We can’t be the kind of court system that just gives all of this a pass

In our culture of systemic racism, qualified immunity is one of the foremost tools of oppression

We can’t be the kind of court system that just gives all of this a pass

I may have been a couple years too early in naming this newsletter.

Last week I spoke with Emma Goodman an attorney in the Special Litigation Unit at the Legal Aid Society in New York about how protestors were being illegally detained for longer than necessary as a little extra form of punishment on top for protesting in the first place. Since then their appeal has managed to get hundreds released and things moving more speedily in the courts. It hasn’t all been good news though. I checked back in with her to see where things stand now.

“In the last week we've seen some major changes,” she told me. “They repealed 50-A [the law shielding police disciplinary records], arraignments are moving quickly, and a federal judge kicked ICE out of the courts.”

“But this has also been a week of devastation as more and more stories come out about the NYPD's handling of the protests,” she said.

“The stories of gleeful abuse and brutality are absolutely heartbreaking. They continue to beat, pepper spray and illegally detain peaceful protesters. We are working to stop them on several fronts, including lawsuits, more writs of habeas corpus, and changes to the law. The changes we've seen in the last week wouldn't have been possible without such a powerful, people-led movement, and there is real fear that the movement will lose steam and be co-opted by the mainstream. I hope that everyone is starting to understand just how rotten the police truly are and will look to the people behind this movement for guidance on how to effect true and lasting change.”

As regards their original habeas corpus case it’s still going ahead even though the issue of detaining people for over 24 hours pre-arraignment has abated.

“We are moving forward on the appeal because we want to challenge the precedent and make it impossible for future judges to make similarly outrageous decisions,” she said. “We are also challenging the illegal detention of peaceful protesters. The police have been illegally detaining people in large numbers and ‘disappearing them’ for hours or days at a time. These protesters, who are not part of the writ of habeas corpus because they are not charged with ‘arrestable offenses,’ are beaten and gassed and then rounded up and refused access to their attorneys and medical care, tortured with zip-ties to the point of their hands bleeding, subjected to extreme heat, and held in dangerous conditions. We continue to fight for the release of people that have already been detained and find ways to stop the police from doing this as the protests continue.”

You know there was actually a point like last year where I thought to myself hmm I think I might be writing too much about police abuse here this is starting to feel repetitive I better cover some other stuff.

Here’s one in particular on that topic you may have missed.

I wrote in here recently:

One thing I would like to see come out of all this besides all the other necessary things is for media to please stop considering the police a reliable source when reporting on activities they themselves are a party to. Journalists are petrified of writing that anything happened without an official government account giving them permission to because they think that provides them cover if it turns out to be a lie. But with cops it almost always is a lie. Police lie. Say that to yourself. Remember it.

Here’s a recent thread of police lying you may find illuminating on that subject.

Regarding the toppling of statues going on around the country and the world right now I would like to state for the record: lol.

The idea that this amounts to erasing history is so fucking funny to me as if we have some long tradition of chiseled-stone-based education in this country. Do people actually ever learn anything from a statue? Most kids on field trips or whatever are like look at this old marble bitch and when you’re visiting a new city you go walking around and there’s a statue and you go huh look at that statue and then you instantly delete it from your mind and start thinking about where to have lunch.

For that matter:

Check out this video of Native Americans dancing around a fallen statue of Columbus in Minnesota.

These statues are not about yesterday they’re about today and tomorrow. They’re about putting people of color in their place right now by reminding them how they were put in their place in the past.

“Most of the people who were involved in erecting the monuments were not necessarily erecting a monument to the past,” Jane Dailey an associate professor of history at the University of Chicago said a while back via NPR. “But were rather erecting them toward a white supremacist future.”

On top of that most of them aren’t even from the era they’re meant to commemorate.

“The most recent comprehensive study of Confederate statues and monuments across the country was published by the Southern Poverty Law Center last year. A look at this chart shows huge spikes in construction twice during the 20th century: in the early 1900s, and then again in the 1950s and 60s. Both were times of extreme civil rights tension.”

The point of most of these statues of racist old dead puds is to say to the people who see them fuck you and the only natural response to that is Fuck me? No, fuck you.

If you’d like to do some listening about the ridiculous ANTIFA SCARE going on around the country check out Jared Holt’s recent Sh!tpost podcast.

