to hold officials accountable and minimizing “social costs” to
“society as a whole.” Noting that “claims frequently run against the innocent,
as well as the guilty,” the Harlow court identified four “social costs.” First,
the doctrine aims to avoid “the expenses of litigation” by allowing district
courts to dismiss suits against officers at early stages in the litigation—and
without making fact-intensive inquiries into a particular officer’s
motivations. Second, and relatedly, requiring officials to respond to such
litigation can “diver[t] … official energy from pressing public issues.” Third,
the court worried that the threat of litigation would “deter[] … able citizens
from acceptance of public office.” And lastly—and most importantly—the court
was concerned that the threat of lawsuits could chill lawful law enforcement
conduct. The court wrote that “there is the danger that fear of being sued will
‘dampen the ardor of all but the most resolute, or the most irresponsible
[public officials], in the unflinching discharge of their duties.’” Along
similar lines, in a more recent opinion, the Supreme Court explained: “[T]he
doctrine of qualified immunity gives government officials breathing room to
make reasonable but mistaken judgments about open legal questions.”
Also at the core of the Supreme
Court’s jurisprudence is the contention that it would be unfair to hold
government officials to constitutional rules they were not aware of at the time
of the violation. The court first articulated this idea in a pre-Harlow
decision, stating that “[a] policeman’s lot is not so unhappy that he must
choose between being charged with dereliction of duty if he does not arrest
when he has probable cause, and being mulcted in damages if he does.” Then in
Harlow, the court wrote: “If the law at that time was not clearly established,
an official could not reasonably be expected to anticipate subsequent legal
developments, nor could he fairly be said to ‘know’ that the law forbade
conduct not previously identified as unlawful.” And a recent case described
“the focus” of qualified immunity as “whether the officer had fair notice that
her conduct was unlawful.”
What Are the Arguments Against
Qualified Immunity?
As law professors Aaron Nielson and
Christopher Walker discuss in a recent article, criticism of qualified immunity
can generally be separated into “two fronts of attack”: first, that it’s bad
law and, second, that it’s bad policy.
On the law, the most notable
criticism has come from Justice Clarence Thomas. In a short solo opinion in a
2017 case, he urged the Supreme Court, “[i]n an appropriate case,” to
“reconsider [its] qualified immunity jurisprudence.” As an originalist, Thomas
believes that, in qualified immunity cases, the Supreme Court should ask
“whether the common law in 1871 would have accorded immunity to an officer for
a tort analogous to the plaintiff's claim under § 1983.” But in Thomas’s view,
the modern doctrine has strayed too far from the 19th century immunities.
Rather than interpreting the statute, Thomas argued that the court’s qualified
immunity jurisprudence “represent[s] precisely the sort of ‘free-wheeling
policy choice[s]’” that are not within the providence of courts’ authority. In
a recent article—which Thomas cited in his opinion—University of Chicago law
professor William Baude explores and rejects the Supreme Court’s justification
“that qualified immunity derives from a putative common-law rule that existed
when Section 1983 was adopted.”
Another major legal criticism is
that qualified immunity stunts the development of constitutional law.
Especially after the Supreme Court’s Pearson decision (discussed above), as
Judge Willett lamented, the consequence is that “[i]mportant constitutional
questions go unanswered.” This is of special concern in cases involving new
technologies or practices.
On the policy side, qualified
immunity opponents contend that the Harlow Court got the balance wrong. Justice
Sonia Sotomayor—who has called qualified immunity a “one-sided approach” that
“transforms the doctrine into an absolute shield for law enforcement
officers”—captures the core of that critique in a recent opinion, which Justice
Ruth Bader Ginsburg joined. As Sotomayor put it, qualified immunity “sends an
alarming signal to law enforcement officers and the public. It tells officers
that they can shoot first and think later, and it tells the public that
palpably unreasonable conduct will go unpunished.”
