The bill would create new federal crimes, impose federal police over the will of local officials and voters and shield police officers from virtually any civil liability, even in cases of egregious misconduct.
Remember how the prosecution of individuals at both state and federal levels for violations of civil rights under the dual sovereignty exception to the Double Jeopardy Clause was the right thing to do because nobody should get away with a crime when you didn’t like it? Well, why shouldn’t police enjoy the same benefit? What, you didn’t see how the tables could be turned on you?
The bill would create new federal crimes for killing, attempting to kill or conspiring to kill a state or local law enforcement officer who works for a police agency that receives federal funding. Because nearly all police agencies receive some sort of federal funding, including most local sheriff’s departments and town police, the bill basically makes it a federal crime to kill, attempt to kill or conspire to kill any police officer (as well as any judge or first responder). The bill would also allow for the federal death penalty in such cases, and it would impose limits on the ability of defendants to file habeas petitions in federal court after they’ve exhausted their appeals.
So what if your state has no death penalty. So what if a cop is killed and the accused is acquitted. If you were all in favor of a second chance to convict before, why not now? Don’t blue lives matter?
And it’s not just for killing a cop, which might strike some as sufficiently extreme to justify putting the accused through a second prosecution and the potential of death. It covers assault as well. You know, when the cop’s fist is viciously hurt by the perpetrator’s face?
But the second prong of the law might have a much more significant impact. As of now, police are protected from their violations of people’s constitutional rights, such as the right not to be killed by police for no good reason, by qualified immunity. Some even suggest that QI is a bad thing, empowering police to engage in violence with impunity, and that we would do well if the Supreme Court reversed this judge-made hug to law enforcement.
Cornyn: Hold my beer.
Under this bill, even if you can show all of that, if the police can show that the violation and resulting injuries were “incurred in the course of, or as a result of, or . . . related to, conduct by the injured party that, more likely than not, constituted a felony or a crime of violence . . . (including any deprivation in the course of arrest or apprehension for, or the investigation, prosecution, or adjudication of, such an offense),” then the officers are liable only for out-of-pocket expenses. What’s more, the bill would bar plaintiffs from recovering attorneys fees in such cases.
The depth of this “tweak” might not be immediately apparent, so further explication helps.
This means that if the police raid your home with a search warrant for pot and shoot you dead, even if your family can show that the shooting was unlawful, the police would be liable only for something like funeral expenses if they could show that “more likely than not,” you had sold some pot, or at some point possessed a large enough quantity of the drug to merit a felony charge.
And that just scratches the surface of the games to be played to impugn the victim of police violence. The hard, cold fact is that most of the people harmed by excessive police violence, by violating constitutional rights, are guilty of something. Sure, there are completely innocent victims, but they’re few and make a big splash when they are harmed. For the most part, the cops come down hard on people who you might not want to invite for dinner. Here’s the rub:
Even the guilty are entitled to survive encounters with police. Even the guilty are entitled to constitutional rights. I know, but they are!
If this prong of the law is enacted, it gives police carte blanche to beat, maim or kill a less-than-pristine perp at will. The worst that can happen, assuming QI is unavailable, is the municipality pays negligible out-of-pocket costs, like cleaning up the blood on the floor. The standard for invocation of the impure victim’s felonious motives is preponderance, not beyond a reasonable doubt. If anything, this creates an incentive to kill rather than maim, since dead perps don’t get acquitted.
But wait! Even that won’t be likely, because of the other piece, the elimination of attorney’s fees. At present, the risk of a lawyer taking on a § 1983 case is huge; despite how it might appear from the media, they’re exceptionally hard to win and the damages are rarely the big numbers we see in those few high-profile fiasco cases. But between the elimination of punitive damages and attorney’s fees, the risk becomes untenable.
Removing the ability to collect compensatory or punitive damages, or even recover attorneys fees, basically means it would become even more difficult for victims of police abuse to find representation. If there’s even the slightest chance that the police could convince a jury that the plaintiff engaged in conduct that was even “related” to a felony or violent crime, there’s no incentive for them to take the case.
Hard as it is to imagine, lawyers’ kids need to eat too, and lawyers who fight the good fight do not get free food at the supermarket. Lawyers take a vow to zealously represent their clients, but they do not take a vow of poverty. This law would impoverish lawyers who would take on these cases, making it impossible for maligned victims of police violence to find representation. It’s just not financially viable for lawyers.
The only thing worse than a world with lawyers is a world without them, as there will be no one to fight against the police. While this bill is so extreme, so wildly favorable to police, that one might expect it to be laughed out of Congress, bear in mind these are odd times. While the Democrats in 2009 might not have put much effort into enacting reform legislation when they could, the Republican majority in Congress might have learned from their mistake.