Buzzfeed too has a good piece on the matter:

As protests against police brutality and in support of Black Lives Matter continue to proliferate across the small towns and rural communities, so, too, have rumors of white vans of masked antifa driving from town to town, reportedly intent on destruction. In Hood River, Oregon, antifa were, according to screenshot of a fake Instagram story, calling on followers to “root loot do anything in your power.” In Spring Hill, Tennessee, there was a “busload” staying at the Holiday Inn, prepping to loot Walgreens at noon. In Wenatchee, Washington, bands of men dressed in black were surveilling potential targets. In Payette, Idaho, a plane full of protesters was circling overhead. In Honolulu, antifa had been flown in from the mainland. In Billings, Montana, some claimed agitators had been spotted by the National Guard. In Nebraska, they were creating Craigslist ads offering to pay people $25 a day to “cause as much chaos and destruction as possible.” In Sisters, Oregon, they were planning to show up at the local Bi-Mart.

To that point I was reminded recently of this by the Greek poet C.P. Cavafy.

As difficult as the past few weeks have been there are some signs that significant progress is being made. One almost feels hopeful! One area in particular that has started to get a lot of attention is the despicable practice of qualified immunity. Qualified immunity is the entirely made up out of nothing legal magic spell which makes it nearly impossible to hold police officers accountable for the harm they cause citizens unless there is an absurdly specific 1:1 established example of it in the books as unconstitutional already.

As I’ve written in here before qualified immunity essentially allows cops and other government agents like prison guards to do whatever the fuck they want to you if they are not violating a previously clearly established right and fuck you if you don’t like it.

I spoke a while ago with Matthew Segal of the MA ACLU regarding the case of an inmate in Texas who was forced to live in a cell covered in filth and feces whose attempt to sue the prison was denied. “Basically there is no clearly established case that says forcing a prisoner to sleep naked in a filthy cell is a violation of his rights,” is what the court found.

Prior to that I discussed with lawyer and law podcaster Charles Star the case of two business owners in California who say they were robbed by police during a raid and were subsequently not allowed to sue “because there was no clearly established legal precedent that explicitly states that the police stealing shit that they obtain during a lawful seizure is illegal and therefore there is no way that the cops in this case could have known not to do the stealing.”

Following the uprisings against state-sanctioned police violence around the country the issue of qualified immunity is currently getting the shit dragged out of it. Ayanna Pressley has recently introduced a bill in the House attempting to overturn the fucked up interpretation of this supremely stupid idea.

The bill states in part: ‘‘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.’’

In other words cops should know that it’s illegal to murder someone for nothing this is not splitting the atom stop fucking around.

A similar bill has been introduced in the Senate by Ed Markey and others.

“In our culture of systemic racism, qualified immunity is one of the foremost tools of oppression,” Markey said. “We cannot wait on the Court to fix its mistake. Police officers are murdering black and brown Americans in our streets without any accountability. We must act now and end qualified immunity once and for all.”

“The American people are sick and tired of police abuse without consequences,” Bernie Sanders added. “Congress must end ‘qualified immunity’ now so that police can be held accountable for wrongdoing, just like everybody else.

Likewise a group of 1,400 professional athletes coaches and team executives —including somewhat surprisingly Tom Brady and Drew Brees— have signed a petition in support of Pressley’s bill.

“We are tired of conversations around police accountability that go nowhere, and we have engaged in too many ‘listening sessions’ where we discuss whether there is a problem of police violence in this country,” it reads. “There is a problem. The world witnessed it when Officer Chauvin murdered George Floyd, and the world is watching it now, as officers deploy enormous force on peaceful protestors like those who were standing outside of the White House last week. The time for debate about the unchecked authority of the police is over; it is now time for change.”

It goes on:

The Supreme Court has caused irreparable harm to public trust by creating and then expanding the doctrine of qualified immunity, which often exempts police officers and others from liability, even for shocking abuse. Under that doctrine, first developed in 1967 and widened ever since, plaintiffs must show that government officials violated “clearly established” law to receive damages for harm. A plaintiff wins only if a prior Court found an official liable under a nearly identical fact-pattern. This standard is virtually impossible to meet, and the protections promised under section 1983 seem largely symbolic as a result.

Qualified immunity has shielded some of the worst law enforcement officials in America. The 8th Circuit applied it to an officer who wrapped a woman in a bear hug, slammed her to the ground, and broke her collarbone as she walked away from him. The 9th Circuit applied the doctrine to two officers who allegedly stole $225,000 while executing a search warrant. The Eleventh Circuit applied the doctrine to protect an officer who unintentionally shot a ten-year old while firing at the family dog (who, much like the child, posed no threat). The list of officers who suffered no consequences because of this doctrine could fill a law book.

