New York Police Union Tells NYPD End Of Qualified Immunity Will Force Officers To... Act Lawfully

from the kind-of-an-anti-climax dept

One of the NYPD's unions -- the Sergeants Benevolent Association (SBA) -- is feeling ways about stuff again. Last month, the New York City Council passed a number of police reforms which included taking away qualified immunity as a defense in civil lawsuits filed in local courts. The bill has yet to receive the governor's signature, but the SBA is already making its unhappiness known.

The SBA issued a statement (via its lawyers) about the supposed downsides of giving the public a fighting chance in civil rights lawsuits. And in doing so, it has inadvertently generated a few arguments against qualified immunity, as Jay Schweikart points out at Unlawful Shield.

What was written as a cautionary advisory about the changing legal atmosphere is instead an unforced error that shows how often cops are protected by this immunity even when it's clear they've violated rights. First, the SBA restates the doctrine's intent:

Qualified immunity means that government employees are immune from lawsuits if they acted reasonably and not in violation of a “clearly established statutory or constitutional right.” It is designed to protect all government employees and officials from lawsuits and liability when they perform their duties in good faith and within what one reasonably believes to be the scope of existing law.

But then it skips right past all the case law that shows the doctrine protects plenty of bad faith actions and unreasonable officers. As Schweikart notes, truly reasonable officers know where the Constitutional lines are drawn and have no need to worry about not being protected if sued.

Officers who are genuinely acting in good faith aren’t violating anyone’s rights in the first place, so by definition, they don’t need qualified immunity to protect them. By suggesting otherwise to their members, these unions are engaged in reckless, dishonest fearmongering.

And that's where the SBA letter veers into an unintended endorsement of ending qualified immunity. Cloaked in language that suggests law enforcement officers should do less law enforcement until the legal pendulum swings firmly back in their favor, the SBA explicitly tells officers how to avoid being sued. And it's a really simple fix that doesn't need to rely on deliberate work slowdowns or underenforcement.

As a direct result of the passage of this law, and the unavailability of the defense of qualified immunity under its provisions, we advise that you proceed with caution when taking any police action which could lead to physical engagement with any person, and avoid physical engagement to the greatest extent possible while also assuring your own safety and the safety of others. Also, you are strongly cautioned against engaging in any stop & frisk (unless doing so for your own or others’ safety), search of a car, residence, or person unless you are certain that you are clearly and unequivocally within the bounds of the law . . .

How hard is that to figure out? The Constitution has been around for a long time. While there are still some areas unexplored due to tech developments, it's been mostly clear for years how to police the public without violating citizens' rights. That officers still choose to operate outside the bounds so frequently makes it clear qualified immunity has shifted more power to the already-powerful, rather than shield the small minority of government employees who make mistakes while operating in legally-unclear areas.

Operating "clearly and unequivocally within the bounds of law" is not a difficult thing to do. Normal citizens do this all the time, despite being subject to far more unclear laws and ordinances than officers of the actual law. If an action seems brutal, vindictive, or not entirely justified, it's probably a violation of someone's rights. There's plenty of leeway given to officers to engage in their duties. Courts allow cops to lie to suspects during interrogations, take people's property with almost zero justification, draw them into reverse sting operations involving make believe contraband, and make up the law as they go along to engage in pretextual traffic stops.

And the courts have also taken a very expansive view of the term "reasonable," allowing all sorts of unreasonable violations to be waved away by innovations of qualified immunity. This is the only thing being removed by the proposed law. And it only affects cases brought in the city's courts. It's hardly the end of qualified immunity and it isn't the death knell to good policing the SBA pretends it is. If officers start exiting the force -- or refusing to do their jobs -- because QI is no longer available, it will merely indicate these officers are unable (or unwilling) to perform their duties lawfully.

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Filed Under: civil rights, nypd, police union, qualified immunity
Companies: sergeants benevolent association


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  • identicon
    Baron von Robber, 12 May 2021 @ 2:00pm

    I'm hoping the of end of qualified immunity will force bad cops to quit being cops.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 12 May 2021 @ 2:55pm

      Re:

      Any cop who can't or won't do the job because they might face consequences for their actions has no business being a cop in the first place, and the public will be better off for each and every one that might quit as a result of the removal of QI.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 14 May 2021 @ 3:32pm

      Forcing bad cops to quit

      It may force some bad cops to quit, or for certain counties to start budgeting more for victims, but most counties still have a long history of DAs and judges siding with law enforcement officers.

