How do those cops get away with that? Well, most likely if a cop gets away with an illegal act, you need to blame a judge, not a cop. The black-robed mafia does at least as much damage to our rights as rogue cops do. Judges aren’t born, they are promoted from ‘lawyer.’ Ever notice that if you slur the word lawyer a little it comes out ‘liar?’ I don’t think that’s an accident. Corrupt cronyism. It is always important to remember that we have a ‘legal system’ and NOT a ‘justice system.’ There is a big difference and it can hurt you. It can also allow bad cops to continue to hurt the public that they are supposed to be protecting. I thought a little info on the ‘Qualified Immunity Doctrine’ is in order. Understanding it will help make sense of some of the stuff you see that just doesn’t seem right. Here is a statement of legality of actions:
Every person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .
42 United States Code section 1983.
This is as it should be. Gubmint officials should be held responsible for their actions. What the qualified immunity doctrine does is to legally shield officials (LEO’s etc.) from prosecution when their intent was not to violate a citizen’s rights. While this doctrine can be misused by the courts, it does reduce frivolous lawsuits (mostly coming from criminals).
“[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
To determine if an officer is entitled to qualified immunity, courts ask two questions: (1) viewing the facts in the light most favorable to the injured party, did the officer violate that person’s constitutional or statutory rights; and, if so, (2) was that right clearly established at the time of the incident, such that a reasonable officer would understand his conduct was unlawful in the situation he confronted.
Henderson v. Munn, 439 F.3d 497 (8th Cir. 2006).
If properly applied, this should weed out the bad cops that think they have more rights than citizens.
In excessive force claims, courts evaluate whether an officer’s conduct was objectively reasonable under the totality of the circumstances. Factors considered include: 1) the severity of the crime for which a person is seized; 2) whether the person seized posed a threat to the safety of officers or others; and 3) whether the person was resisting arrest.
Graham v. Connor, 490 U.S. 386 (1989).
I think this is where the most abuse by the courts comes from: The questions should guide officers to make intelligent and compassionate decisions regarding the citizens they encounter. Unfortunately, this is not always the case. Like punishment for criminals, punishment of LE abuses should be quick and harsh. And unfortunately, this is also not always the case. If a cop gets away with abusing an in-custody subject, they get used to abusing rights. Example: I’ve taken the subject into custody and they are now handcuffed. No hitting, kicking, baton strikes, pepper spray, or TASERs. Use of such force IS a crime. Doesn’t matter if the subject resisted arrest; kicked you, hit you, bit you, spit on you, made you run and get sweatey, fought you, tore your uniform, yada, yada yada. It doesn’t matter. When a subject is handcuffed, they are now UNDER YOUR PROTECTION!
The Constitution imposes an affirmative duty on police to protect or care for private citizens in two circumstances: “first, in custodial and other settings in which the state has limited the individuals’ ability to care for themselves; and second, when the state affirmatively places a particular individual in a position of danger the individual would not otherwise have faced.” The second situation is known as state-created danger.
Gregory v. Rogers, 974 F.2d 1006 (8th Cir. 1992).
To establish police liability “[u]nder the state-created danger theory, the plaintiffs must prove (1) they were members of a limited, precisely definable group; (2) [police] conduct put the plaintiffs at significant risk of serious, immediate, and proximate harm; (3) the risk was obvious or known to [the police]; (4) [the police] acted recklessly in conscious disregard of the risk; and (5) in total, [police] conduct shocks the conscience. Mere negligence is not conscience-shocking and cannot support a claim alleging a violation of a plaintiff’s substantive due process rights.”
Avalos v. City of Glenwood, 382 F.3d 792 (8th Cir. 2004).
Alright, folks, that should give you a little to chew on. Hopefully, it will help you do get a clearer view of instances of disputes between citizens and LE. I think you will find that sometimes the cops are right, and sometimes they are wrong. A good cop works hard to protect the rights of individuals they interact with without compromising the safety of the public or themselves.
And I’m sure if my little troll buddies (Krampus) read this, they will never understand it and make snarky comments, which from now on I will not approve or reply to. My blog! Not yours!