An internet lifetime ago, I wrote that the dreaded Qualified Immunity was “a problem, but not the problem.” It’s since caught fire on social media as the cure for what ails police brutality, with every blue check pundit putting it at the top of the list of fixes that will end police violence, save the next George Floyd or Breonna Taylor, and make us run faster and jump higher.

So what? QI is bad law, should be eliminated and what’s the harm of using this moment in time to eliminate it, whether by legislation as offered by Rep. Justin Amash or by the Supreme Court as it may revisit the doctrine. Of course, few who have jumped on the Anti-QI bandwagon grasp that the Supreme Court doesn’t serve as representative body, to be petitioned for change or influenced by ratio on twitter. Continue reading →

It’s about as black as black letter law can be: The defense of property is not worth the taking of a human life. Except, of course, the Castle Doctrine, particularly the Texas version which makes the Procaccino flavor taste like it needs salt. To the extent morality comes into play in the law, however, the defense of your television doesn’t justify your taking a life.

Or does it?

Peaceful protests are happening, but so is looting. which as the AP Style Book now states, isn’t looting but rather “protesters breaking into stores and stealing what’s on the shelf.” Don’t blame me. I didn’t say so. Some argue that looting is not merely understandable, but justified by some bastardization of Martin Luther King’s “voice of the unheard” quote or historical injustices that will be historical injustices forever. Is that so? If not, what can be done about it? What should be done about it? Continue reading →

Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

On Monday, June 1, 2020, Louisville Metro Police Chief Steve Conrad was fired by the mayor, Greg Fischer. While this sort of thing happens all the time, since most chiefs serve at the will of the mayor or the city manager, depending on the structure of city government, this was an unusual case.

First, the chief was fired because the last two officer-involved shootings, both of which resulted in the death of honest, hard-working, black citizens who were not violating the law, were not caught on body cam video.[1] Second, and no less important, was that Conrad was set to retire at the end of the month. Continue reading →

In a stunning unanimous decision, the Third Circuit Court of Appeals did three critical things in the first ruling following the issuance of the new Title IX regs. It rejected the single investigator model of sexual misconduct adjudication. It held that the promise of fairness by a private college, in this case Philadelphia’s University of Science, required due process in the form of a live hearing and cross-examination.

And most importantly, it rejected the argument that this was some sort of pseudo-educational act on the part of the school, and the courts should therefore defer to the school’s educational judgment. In so doing, the circuit panel said out loud that this was not comparable to a college adjudicating plagiarism, or some traditional educational function, but a school turning itself into a criminal tribunal imposing consequences that are “dire and permanent.” Continue reading →

Sheriff Christopher Swanson of Genesee County, Michigan, took off his riot helmet, put his baton on the ground, and walked with protesters.

Elsewhere, cops similarly recognized that they could be the problem or the solution. Continue reading →

After another night of peaceful protests and riots, violence and looting, two narratives emerge. One for the protests. Another for the riots and looting. To anyone who has paid attention over the past generation, the frustration reflected in the protests are neither surprising nor hard to understand, even though matters of race have consistently improved and opportunities present themselves now that weren’t available a decade ago.

That said, we remain far from a society offering equal opportunity and, more particularly directed toward the conduct of police toward blacks and Hispanics, the improvement has been slow and come at the expense of too many lives along the way.

Why the killing of George Floyd in particular was the impetus for protests is unclear. Maybe because it came on the heels of the killings of Ahmaud Arbery and Breonna Taylor? Maybe because people have been cooped up during lockdown and needed to get out? Continue reading →

Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

Colin Kaepernick started a trend back in 2016 of taking a knee during the playing of the National Anthem in protest of police treatment of blacks and the lack of accountability when there are incidents of police brutality or misconduct. Many people spoke out about Kaepernick’s protest, saying that it went to far, and he paid a price for taking a stand. Continue reading →

The events of yesterday, last night, ran the gamut of moving and peaceful to mindless and violent. There are arguments over who’s to blame, as people take credit for the good and point fingers for the bad. The police do as the police usually do, overbearing at best and outrageous when they get tired of being barely tolerant.

Then again, what’s a cop to do when his car is surrounded by protesters, unsure whether it’s about to be set ablaze?

The rationalizations have shifted over the past few days in ways they have in the past, and in ways that those of us who have followed and fought the twin problems of police violence and police racism for decades anticipated. Protests directed at concrete problems that give rise to consensus morphed into sophistry about historic grievances justifying violence and looting, because protests, they argued, haven’t “fixed” anything so it’s time to destroy (and snag a Louis Vuitton handbag in the process because why not?).

In Philadelphia, a Starbucks was burned. Continue reading →

Having spent years arguing about the wrongfulness of the judicially-invented activist defense to § 1983 and Bivens actions, the dreaded Qualified Immunity, it’s hard, awkward and, frankly, distasteful to write what I’m about to write: Eliminating Qualified Immunity is not the solution to police wrongfully, needlessly, killing people.

