Hype and Passion Cost Us Qualified Immunity Reform

There are many reasons, often unstated, why the Supreme Court decides against granting certiorari to a case. But after Senate negotiations failed to produce a reform bill that included qualified immunity,* the last hope was that the Supreme Court would take up one of the cases before it to undo its own creation of a defense that had no statutory basis and  regularly produced outcomes that ran from the bizarre to the god-awful.

But in James v. Bartelt, the Court denied cert, with a dissent from Justice Sonia Sotomayor (See page 65 of the order list).

On May 24, 2011, Willie Gibbons was shot and killed by a police officer. It is undisputed that the officer who shot him knew that Gibbons suffered from a mental illness and that he was holding a gun to his own temple. It is also undisputed that Gibbons never threatened the officer in any way and that the encounter was over within seconds, leaving Gibbons fatally wounded. The remaining facts surrounding his tragic death are disputed, including whether Gibbons’ right arm was by his side or raised in surrender, whether the officer instructed Gibbons to drop the weapon or spoke unintelligibly, and whether the officer gave Gibbons a chance to comply or opened fire immediately. In light of these substantial disputes of material fact, the District Court declined to grant qualified immunity to the officer on summary judgment. The Third Circuit took a different view of the facts, reversing and granting qualified immunity.

Justice Sotomayor isn’t the only justice who lacks a fondness for QI. Justice Thomas does as well. Justice Sotomayor isn’t the only justice who tends toward empathy for those needlessly killed by police. Justice Kagan does as well. So too does Justice Breyer. So why was Justice Sotomayor the only one to dissent? Why was her dissent joined by no other justice? Why did it fall to the Supreme Court to clean up its own mess when a political branch of government, the Senate, was ever-so-close to putting an effective end to QI?

Between Democrat Cory Booker and Republican Tim Scott, there were politics to be faced. Scott’s compromise was to eliminate qualified immunity with the condition that the individual police officer could not be held liable, but only his municipal employer. This was unacceptable to Booker, as it would let the cop “go free” of responsibility for his actions. The only problem was that this dispute was a lie, one perpetrated by the passionate advocates for reform who hyped the crap out of QI elimination as being the magic bullet that would end police brutality and officers engaging in unconstitutional conduct.

To get the unduly passionate to care about QI, reform proponents sold a bill of goods that this protected cops from criminal prosecution and empowered them to shoot first and, well, shoot first. But, of course, QI was a defense to a civil §1983 action for damages, not criminal prosecution. And cops almost never paid the damages, which were invariably covered by the municipality.

And this was exactly what one would want, if the real concern was about having a claim settled or a damage award paid, since the municipality could afford to pay the judgment, whereas a million dollar judgment against a cop with $27,000 in his bank account wasn’t going to do the plaintiffs much good. You can’t get blood from a rock.

But that wasn’t the pitch to get the clueless to give a damn. Activists conflated the significance of civil and criminal actions so that reform supporters understood Scott’s compromise as letting cops murder with criminal impunity. Activists conflated the outcome, damages to compensate the aggrieved for the loss suffered rather than an action to find a cop guilty of wrongdoing. While the facts of a §1983 action would necessarily involve the cop’s actions, the cop played no role in the case. The municipality handled the defense as well as the purse, and the cop was little more than another witness to the case.

Cops didn’t like having their conduct reviewed by “Monday morning quarterbacks,” as no one does, but that was the worst of it. And yet, that would have happened under Scott’s compromise as the cop’s conduct remained the fact pattern of the suit, one way or another. That the cop’s name wouldn’t be in the caption was of extreme importance to the hopped-up reformers, but as meaningless otherwise. The cop wouldn’t be on the hook for a judgment? Sorry, kids, but he never really was, simpletons on twitter notwithstanding.

So no, it wasn’t going to change a thing about what cops do on the street. No cop is going to hesitate and violate the First Rule of Policing because he’s concerned that his employer will have to pay out a few mil. He’s not dying for the job. He wasn’t before. He wouldn’t if there was no such thing as QI. He wouldn’t if it was reformed. This was lunacy, but a lie that some of the most passionate proponents of reform propagated to catch the interest of the mob. And having hyped its benefit so brutally, neither they nor Senate Dems could back off their lie and admit it was all a steaming pile of bullshit all along.

We had it. We had effective elimination of qualified immunity in our hands and yet the absurd exaggeration delivered by people who should know better to their adoring twitter followers blew it in their trap of insipid snark, overhype and passionate lies.

As for why no one else on the Supreme Court held Sotomayor’s hand, a guy with a gun pointed at his head tends not to be the most rational thinker, and in a fraction of a second could point his gun elsewhere, whether at the cop or someone else.

It does not protect an officer who inflicts deadly force on a person who is only a threat to himself. That proposition is so “apparent” that any reasonable officer is surely “on notice” that such a use of force is unlawful.

Was it “so ‘apparent'” that no other justice, not Kagan, not Breyer, not Thomas, not anyone, agreed with Sotomayor? Was it so apparent that Booker couldn’t accept Scott’s compromise that would have effectively given reformers everything they wanted, if only they hadn’t lied to get to that point? We were so close and instead we’ve got nothing. At least those who blew it for us have lots of passionate followers on twitter, adoring their every snarky deceitful twit.

*QI has been discussed in many previous posts. If you need an explanation as to what it is and why it’s wrong, it’s all here.

5 thoughts on “Hype and Passion Cost Us Qualified Immunity Reform

  1. B. McLeod

    When a poorly reasoned rule persists for a long time, one reason is usually that some influential interests benefit from the rule. Another reason is that too many of the people trying to change the rule have their heads up their asses. One of these things probably will not change. As to the other, we can keep on hoping.

  2. Robert Parry

    Your interest is in compensating victims for misconduct. Theirs is in punishing cops.

    They’d be happy with a victim getting substantially less so long as the cops suffers.

    I’ll wager they can’t explain why QI was established to begin with.

    1. SHG Post author

      The primary drivers against QI know exactly what it does, but in the aftermath of George Floyd, and given the ease with which the unduly passionate will believe any nonsense that aligns with their ideology, they chose to deceive people into believing that QI protected individual officers from consequences for their misconduct. And they were amply rewarded for lying, both in popularity of the cause and adoration of the tribe.

      When Scott proposed a viable compromise, they got caught in their own web of lies, and the woke were outraged that it would let cops go without punishment, even though that was neither the purpose nor effect of QI. I don’t blame the woke for their ignorance. I blame the people who lied and manipulated them.


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