There are currently a number of cases relevant to the issue of qualified immunity pending before the Supreme Court and we may find out next week which ones they might take up. Justice Sonia Sotomayor and weirdly Clarence Thomas have been vocally critical of it.

Some of those cases include (via CBS)

…Alexander Baxter, a Tennessee man…[who] was bitten in the armpit by a police dog after surrendering to Nashville police who responded to a report of a residential burglary. The dog was released by one of the officers, Spencer Harris, after Baxter sat on the ground and raised his hands in surrender, according to the ACLU's petition with the Supreme Court.

Another dispute before the Supreme Court involves a 10-year-old boy in Georgia who was shot by a police officer after pursuing a suspect into the boy's yard. The officer fired two shots at the family's dog, missing both times, but hitting the 10-year-old in the knee. In a third case, an Idaho woman gave police consent, and her keys, to enter her home to search for her ex-boyfriend, who was wanted on an outstanding warrant. But law enforcement instead fired tear-gas grenades into the house in an effort to draw the man, who wasn't there, out. Instead, it destroyed the house and displaced the woman, Shaniz West, and her children for two months.

In each of the cases, law enforcement involved in the incidents were sued for civil rights violations under the Fourth Amendment, but officers successfully asserted qualified immunity.

Not everyone is against eliminating it mind you.

One recent case that has heartened critics of qualified immunity came out of the 4th Circuit this week although more for the spirit of the ruling than for its precedent-setting implications. In the case a lower court’s ruling of immunity for five police officers in West Virginia who shot a man named Wayne Jones twenty two times while he was lying prone on the ground was reversed.

Among the more notable passages in the finding is this:

Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. The district court’s grant of summary judgment on qualified immunity grounds is reversed, and the dismissal of that claim is hereby vacated.

As many legal types have pointed out there’s something inspiring about this very rare instance of a court actually calling cops out on their bullshit as in this section:

Having zoomed in on the precise moments before Jones’s death, we pull back for context. The defendants portray Jones as a fleeing, armed suspect, who was not cooperating with law enforcement and had even reportedly “hit” an officer, displacing that officer’s hat. Non-cooperation with law enforcement has never given officers carte blanche to use deadly force against a suspect; luckily for many of us, neither has being “armed” with a small knife.

It may not be obvious but what they’re saying here is the cops were exaggerating about the facts of the encounter and the fact that in the process of arresting someone one of them had his hat knocked off is a pretty pissy little detail to include when arguing why it was ok for them to light a guy up while he was already on the ground.

It’s a bit depressing that this sort of thing is notable — Oh wow cops aren’t getting away redhanded with murder this one time!!! — isn’t exactly cause for throwing a party but then again...well…you know which newsletter you’re reading.

I called up Charles Star the Hell World in-house counsel to talk through this case. Please be sure to check out his podcast Hostile Witness “a podcast about the law at the end of the world.”

There were some developments in our ongoing discussion about qualified immunity this week?

There was a good case, somehow, out of the 4th Circuit. A small town in West Virginia, a man named Jones, a resident of the town, has a history of schizophrenia, he was homeless at the time. He was walking in the street instead of the sidewalk, which is technically illegal. Which matters because the cop has a reason to approach him. Which he does. He asks him if he has a weapon. Jones says What’s a weapon? He has a knife… So the cop starts harassing the guy, even though it’s unclear that having a knife is illegal in any way, or why the cop didn’t just say, alright, walk on the sidewalk buddy.

None of what happens next seems to make any kind of sense.

He probably just wanted to fuck with him.

Right. Whatever is in the police officer’s head, he initiates the contact, and turns it into something. Everything escalates. Jones gets agitated by the cop busting his balls. The cop calls for backup, and Jones takes off. The officer tasers him, and they say it had no effect. Then there was a scuffle, and the cop said he knocked his hat over his eyes. They chase him and corner him. One of the other officers said Jones’ hands were about to go up, so he hit him with his baton on the grounds his hands were about to go up. They weren’t even up. So then Jones gives up. They go to cuff him and they all end up falling down some steps. One of the officers chips his thumb, whatever that means. Now there are five cops on the scene, and all of them are on top of this guy. Whatever they’re claiming he’s doing, there are five cops on top of him. One of them claims he’s been stabbed twice. All the officers jump off. Jones is on the ground by himself, his right arm with the knife is under his body pinned. His left arm flops to the ground, he’s just lying there. The cops yell at him to drop the knife, which he doesn’t because he’s totally non-responsive. So all the cops fire over twenty shots at the guy lying prone on the ground and he dies on the scene. It’s gross.

A gross overreaction.