      More suits will get to civil court. We'll have to see if that leads to an abundance of awards to victims of the police, or if judges are still inclined to dismiss the suits on bad justification.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2021 @ 2:09pm

    So, guys. You know how we've got the whole 'ignorance of the law is no excuse' thing going on? It kind of applies to us now too.

    reply to this | link to this | view in chronology ]

    • icon
      z! (profile), 13 May 2021 @ 11:26am

      Re:

      Unfortunately, IIRC a SCOTUS decision a couple of years ago ("broken tail light") said they don't (currently) need to know the laws they say they're enforcing. That also needs to change.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 13 May 2021 @ 1:55pm

        Re: Re:

        Doctors are required to show that they know medicine and the body before they're allowed to practice, architects and those that design and build houses are likewise required to demonstrate that they know the relevant knowledge, the idea that those tasked with upholding and enforcing the laws don't actually have to know them(and in fact benefit greatly from not knowing the law) is not only a terrible idea but utterly absurd.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2021 @ 2:35pm

    So don't do anything unless we are sure it's legal, follow the law.
    Sound advise i would say.
    What was the advice before?
    "Now get out there and kick some ass and violate those rights, remember they can't touch you!"?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2021 @ 5:06pm

      Re:

      Apparently a lot of modern cops grew up watching 80s cop movies where the hero was always breaking the law and department policies to do whatever was necessary to get the bad guy. They all think they're the hero cop instead of the crooked cop violating rights.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 14 May 2021 @ 3:41pm

        80s loose cannons who get the job done

        There's still a notion in the US of a criminal element that we have crime due note to precarity and desperation but because some people were _born on the wrong side of the tracks (a segregation reference) and there's nothing for it but for Batman to punch them in the face.

        To the contrary, we know how much crime happens†, how a lack of social safety nets leads to crime. But US culture just doesn't care.

        † Actually I was looking up DJS homicide statistics for 2019, and found that in fact we don't know how about half of our homicides occurred, what I'm going to guess is poor reporting by law enforcement. Of the ones we do know, typically neighbors have a severe disagreement which gets exasperated by booze and a handy weapon (usually, but not always, a handgun.)

        reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 12 May 2021 @ 2:53pm

    'What madness is this, we might have to follow the law?!'

    'if you're not sure what you're about to do is legal don't do it' is a seriously damning warning to be handing out to cops there, and one hell of an indictment of the NYPD that a police union felt it needed to be said.

    If that is the sort of response they're going to have to the possibility that QI might go away they are providing some great justifications for getting rid of it, because 'Don't do it if you aren't sure it's legal' is not something that should need to be said, especially when you're talking about people theoretically tasked with upholding the law.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2021 @ 2:24am

      Re: 'What madness is this, we might have to follow the law?!'

      this is the nypd were talking about. they are so stupid that a law had to be passed just to tell them that stealing from people is illegal.

      reply to this | link to this | view in chronology ]

  • identicon
    Peter, 12 May 2021 @ 3:00pm

    Sound advice

    Translation:

    "So that illegal stuff we have been getting away with? We can't do that any more"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2021 @ 12:42am

    A law that can get a police union to recommend officers act with caution, avoid unnecessary physical force and not to perform illegal searches? What kind of wizard is behind this miracle of common sense and can they repeat it for all the other bastions of stupidity in our world, too?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2021 @ 2:31am

    End Of Qualified Immunity Will Force Officers To... Act Lawfully

    WHAT! you mean they have to follow the law just like the rest of us.....
    now if we could just get rid of the blue lies mafia UNION, the only thing there good for is protecting CRIMINALS.....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2021 @ 6:05am

    wow! that's gonna be a first, then, by the sound of it!!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    David Zumstein, 13 May 2021 @ 8:10am

    State farm supports fraud and endangered my life

    I have proof state farm supports insurance fraud.

    I've caught them in so many violations of Arizona Revised Statues.

    I put this company in thier place they have hired a legal team now.
    I'm taking them head on all by myself, I have case law supporting my claim and laws they violated.
    Horrendous company I will be filing criminal charges.
    State farm supports fraud and is fraud.

    reply to this | link to this | view in chronology ]

    • identicon
      Sharur, 13 May 2021 @ 12:03pm

      Re: State farm supports fraud and endangered my life

      You can file criminal charges as a private person in Arizona?

      Also, what are the Arizona Revised Statues? (a Penal Code equivalent?)

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    restless94110 (profile), 13 May 2021 @ 8:26am

    Most Likely

    It's far more likely that the removal of qualified immunity defense will not cause police to "act legally" but instead simply cause few if any to want to be cops.

    With that protection removed, anyone can sue any cop for any reason....and they surely will. Every cop will become mired in multiple law suits, some of which may succeed, most of which probably will not.

    It won't matter though. Policing as an occupation will be dead. Who on earth would want to work a job where they can be sued all day and all night for anything at any time?

