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Did the Israelites Really Cross the Red Sea? Stunning Evidence of the Location of Red Sea Crossing! Are we experiencing a Triumph of Orthodoxy? Judge Napolitano with Konstantin Malofeev (Moscow, Russia) "Trump Administration Cancels Most USAID Programs, Folds Others into State Department" Introducing Manus: The General AI Agent "Chinese Spies in Our Military? Straight to Jail" Any suggestion that the USA and NATO are "Helping" or have ever helped Ukraine needs to be shot down instantly "Real problem with the Palestinians: Nobody wants them" ACDC & The Rolling Stones - Rock Me Baby Status: Not Logged In; Sign In United States News See other United States News Articles Title: Judge Says Cops Need Qualified Immunity To 'Stop Mass Shootings' Source: Reason URL Source: https://reason.com/2019/10/25/judge ... munity-to-stop-mass-shootings/ Published: Oct 25, 2019 Author: Billy Binion Post Date: 2019-10-25 16:37:06 by Deckard Keywords: None Views: 502 Comments: 1 In fact, the legal doctrine lets cops to get away with outrageous conduct. (Ivan Kokoulin | Dreamstime.com) Judge James C. Ho of the Fifth Circuit Court of Appeals offered a novel theory this week: "If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them." Fortunately, a majority of judges hearing the case didn't agree. The story begins in 2013, when sheriff's deputies in Kaufman County, Texas, responded to reports of a man terrorizing a neighborhood by kicking mailboxes, pointing a gun at resident's houses, and yelling, "I'm just trying to get back what's mine." One complainant stated that there was a man "walking up and down the street, screaming and firing a gun." Upon arriving at the scene, Officers Gabriel Hinojosa and Matthew Hinds, a defendant in the suit, stated that they encountered a black male wearing a brown shirt; he allegedly fired one round at the officers before ducking out of sight on two occasions. Then Gabriel Winzer, wearing a blue shirt, allegedly "emerged from behind a house and biked toward the officers," Ho writes, prompting them to open fire. Winzer retreated. He was found several minutes later in his father's backyard with four gunshot wounds to his chest, shoulder, and upper back. His dad was with him, "trying to comfort and revive him." As Winzer lay dying, officers attempted to handcuff him, but he resisted, so they tased him. Only then were paramedics allowed to enter the scene, where he was pronounced dead shortly thereafter. Winzer was 25 years old. He was mentally handicapped. And he probably wasn't the man terrorizing the neighborhood. Ho's dissent defends the officers fiercely, disregarding all evidence that contradicts the idea that Winzer was guilty. So he mentions that Winzer's father had several firearms in his home, but he omits the fact that Kaufman County's own sheriff confirmed that a gun was never found on Winzer. He also ignores the fact that the officers themselves say the man who fired at them was dressed differently. And he skips over an implausible part of their testimony—the part where Winzer "brought his hand gun to a firing position" while riding a bicycle. "It is unknown how many lives were saved by these deputies on April 27, 2013," writes Ho. "What is known, however, is that Kaufman County will now stand trial for their potentially life-saving actions—and that its taxpayers, including those who will forever be traumatized by Winzer's acts of terror, will pick up the tab for any judgment." The particulars of the case aside, Ho's support for the officers rests on the unfortunate legal doctrine of qualified immunity. This holds that public servants can violate someone's constitutional rights without fear of civil suits if those rights have not been "clearly established" by previous case law. In the case before the court, the county argued that the officers did not breach Winzer's Fourth Amendment rights because they had "probable cause" to think Winzer "posed a threat of serious bodily harm." Ho asserts that qualified immunity is an imperative to protecting the public; without it, he implies, violence will proliferate, because officers will be too afraid to use lethal force. In reality, the contrary is true. Time and time again, civil servants—namely police officers—have used qualified immunity to avoid accountability for their outrageous, and oftentimes violent, actions. Consider Corbitt v. Vickers, in which the 11th Circuit gave qualified immunity to a police officer who shot a 10-year-old boy in the knee as the cop was trying to shoot the family's nonthreatening dog. Although the officer faced no apparent threat, the court ruled that he did not infringe on anyone's constitutional rights because he meant to shoot the dog, not the child. The family was denied compensation for their medical bills. Or take Jessop v. City of Fresno, in which the 9th Circuit granted qualified immunity to two officers who allegedly stole $226,380 while conducting a search warrant. The court acknowledged that "the City Officers ought to have recognized that the alleged theft was morally wrong," but it ruled that they "did not have clear notice" that stealing the property violated the Constitution. The list of abuses goes on, but it does not seem to have moved Ho. Fortunately, the majority disagreed, and rejected the county's request for qualified immunity. (2 images) Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest #1. To: Deckard (#0) Title: Judge Says Cops