Such reasoning has generally
attracted a diverse ideological coalition. Advocates of reforming qualified
immunity on the political right tend to emphasize values of law enforcement
“accountability” and defense of private property, while the arguments from the
left focus on racial justice and broader police reform efforts—but there is
nonetheless considerable overlap. Recently, a self-described “cross-ideological”
group of organizations filed multiple petitions urging the Supreme Court to
take up the issue of qualified immunity.
UCLA law professor Joanna Schwartz
argues that qualified immunity does not even fulfill the policy goals it aims
to achieve. In one article, Schwartz found that in a robust sample of cases,
“governments paid approximately 99.98 percent of the dollars that plaintiffs
recovered in lawsuits alleging civil rights violations by law enforcement,”
undermining the Supreme Court’s fears that defendant officers would have to
bear the liability themselves. And in another article, she found that qualified
immunity so rarely screens out claims before discovery and trial that it does
not serve its intended goal of shielding government from the costs of
litigation.
One more additional line of argument
is offered by the MacArthur Justice Center’s Amir Ali and Emily Clark in a
recent op-ed. They make the case that qualified immunity prevents “many [civil
rights] claims [from being brought] in the first place.” Under a 1976 statute,
Congress passed a law allowing lawyers who represent victims in civil rights
actions to recover for their time. But since those fees are not available when
a case is dismissed based on qualified immunity, they argue that “victims of
civil rights violations may be less likely to find a lawyer who is willing to
represent them and suits will not be brought.”
How and When Could Qualified
Immunity Change?
The Supreme Court created qualified
immunity and could of course overrule it, subject to its principles of stare
decisis. At the court’s private conference on June 4, it considered eight
petitions for the court to take up the issue of qualified immunity next term,
meaning that the soonest a decision on the merits could come down would be next
year. Two additional qualified immunity petitions were listed as “rescheduled,”
implying they would be considered at a future conference. The petitions
considered at the June 4 conference include two police shootings, a case where
officers deployed a dog on a suspect who had already surrendered, and a case
where police used a Taser on a man who died while in custody, among others. The
Supreme Court could announce its decisions from the June 4 conference as early
as the morning of Monday, June 8. There is no guarantee it will hear any of
them, however—on May 18, the court declined to hear three qualified immunity
cases.
In addition, Congress could reform
qualified immunity legislatively since the doctrine is generally understood to
be, as Michelman describes, “the product of statutory interpretation rather
than constitutional elaboration.” Just this week, Libertarian Rep. Justin Amash
and Democratic Rep. Ayanna Pressley introduced a bill in the House. That bill
amends § 1983 to add the following language:
It shall not be a defense or
immunity to any action brought under this section that the defendant was acting
in good faith, or that the defendant believed, reasonably or otherwise, that
his or her conduct was lawful at the time when it was committed. Nor shall it
be a defense or immunity that the rights, privileges, or immunities secured by
the Constitution or laws were not clearly established at the time of their
deprivation by the defendant, or that the state of the law was otherwise such
that the defendant could not reasonably have been expected to know whether his
or her conduct was lawful.
Democratic Sen. Cory Booker also
introduced his own proposal. Booker, along with several other Democratic
senators, has introduced a Senate resolution that calls for Congress to amend §
1983.
Topics: Policing in America, Civil
Liberties and Constitutional Rights
Tags: protests, Police Reform
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WEBSITE.
March 5, 2021
Qualified Immunity: The Commonly Misunderstood Defense and Opponents’ Efforts to Expose Law Enforcement Officers to Financial Ruin
J. David Marsey
Rumberger | Kirk
Recent unrest has thrust the
doctrine of qualified immunity into the spotlight. Many of those who oppose law enforcement
frequently misrepresent the nature, extent, and intent of this limited
immunity. Doing so fosters the “us
versus them” mentality and abrogation advocates suggest the immunity is an
example of “rules for thee not for me.”