    You seem to believe that qualified immunity, the concept, is solely in place so the cops can do illegal things. That's not what it's there for. You'll find out. Soon enough. Keep on with this madness. Reap the whirlwind.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2021 @ 8:44am

      Re: Most Likely

      Every cop will become mired in multiple law suits, some of which may succeed, most of which probably will not.

      And just who will fund all those law suites, especially considering that cops do not usually target those who can afford to go to law.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 13 May 2021 @ 12:32pm

      Re: Most Likely

      Luckily for the rest of us, these hallucinations of yours have never reflected any part of reality.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2021 @ 12:39pm

      Re: Most Likely

      That's not what it's there for.

      But that's what it's used for.

      You'll find out. Soon enough. Keep on with this madness. Reap the whirlwind.

      That's the plan. Put these assholes out of work and let them find another fucking job with all the benefits. Frankly, I don't give anything close to a shit if cops threaten to quit. Let them see how they like flipping burgers. Let them find another job that pays what being a cop pays.

      I. Fucking. Dare. Them.

      Let's see how they and their families live without that nice salary, insurance, pension, and everything else that goes along with it. If that's how these assholes need to learn, then by all means - quit!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 May 2021 @ 2:22am

      Re: Most Likely

      will not cause police to "act legally"

      At this point, I think there's very little hope that problematic cops - the openly racist, abusive, and willing to resort to their guns as their first response and escalate every situation - will "act legally".

      but instead simply cause few if any to want to be cops

      Why would the increased likelihood of bad actors getting punished be a deterrent for new joiners? Like... this is something cop apologists have never been able to explain.

      Every cop will become mired in multiple law suits, some of which may succeed, most of which probably will not.

      So just like everyone else who runs this risk every time they get involved in a career that carries risks?

      Who on earth would want to work a job where they can be sued all day and all night for anything at any time?

      CEOs. Doctors. They can be sued for anything and everything and yet you don't have people running away from these roles. This isn't hard, fam.

      That's not what it's there for.

      Qualified immunity is, in fact, not there to allow cops to do illegal things. So if a cop does something illegal, qualified immunity shouldn't apply. But you mad lads seem so keen on abusing that privilege, it's very hard to eke out any sympathy when it gets taken away from you.

      You'll find out. Soon enough. Keep on with this madness. Reap the whirlwind.

      Is this the part where you drop the Navy SEALs copypasta bro? Or more dog whistles about January 6th?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 14 May 2021 @ 10:42pm

        Re: Re: Most Likely

        Why would the increased likelihood of bad actors getting punished be a deterrent for new joiners? Like... this is something cop apologists have never been able to explain.

        That some people would posit that being held accountable for your actions would drive cops off and keep people from wanting to be cops has got to be one of the more self-damning arguments around due to how horrible it portrays your average cop/would-be cop as, and at that point they might as well just admit that a big perk of being a cop is the ability to violate the law with impunity and they can't imagine why anyone would want to be one without that perk.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 14 May 2021 @ 11:37pm

          Re: Re: Re: Most Likely

          There's also the fact that a failure to explain the aforementioned query really, really scuppers the favorite authoritarian mantra of "If you've done nothing wrong, you've got nothing to hide." If a cop has done nothing wrong, why would they be afraid of getting sued for anything and everything? Why would they need to be concerned that someone else violating the rules would negatively affect them?

          reply to this | link to this | view in chronology ]

  • icon
    Lostinlodos (profile), 16 May 2021 @ 1:05pm

    I only have one concern with removing “qualified” immunity. Lawsuits are expensive.
    Police officers would be on the hook for every and any ‘I hate cops’ lawsuit. Right now the legal system has no real protections for false claims, fee wise.

    If all fees were forced to be paid by the loosing party (in all cases, not just police) I’d be completely in agreement that the law is unnecessary and unneeded. It’s exactly why copyright trolling is so lucrative. Most people can’t afford to fight when they’re innocent.

    Side note: I’m aware golden spire firms are an issue. I’m ignoring that for the sake of conciseness.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 May 2021 @ 11:57pm

      Re:

      See, this argument doesn't hold water if you think about it for a moment. Copyright trolling is lucrative because it's a rightsholder or organization going after a single individual.

      In the case of the police officer being on the hook of a supposed "I hate cops" lawsuit, who'd be bringing the suit? Is it going to be a heavily funded content creator? Or is it going to be some rando bringing a nuisance suit, and is likely to be representing themselves and/or get laughed out of court? And that's not forgetting that the police are very protective of their own, regardless of how bad things look for them, plus they have the resources to find the best lawyers to defend the shining boys in blue.

      This idea that opening up the police to lawsuits after they gun down people is going to completely destroy law enforcement as a career... just doesn't make any lick of sense. The police are far too well-protected for this slippery slope scenario to even exist.

      reply to this | link to this | view in chronology ]


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