Need Qualified Immunity To 'Stop Mass Shootings' Source: Reason URL Source: https://reason.com/2019/10/25/judge-says-cops-need-qualified-immunity-to-stop-mass-shootings/ Published: Oct 25, 2019 Author: Billy Binion Post Date: 2019-10-25 16:37:06 by Deckard Keywords: None Views: 16 In fact, the legal doctrine lets cops to get away with outrageous conduct. Matt, you have posed another article from a social justice warrior source that repeatedly and deliberately publishes false and legally ridiculous commmentary on the law with intent to mislead the public, and to enable social justice warriors, such as yourself, to spread the falsehood. Your source cannot repeatedly get it this ass backwards without intent to do so. Qualified immunity does not apply to outrageous behavior, criminal behavior, or acts not within the performance of the actor's employment. For example, qualified immunity did not apply to the acts of Amber Guyger. Morales, below, is a case directly on point about qualified immunity and the associated instructions to the jury as given by the judge. https://www.scribd.com/document/432240676/Morales-v-Fry-et-al-14-35944-9th-Cir-16-Oct-2017-Qualified-Immunity This is an appellate court opinion reviewing the legality of the actions taken by the trial court. The court decided that whether the officers had a clearly established right to qualified immunity, as a matter of law, could only be decided by the judge, and could not be left to the jury. Qualified immunity, even when applicable, only shields an officer from civil liability. Where the officer is shielded by qualified immunity, the employer, unless it is a sovereign state, suffers civil liability. Qualified immunity has nothing whatsoever to do with criminal liability. At 7: Morales objected to Jury Instruction Nos. 20 and 21, arguing that they impermissibly submitted the legal question of qualified immunity to the jury. Footnotes at 9-10: 2 Morales preserved this issue for appeal. Her counsel objected that the issue of qualified immunity necessarily involves a question of law and so no jury instruction could be proper on that point. Having objected to having the jury decide the legal issue in the first place, Morales did not need to propose an instruction. The heart of her objection was abundantly clear from the colloquy with the court. 3 In its entirety, Jury Instruction No. 20 stated: This instruction relates to Plaintiff’s federal law claim for unlawful arrest against Defendant Sonya Fry. Defendant Fry contends that her arrest of Plaintiff was justified by her reasonable belief that this action was permitted or required and, therefore, lawful. If Defendant Fry reasonably believed that probable cause existed to arrest Plaintiff, and acted on the basis of that belief, then her reasonable belief would constitute a complete defense to the Plaintiff’s claim even if, in fact, the arrest was not lawful. Put another way, even if you find that Defendant Fry violated Plaintiff’s constitutional rights by unlawfully arresting her, Defendant Fry cannot be liable if she reasonably believed at the time she acted that her actions were in accordance with the law. But keep in mind that this reasonableness inquiry is an objective one. The question is whether every reasonable officer under those same circumstances would believe that there was no reasonable basis for the arrest. 4 Jury Instruction No. 21 stated in almost identical terms: This instruction relates to Plaintiff’s federal law claim for excessive force against Defendants Sonya Fry and Brian Rees. Defendants Fry and Rees contend that their use of force on Plaintiff was justified by their reasonable beliefs that their actions were permitted or required and, therefore, lawful. If the officers reasonably believed that the force used was lawful, and acted on the basis of that belief, then their reasonable beliefs would constitute a complete defense to the Plaintiff’s claim even if, in fact, the force was not lawful. Put another way, even if you find that Defendants Fry or Rees violated Plaintiff’s constitutional rights by using excessive force, Defendants cannot be liable if they reasonably believed at the time they acted that their actions were in accordance with the law. But keep in mind that this reasonableness inquiry is an objective one. The question is whether every reasonable officer under those same circumstances would believe that the use of force was unlawful. At 8-16: Analysis Challenge to Jury Instructions on Qualified Immunity A. Role of Judge or Jury as Decider Qualified immunity shields government officials from civil liability unless a plaintiff establishes that: (1) the official violated a constitutional right; and (2) that right was “clearly established” at the time of the challenged conduct, such that “every reasonable official” would have understood that what he is doing violates that right. Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 (2011) (citation and internal quotation mark omitted). The chief issue in this appeal is whether the second prong of the qualified immunity analysis, whether the constitutional right was “clearly established,” should have been submitted to the jury.2 We hold that the “clearly established” inquiry is a question of law that only a judge can decide. Morales's appeal of the jury's verdict in favor of Fry centers on Jury Instruction Nos. 203 and 214. The parties and the district court agree that those instructions capture the “clearly established” question. That understanding is reflected in their text. Both instructions stated that “even if you find that [the Defendants] violated Plaintiff's constitutional rights . . . [the Defendants] cannot be liable if [they] reasonably believed at the time [they] acted that [their] actions were in accordance with the law. But keep in mind that this reasonableness inquiry is an objective one. The question is whether every reasonable officer under those same circumstances would believe that” the action was unlawful. Rather than focusing on whether Morales's constitutional rights were violated, these instructions look to whether the officers would have known their conduct violated Morales's rights, an inquiry that requires the court to determine whether the law was “clearly established.” See Ashcroft, 563 U.S. at 741; Pearson v. Callahan, 555 U.S. 223, 244 (2009). It was error for the district court to submit this inquiry to the jury. To understand why, it is useful to start with the foundations of the doctrine of qualified immunity. The doctrine protects public officials “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.” Pearson, 555 U.S. at 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Accordingly, the two prongs of qualified immunity balance two important, competing interests: the need to hold public officials accountable for irresponsible actions, and the need to shield them from liability when they make reasonable mistakes. Id. By design, the issue of qualified immunity is usually resolved “long before trial.” See Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam). The Supreme Court has repeatedly stressed the importance of deciding qualified immunity “at the earliest possible stage in litigation” in order to preserve the doctrine's status as a true “immunity from suit rather than a mere defense to liability.” See id. at 227 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Early determination is often possible “because qualified immunity most often turns on legal determinations, not disputed facts.” Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994). In addition, courts are now empowered to address the two prongs in whichever order would expedite resolution of the case. See Pearson, 555 U.S. at 236-39 (noting that it is frequently “quick[er] and easi[e]r” to determine whether a constitutional right was clearly established than whether it was violated), overruling Saucier v. Katz, 533 U.S. 194 (2001). In particular, the question of whether a particular constitutional right is “clearly established” is one that the Supreme Court has increasingly emphasized is within the province of the judge. To be sure, this inquiry has always involved examining established precedent at a certain level of granularity. The Court first adopted the “clearly established” standard in 1982 in Harlow v. Fitzgerald out of concern that whether officials met the previous “good faith” standard, which included a subjective element, was too frequently being considered a question of fact for juries to decide. See 457 U.S. at 815-17 & n.27. The Court hoped that an objective inquiry into whether an official's conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known” would by contrast “permit the resolution of many insubstantial claims on summary judgment.” See id. at 818. In recent years, the Court has tightened the inquiry to focus closely on an analysis of existing precedent. In 2011, the Court clarified that while it “do[es] not require a case directly on point . . . existing precedent must have placed the statutory or constitutional question beyond debate,” such that “every” reasonable official—not just “a” reasonable official—would have understood that he was violating a clearly established right. Ashcroft, 563 U.S. at 741 (emphasis added). In later cases, the Court reiterated that clearly established law should not be defined “at a high level of generality” and that the “dispositive question” is “whether the violative nature of particular conduct is clearly established.” See, e.g., Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Ashcroft, 563 U.S. at 742). And this year in White v. Pauly, the Court stated that barring an “obvious case” under Graham v. Connor, 490 U.S. 386 (1989), or Tennessee v. Garner, 471 U.S. 1 (1985), the “clearly established” analysis in the excessive force context requires the court to “identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment.” 137 S. Ct. 548, 552 (2017) (per curiam) (emphasis added). The upshot is that qualified immunity was conceived as a summary judgment vehicle, and the trend of the Court's qualified immunity jurisprudence has been toward resolving qualified immunity as a legal issue before trial whenever possible. This approach presents a dilemma when, as here, a qualified immunity case goes to trial because disputed factual issues remain. Qualified immunity is then transformed from a doctrine providing immunity from suit to one providing a defense at trial. See Torres v. City of Los Angeles, 548 F.3d 1197, 1211 n.9 (9th Cir. 2008). Nonetheless, comparing a given case with existing statutory or constitutional precedent is quintessentially a question of law for the judge, not the jury. A bifurcation of duties is unavoidable: only the jury can decide the disputed factual issues, while only the judge can decide whether the right was clearly established once the factual issues are resolved. See, e.g., Dimick v. Schiedt, 293 U.S. 474, 486 (1935) (“The controlling distinction between the power of the court and that of the jury is that the former is the power to determine the law and the latter to determine the facts.”). We recognized this principle in Tortu v. Las Vegas Metropolitan Police Department, where we explained that “whether a constitutional right was violated . . . is a question of fact” for the jury, while “whether the right was clearly established . . . is a question of law” for the judge. 