Debating Qualified Immunity for Police Officers | Adam Bates, Cato Institute | Lincoln-Douglas

0:05 all right people seem to think it’s okay all right we’ll go with this stop me if it’s a problem all right so when we talk about qualified immunity we need to start with sovereign immunity so the idea of sovereignty goes back to the Middle Ages to the idea of kings and queens and emperors and the idea back then was that the crown could do no wrong so anything that happened anything that the government did or that the state did was acceptable you could not bring a suit against the crown because the the king ruled by divine right and you had no right to question God but as we moved away from from this idea of sovereignty and monarchism the the protections of immunity started to erode as well but we still have the vestiges of this system that’s why so criminal acts in the United States are still technically crimes against the state itself not against the victim of the crime so that’s why criminal cases have names like the state of Texas versus John Doe instead of the victim versus John Doe because technically the state itself is the victim the crown is the victim so we still have those little vestiges of this system even in our system today that’s also for instance why victims of

1:35 domestic violence for instance can be forced to testify against their will because technically speaking they are not the victim the state is the victim the government is the victim and they are just a witness to this crime against the state so that’s what the criminal justice system is for the civil justice system exists to make victims whole that’s why civil cases have the two names it will be Smith versus Jones it’s that the state is not a party to the two your average civil case so if you want to be made whole as a victim of a crime you can bring a civil suit against the person who wronged you instead of going just going through the criminal which is not designed to make you whole it’s designed to make the state whole another corollary of this comes up when we talk about double jeopardy so a lot of bad TV and horrible movies have given people the impression that double jeopardy means you can’t be tried twice for the same crime in fact the Fifth Amendment says that that you will not be put twice in jeopardy of life or limb for the same Act but without understanding sovereignty you can’t really understand how double jeopardy works so double jeopardy means that you cannot be tried twice by the same sovereign for the same Act so we have multiple sovereigns in this country we have the state government and we have the federal government so you actually could be tried twice for the same act once at the state level and once again at the federal level we actually have a third sovereign I’m

3:06 curious if anyone if anyone can guess what it is before I get to it but I’m from Oklahoma so Oklahoma is formerly Indian country and actually the Indian tribes on reservations still maintain some level of sovereignty so you theoretically could be tried three times for the same crime if you committed a crime in Indian country and then moved into a State Territory and then we’re tried at the federal level also you could be tried three times for the same crime and that’s still perfectly constitutional so you can only be tried once by each sovereign that has jurisdiction so that’s the idea of sovereign immunity we still have these sovereigns in this country even though we don’t have kings and queens anymore so the idea was the crown can do no wrong and the idea of sovereignty was a complete bar to lawsuit you simply could not sue the government but over the centuries as monarchs and the nobility and the and the common people jostle for position and fought wars and and had disputes and rearranged these power structures that that idea of absolute immunity started to recede so I want people to keep that in mind keep keep in mind this idea of government sovereign immunity when we start to talk about qualified immunity so now let’s talk let’s start talking about qualified immunity so after the Civil War Congress passed well we ratified an amendment to the Constitution the 14th Amendment to the

4:37 Constitution in 1868 guaranteed the the rights and privileges of people not just against the federal government but now against the state governments as well prior to 1868 things that for instance in the Bill of Rights did not apply to state governments though those were only restrictions on the federal government after the the secession of the Confederacy in the Civil War people started to think well hey maybe this maybe the states have too much power under the Constitution maybe we need to do something to make sure that the states obey and respect the rights of their citizens as well this was especially a concern for newly freed black people in the former Confederate States where there was an immense concern that there would be reprisals and repercussions against black people in the south after the Civil War ended and that turned out to to be a valid concern that that’s what ended up happening so in 1871 Congress passed the Civil Rights Act of 1871 this is also called the Ku Klux Klan act and part of that Civil Rights Act is still with us today in the form of what lawyers refer to as 42 section 1983 and what section 1983 of the 1871 Civil Rights Act does is allow people individual citizens to sue agents of their state governments when those agents act under state law and deny people’s constitutional rights

6:09 so again that the concern what it’s called the Ku Klux Klan act because especially in the south but all over the country not just in the former Confederate States people were being abused by their local not just by the Klan but by Klan members who also occupied political offices or occupied police offices or sheriff’s departments so there was a big concern that the police departments themselves that the government itself in the southern states would be perpetually violating the rights of the people in those state and under old conceptions of immunity that we just discussed there was nothing people could do about it you couldn’t sue the state you couldn’t sue the individual person responsible because they were immune so this section 1983 was an effort to get around that it basically erased the idea of complete immunity for state and local officials who acting under color of law violated the constitutional rights of their citizens there is also 1983 applies to state officials that you can sue in federal court there is a corollary from a cave a Supreme Court case called Bivens that creates the exact same kind of cause of action against federal officials – so now we’re not just talking about suing state officials we’re also talking about suing federal officials if the FBI violates your rights if Customs and Border Patrol Department of Homeland Security or federal organ forcement organizations are subject to the same standard and