“After all,” they argue, “the average person on the street does not get
any immunity from suit, why should law enforcement officers?” Whether by accident or design, opponents of
the immunity falsely claim the doctrine insulates officers from police
misconduct claims and the financial consequences of violating the
constitutional rights of the people they are responsible for policing. A movement is afoot to strip officers of this
very limited immunity under the guise of protecting the public and permitting
those victims of police misconduct to recover from their oppressors. Nothing could be further from the truth.
The doctrine of qualified immunity
protects all government officials acting within the scope of their governmental
duties, not just law enforcement officers.
As a threshold manner, constitutional theories of liability are
available only against the government and government officials, not against
private citizens. Private citizens
simply cannot sue each other for a violation of the constitution. In order to qualify for protection under
qualified immunity, a public official must first prove he was acting within the
scope of the discretionary authority provided by his or her governmental
position. This applies equally to all
governmental officials. The purpose of
qualified immunity is to permit officials to carry out their discretionary
duties without fear of personal liability or harassing litigation. Court’s unanimously recognize the doctrine is
designed to protect routine decision-making and actions by government
officials, but expressly excludes the “plainly incompetent or those who
knowingly violate the law.”[i] Qualified
immunity is not carte blanche to violate the constitutional rights of others,
but instead, provides a defense from personal liability for routine, good-faith
decisions by government officials, including law enforcement officers.
. . . . Stated another way, if reasonable minds can
disagree, and they often do, than an officer should not be held personally
liable for his or her conduct. If an
officer’s conduct is clearly prohibited, or if the conduct so clearly violates
the Constitution that a specific case defining the illegal conduct is not
needed, then the limited immunity does not apply, and the officer may be held
personally liable.
. . . . What person in their right mind would want
to take enforcement action when their reasonable, good faith conduct could
result in personal sanctions for a violation of the Constitution, even in the
absence of any prior decisions notifying them their conduct was
unconstitutional? The net effects of the
abrogation of sovereign immunity are real, foreseeable, and catastrophic. Should current efforts to abrogate this
important protection prevail, there are dark days ahead for government
officials of all types who inadvertently, unintentionally, and unknowingly
violate the Constitution.
[ii] Kyllo v. United States, 533 U.S. 27 (2001)
I AM INTERESTED IN THIS CASE IN SAN
JOSE, CA. I THINK SUING MAYORS AND POLICE OFFICIALS MAY BE EVEN MORE IMPORTANT
THAN SUING INDIVIDUAL POLICE OFFICERS, BECAUSE WHEN PRESSURE COMES ON THE
OFFICERS TO TOW THE LINE FROM THE TOP IT IS MUCH MORE LIKELY TO HAVE ENOUGH
EFFECT TO CHANGE THE SITUATION.
San Jose mayor, police leaders sued over police response during George Floyd protests
by Lloyd Alaban
MARCH 11, 2021
PHOTOGRAPH -- Protesters clashed
with San Jose police during the third day of protests Sunday over the death of
George Floyd, an unarmed black man. Photo by Luke Johnson.
Ten months after thousands of
protesters poured onto San Jose streets to protest the police killing of George
Floyd, a coalition of civil rights groups are suing the city and its leaders
for injuries caused by police.
The lawsuit, filed by the Silicon
Valley/San Jose NAACP, nonprofit San Jose Peace and Justice Center and 14
individuals injured in the protests, was filed Thursday in the U.S. District
Court of the Northern District of California. It names San Jose Mayor Sam
Liccardo, City Manager David Sykes, former Police Chief Eddie Garcia and a few
San Jose Police officers as defendants, including Jared Yeun.
The lawsuit has called into question
how the city handled the protests, whether force by the police was justified
and the legality of the city’s curfew, which the attorneys said violated the
protesters’ First Amendment rights.
One of those plaintiffs, San Jose
resident Michael Acosta, lived a few blocks away from where the protest began.