556 F.3d 1075, 1085 (9th Cir. 2009). Similarly, in Act Up!/Portland v. Bagley, we acknowledged that although facts related to an officer's knowledge and what conduct actually occurred could be disputed material facts to be determined by the fact finder, “whether the law governing the conduct at issue is clearly established is a question of law for the court.” 988 F.2d 868, 873 (9th Cir. 1993). The Ninth Circuit's Model Civil Jury Instructions support our view. They state that the Ninth Circuit Jury Instructions Committee “has not formulated any instructions concerning qualified immunity because most issues of qualified immunity are resolved before trial, or the ultimate question of qualified immunity is reserved for the judge to be decided after trial based on the jury's resolution of the disputed facts.” Ninth Circuit Model Civil Jury Instruction 9.34 (2017) (noting that “qualified immunity is a question of law, not a question of fact.”). As the Model Instructions explain, “[w]hen there are disputed factual issues that are necessary to a qualified immunity decision, these issues must first be determined by the jury before the court can rule on qualified immunity. The issue can then be raised in a [Federal Rule of Civil Procedure] Rule 50(a) motion at the close of evidence.” Id. (citing Tortu, 556 F.3d at 1083). Nearly all our sister circuits agree with the position we adopt here. The First, Second, Third, Fourth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits take the view that whether a right is clearly established is a legal issue for the judge to decide, although special interrogatories to the jury can be used to establish disputed material facts. See, e.g., Curley v. Klem, 499 F.3d 199, 211 (3d Cir. 2007) (noting that a district court that submits the clearly established inquiry to the jury commits “reversible error”); Pitt v. Dist. of Columbia, 491 F.3d 494, 509-10 (D.C. Cir. 2007); Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005); Littrell v. Franklin, 388 F.3d 578, 584 (8th Cir. 2004); Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004); Acevedo-Garcia v. Monroig, 351 F.3d 547, 563 (1st Cir. 2003); Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir. 2002) (“Qualified immunity is a legal issue to be decided by the court, and the jury interrogatories should not even mention the term. Instead, the jury interrogatories should be restricted to the who-what-when-where-why type of historical fact issues.” (citation omitted)); Pouillon v. City of Owosso, 206 F.3d 711, 718 (6th Cir. 2000); Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992).5 " By contrast, only the Fifth Circuit has unequivocally endorsed the jury determining whether the right was clearly established if qualified immunity is not decided until trial. See McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000). The Officers argue that the jury instructions were proper because we have previously allowed the issue of qualified immunity to be asserted at trial, citing three cases: Sloman v. Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994), Ortega v. O'Connor, 146 F.3d 1149, 1155 (9th Cir. 1998), and Thorsted v. Kelly, 858 F.2d 571 (9th Cir. 1988). None of these cases is persuasive. Sloman explicitly reserved the question “whether judge or jury should be the ultimate decider once disputed foundational facts have been decided by the jury.” 21 F.3d at 1468. In Ortega, the question whether a jury should be instructed on qualified immunity was not at issue: instead, “the only actual question on appeal as to the qualified immunity issue [wa]s whether substantive law that the court set forth in the jury instructions was correct and whether i[t] was clearly established in 1981.” 146 F.3d at 1156. And to the extent that Ortega and Thorsted suggested that the “clearly established” prong could be submitted to the jury, we conclude that those cases are clearly irreconcilable with intervening Supreme Court authority. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (explaining that cases are clearly irreconcilable where the higher court “ha[s] undercut the theory or reasoning underlying the prior circuit precedent”). Ortega and Thorsted employed a qualified immunity method of analysis evoking “double reasonableness” that has now been explicitly repudiated by the Supreme Court. See Saucier, 533 U.S. at 202-03; Katz v. United States, 194 F.3d 962, 965 (9th Cir. 1999), overruled by 533 U.S. 194; Ortega, 146 F.3d at 1155-56; Thorsted, 858 F.2d at 575. For these reasons, the district court erred in submitting the “clearly established” inquiry to the jury. The district court did not determine as a matter of law what the “established law” was nor did it offer the jury the opportunity to decide separately any factual determinations related to this prong of qualified immunity. nolu chan  posted on  2019-10-27   12:25:19 ET  Reply   Trace   Private Reply   Top • Page Up • Full Thread • Page Down • Bottom/Latest

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