Qualified immunity precludes recovery in a civil action for damages against the police for the violation of someone’s civil rights. It has nothing to do, per se, with whether they will be fired from the job (and subsequently reinstated with back pay after union arbitration) for their conduct or criminal prosecution for the commission of a crime.

But, but, but the New York Times says so?

Police officers don’t face justice more often for a variety of reasons — from powerful police unions to the blue wall of silence to cowardly prosecutors to reluctant juries. But it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity from prosecution for actions taken while on the job. The badge has become a get-out-of-jail-free card in far too many instances.

And the Supreme Court has most assuredly failed miserably to help eradicate the problem by its creation of Qualified Immunity, its elimination of the sequence of ruling on whether conduct violates the Constitution, thereby making it “clearly established” before tossing the case so that the next time it happens, the case won’t be tossed, and generally approving of any distinction, no matter how tangential or irrelevant, to distinguish clearly established violations from the case at hand.

But all this relates not to punishing the cop who did the crime, but denying compensation to the victim of a crime. In other words, this comes well after the fact. It doesn’t prevent the commission of the unlawful conduct, but compensation for it.

But doesn’t that provide an incentive to the cop not to engage in unlawful conduct?

To some extent, sure, but the cop doesn’t usually pay for his own defense, as it’s covered by the municipality that employs him. The cop doesn’t pay the judgment either, as the municipality indemnifies him. There are a list of reason why this can’t, won’t, shouldn’t be changed to make the cop personally liable for his unlawful conduct, even though there is a similar list of reasons why he should, but this is all unicorn wishfulness and unworthy of serious discussions. Academics can be so self-indulgent, but it’s unserious.

The more serious approach is to contend that if a cop costs the municipality serious money, then it behooves the municipality to either oversee its cops better and/or rid itself of bad cops who engage in unlawful conduct and cost more than their worth. And this should, in a better world, incentivize municipalities to do a better job of eliminating bad cops from their police departments and making sure, whether by training or otherwise, that cops don’t violate the constitutional rights of its citizens. Of course, one might hope that municipalities didn’t need special incentives to do this, but reality bites.

The disconnect here is the perspectives of cops and cop unions, which are forcefully directed toward protecting jobs and pensions. As much as many cops take issue with the bad ones, and the bad ones are always some other cop but not them, every cop fears that he will make a life-altering mistake in the heat of the moment. If the municipality doesn’t protect them, cover them, they will use one of the many tools at hand to make everyone miserable. Cops, and particularly cop unions, can be very persuasive.

Plus, it bears noting that the cost of these suits, both legal and damages, doesn’t come out of the pockets of the municipalities officials any more than it comes from the cops. The cost is paid by the taxpayers, and for reasons that have always eluded me, they may not be thrilled at the wasted expense, but they rarely seem to be angry enough to do anything about it.

So what else might be done to compel police not to kill?

Direct consequences, whether firing and/or prosecution, which directly impacted the cop who committed the unlawful or illegal conduct. There are mechanisms that can be employed swiftly to a cop who does wrong, as opposed to a civil action years later that will only hurt to the extent the cop’s name is in the caption.

But then, termination is subject to the union contract, the statutory Law Enforcement Officers Bill of Rights in those states that have enacted LEOBR and general union, and hence rank and file, condemnation. And even in the worst case scenario, it’s hardly unusual for a cop to find employment in another department not too far from home.

As for criminal prosecution, not to mention obtaining a conviction, the results can be seen in the many high-profile cases where it failed to happen, each casing being parsed within an inch of its life and yet, as seen in the failed Eric Garner indictment or Tamir Rice, Philando Castillo, Walter Scott and, well, it’s a long list, neither prosecutors nor jurors have demonstrated much will to convict a cop.

Does that mean Qualified Immunity isn’t as bad as they say?

Hardly. It’s terrible law, even though there are some meritorious arguments in favor of it. But too many people confuse the relationship between Qualified Immunity and other means of addressing police misconduct, blending them all together as if QI precludes prosecution or discharge, and failing to appreciate the limitations that the elimination of QI would have on any individual cop’s “split second” decision to kill.

With or without Qualified Immunity, the First Rule of Policing would remain intact. With Qualified Immunity, the Reasonably Scared Cop Rule protects them from the consequences of their decision. There is no question that QI should be eliminated, but that doesn’t mean cops won’t kill any more than they do now.

George Floyd’s family retained Ben Crump as their lawyer, who issued the sort of statement one would expect.

The arrest of former Minneapolis police officer Derek Chauvin for the brutal killing of George Floyd is a welcome but overdue step on the road to justice,” the statement reads. “We expected a first-degree murder charge. We want a first-degree murder charge. And we want to see the other officers arrested. We call on authorities to revise the charges to reflect the true culpability of this officer.

For obvious reasons, murder in the first degree sounds so much more serious, so much more like real murder, that it’s the go-to cry to inflame passions. Crump’s been around the block a few times and knows how to play the crowd. To be fair, that’s his job, to represent the family of George Floyd, and even though he almost certainly knows there’s no basis for an intentional murder charge, he’s doing what best serves his clients’ interest. Continue reading →