He joined the protests and a short time later began to hear explosions, and
something struck him “violently” in the face. His vision began to fade.
Acosta lost his left eye, and now
uses a prosthetic.
Just blocks away, Rev. Jeff Moore,
the president of the local NAACP, arrived on the scene to join protesters,
fearing that the protest would soon turn violent. Former Chief Garcia promised
Moore a chat at City Hall before the protests spiraled out of control.
Garcia never came.
Instead, a tearful Moore said he and
protesters were met with a police force that he’d “never seen this aggressive.”
Police dragged some of the protesters surrounding him to the ground, and Moore
was caught in the middle.
“The most embarrassing part of this
whole moment is how our City Council and how our mayor has responded to those
kids,” Moore said about the protestors. He said he still has side effects from
the tear gas deployed by police that day.
“It’s been a travesty for the
leadership for this city not to step out and do more for those injured,
arrested wrongly or defending themselves from the aggressiveness of the
police,” he added.
The lawsuit comes after the
department faced widespread criticism for its handling of the protests in
downtown San Jose.
The department has begun to soften
its practices, including introducing “less lethal” weapons and expanding a
pilot program to allow mental health professionals to respond to crisis calls
instead of just police officers. San Jose Mayor Sam Liccardo endorsed such
measures last year but stopped short of giving into demands from activists to
defund the police, favoring reform instead, garnering criticism from activists
looking for funds to be redirected to other avenues such as mental health.
Local activists, like Raj Jayadev of
Silicon Valley De-Bug, want Liccardo to stop prioritizing public funds for
police.
“In the place of police, what the
city could be doing is investing in solutions that get to the root of the issue—social
services, housing,” Jayadev said. “Rather than just filling the bank of the
police department.”
Liccardo’s spokesperson Rachel
Davis, the SJPD and city manager’s office declined to comment on the lawsuit.
Davis did however respond to the SJPD’s use of rubber bullets.
“I think it is imperative to point
out that the mayor proposed to ban the use of rubber bullets in crowded
settings,” Davis said in a statement. “The council heard the ban at the Sept.
16 council meeting, where the mayor was the lone vote to ban rubber bullets,
while the rest of the council voted to not ban them.”
Davis said the mayor proposed
reforms to build public confidence in the police, including moving
investigations of police misconduct to an independent agency and changing the
process to discipline police.
The Lawyers’ Committee for Civil
Rights of the San Francisco Bay Area will represent the plaintiffs in court.
Attorneys representing the victims
are asking for plaintiffs in the lawsuit to be compensated and for significant
reforms in San Jose police tactics and training. One of the attorneys Thursday
said it would be a “pretty straightforward” case to bring up as a class-action
suit since so many people had been injured. The attorneys are also alleging
that even after police fired projectiles in the crowd, none of them offered
medical help to those injured.
“Demonstrators were met by the city
of San Jose with brutal and racially-targeted oppression,” said Tifanei
Ressl-Moyer, an attorney for the LCCRSF.
Attorneys are also looking to fight
a citywide curfew imposed the night of the protests, alleging that the curfew
violated the protesters’ First Amendment rights and led to a number of false
arrests.
Local teacher Tomara Hall, who is
leading a campaign to remove SJPD presence from the San Jose Unified School
District, said she’s hopeful the lawsuit will hold SJPD accountable, but is
less optimistic that reforming the department from within will help.
“This is something that really needs
to be defunded and dismantled, piece by piece and replaced with more community
oversight commissions,” Hall said.
Though Acosta doesn’t have his left
eye anymore, he said he doesn’t regret his decision to stand with Black Lives
Matter. His remaining vision is different, and he doesn’t always recognize
himself when he stares into the mirror. It’s hard for him to see in low
contrast.
“The world seems darker sometimes,
narrower, harder to focus,” Acosta said.
Contact Lloyd Alaban at
lloyd@sanjosespotlight.com or follow @lloydalaban on Twitter.
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