It shouldn’t matter but it has this tortuous litigation history….  Once it gets to the 4th Circuit they say well there are a lot of facts here that say even if he did stab him they still all shot a guy lying on the ground twenty times. That doesn’t necessarily sound reasonable….You don’t get qualified immunity here because you can’t shoot a suspect you’ve already secured. One, once you get a guy on the ground you can’t keep tasing him — there are cases on that — and two you can’t shoot an incapacitated person. He didn’t make an aggressive move toward anyone and they all fired. There’s a couple of times in here the panel goes after cop speak. One is like you’d have to be a clairvoyant to know someone was about to raise their arms. The panel says you’re basically just admitting he didn’t raise his arm.

This is pretty critical of police in a number of places.

Yeah. They have one section where they go through the legal analysis. They say he was on the ground, and once he was secured here are the cases that say you can’t do shoot him then. Then they say now let’s pull back a little and look at how none of this, in any way, had to happen. Why was this a confrontation in the first place, you know?  They very sort of casually drop in that displaced the officers hat part. You put twenty bullets into this guy and your narrative still includes the fact that he knocked your hat over your eyes?!

That’s some old-timey Three Stooges shit. Pulling a man’s hat over his eyes is a huge insult.

How can that possibly be part of your narrative? Another thing is, they jump off the guy when they realize he has a knife, and they all start shooting within seconds. There was no time to comply…. The court says it’s the cops that escalated the encounter. He couldn’t just answer Jones’ question of does a knife count? You’re allowed to have a knife. Do you mean do I have a weapon or do I have an illegal weapon?

The ruling talked about that?

It does examine the fact that his confusion was reasonable. And that the officer escalated the situation. What basically happened is he says he’s got a weapon, and the officer’s like alright turn around and put your hands on the vehicle. Jones is like Why? What did I do? The officer has initiated an arrest, and he won’t just tell Jones what he’s arresting him for. So Jones gets angrier and angrier, and that becomes a confrontation because the officer can’t just talk to a person like a person. You see that in a lot of body cam footage. People are always like, Why don’t you just comply? It’s like, would you like someone to stuff you in the trunk of their car just because they can? Tell me why you’re arresting me is not an unreasonable complaint. Especially when there’s no imminent danger.

You do see that in a lot of these films now. The guy’s like just tell me what I did. And even the fact of asking is considered a further provocation by police.

Right. Asking the question is itself resisting. You’ve been given what they consider a lawful order, and instead of putting your hands behind your back you had the temerity to ask why they’re doing it. Especially when you know it’s a bullshit charge. You’re being arrested because you told the cop to fuck off because you weren’t doing anything wrong in the first place.

We talked about that last time. It being legal to tell a cop to fuck off. Does this Jones case have any implications for qualified immunity?

It doesn’t change the law at all, but the tone of it is: Be more skeptical. It points to the officer’s story and essentially accuses them of exaggerating everything totally. It describes the situation in a way that is actually genuinely empathetic to the victim, which never happens. It looks at the cops’ needless escalation as part of the backdrop to what happened. But it decides it very strictly on established law.

On the law it was pretty straightforward, but the tone. It mentions he was killed a year before Mike Brown in Ferguson. It mentions the backdrop of the current protests. It raises all of these issues once again about how police should respond, and how we as society are going to treat them. It basically says we can’t be the kind of court system that just gives all of this a pass.

Is it heartening, or is just not-shitty?

It has that almost Upworthy kind of thing. It’s so unremarkable but we think of it as a huge victory.

Heartwarming! These five cops didn’t [entirely] get away with murder.

Exactly. And for Hell World purposes, keep in mind it’s really hard to find an appellate panel like this. [All Democrat-appointed judges]. That almost never happens. Trump has stuffed the bench with reactionaries. There are judges going back to Reagan still on the bench. I don’t think this is the type of case that will go to the Supreme Court. I also don’t think it’s likely to be replicated. What this case shows is how much depends on the empathy of the person writing it, and how you describe the facts. It’s a lot easier to describe the facts to say he stabbed an officer and wouldn’t drop the knife. You say that in two sentences and it’s a clean shoot. It’s over.

So it’s notable that they’re actually allowing some nuances into what is usually a pretty one-sided cut and dry approach to police accounts of arrests.

Which you’re supposed to do! … On the law it should be an easy case, but it takes a judge to read the facts, and to look at them closely enough to get by the cop-speak.

So what happens now? Jones’ estate can sue the police?

Yeah it goes back to the same judge that dismissed it three times.  There are other ways it might be dismissed on summary judgment or by a jury. But at the very least it won’t get dismissed on qualified immunity.