7:41 invoke try to invoke the same protections so what the court the Supreme Court when it starts to get all of these section 1983 claims people start suing the government and claiming violations of their constitutional rights the Supreme Court has to come up with some framework for analysis some framework for assessing when you go to court and say that government agent violated my rights I want money and that individual person should pay me for having violated my rights he should have to make me whole the court was forced to come up with some analytical framework to adjudicate these claims so what we have now the standard that we have now basically has two prongs one in order so in order to establish a 1983 claim you have to show that the government violated a clearly established right and that a reasonable person in the officers position would have known or should have known that their conduct was unlawful so that’s why we call this qualified immunity it’s not absolute immunity prosecutors have absolute immunity judges have absolute immunity the state theoretically has absolute immunity qualified immunity means it’s partial immunity there is a certain fact pattern that you can establish that that absolves that gets rid of the immunity and allows you to sue that person so again the the the key takeaway here is that the standard a clearly established the the government violated

9:12 a clearly established constitutional right and a reasonable person in the officers position or the government officials position would have known that their conduct was unlawful so the primary fight when it comes when it comes to qualified immunity claims are those two prongs one this may be we violated their rights but it was not a clearly established right or we didn’t violate the rights at all so that’s something the courts are gonna look at and the lawyers will fight about whether your rights were violated in the first place and whether this right was clearly established when it was violated and to a reasonable I had reason to believe it this is the officer talking I had reason to believe that my conduct was lawful even if it wasn’t and if the if the official or the the police officer meets either of those qualifications the suit is barred and the person who is suing loses and they don’t get their money they just go home so this is one of the key up defenses that police officers specifically in the context of police this is one of the key defenses that police have when they’re sued for alleged wrongdoing is to say my conduct was reasonable under the circumstances or it did not violate anybody’s clearly established right so this is a very controversial issue as I said in the opening this has become a controversial issue in light of all of the debates we’re having around the country about police about the use of force policies about search and seizure about the drug

10:43 war so advocates for qualified immunity will offer several arguments they will say one it’s important that we have clear guidelines that that the police officer on the street has clear guidelines when he pulls someone over or when he stops somebody or when he arrests somebody we need the police to know what the rule is what what the rule is that’s going to get them or what the rule is that we’ll have them protected from sue another Pro for qualified immunity advocates is that it it qualified immunity prevents officers from being afraid to do their jobs the argument goes that that police have a very dangerous job they are dealing with high-stress situations they have to make snap judgment calls and we don’t want a system that is so litigious and so hostile to police that they’re afraid to do their job because they they don’t know what what whether they’re going to be sued they don’t know whether they’re going to be ruined if they’re sued in this lawsuit and they have to hand over their money to the person they they wronged so there’s an interest in preventing police from being afraid to do their jobs and the last argument that you’ll run into often is the just the administrative costs government interacts with a lot of people on a daily basis and a lot of people are unhappy with the government with their police departments and if every one of these people sees dollar signs and is just looking for reasons to sue and the

12:14 courts don’t establish any kind of rigid structure or any kind of threshold in order to get these suits through the litigation costs are going to be enormous and we have reason to put a cap on that on the con side people who are skeptical or outright hostile to the idea of qualified immunity argue that one it’s an important tool for holding police accountable not just suing the police department so here I want to go back I said we should keep this in mind earlier if you are wronged by the police you generally have two options you can do both things but there are two different tracks you can take one is to go after the government agency itself so that’s usually the police department or in most jurisdictions it can be the city so for instance in the Freddie gray killing in Baltimore his family sued the city of Baltimore for negligence for all of these various civil law torts are what we call them when somebody wrongs another person in those compensation so you can sue the government itself like the city of Baltimore and now we’re not talking about qualified immunity anymore now we’re back to this idea of sovereign immunity or you can the individual responsible so when we talk about holding police officers accountable a lot of advocates for police reform say well the police officer doesn’t care if we sue the city of Baltimore because that money is not the money that ends up being paid to the victim is not coming from the police officer himself it’s coming from the city taxpayers so that this this without

13:44 the ability to hold officers accountable and hold them personally responsible it’s very difficult to get them to change their behavior or to punish them for their behavior another argument against qualified immunity is that there are very few other remedies when when your rights are violated by the government there’s not a lot that you can do about it that’s especially true when we talk about minority communities communities of color communities that that lack the political power to really do anything in in terms of any kind of sweeping legislative or policy changes people in these communities often lack the political power to to effect change any other way except through these suits so and that the concern there is that if we raise the bar so high to get over what are clearly established rights and this reasonable person standard that it becomes very difficult for people to to sue and hat and have their rights vindicated so I’m sure there are a lot of questions because this is a this is a very complicated issue and there are a lot of facets to it but so yeah I just want to sum up the problem we have here so the problem is the government violates people’s rights the police violate people’s rights not always intentionally often completely in good faith and unintentionally but people who are pulled over people who have these interactions with police are subject to illegal searches they’re subject to illegal seizures people have their First Amendment rights violated it’s a very

15:16 common problem and so the question is well what can we do about this what can we do about this that allows people to have their rights vindicated that allows people to be compensated when they’re harmed by by the government but at the same time does not make the government afraid to go out and do its job so that’s really the the debate that you guys I guess are gonna have and and that you’re gonna have to sort out but so with that with that said I think I’m happy to take questions from you guys and should I just start going down the list here or all right I’m just gonna start going down the list all right and I’m gonna start at the top so that you guys who asked early aren’t aren’t missing out let’s see well I don’t know very much about India so I can’t really comment on that Oh Indian nations why are the Indian nations like that Indian nations so I make it I may have confused people at that point so the Indian nations are

16:46 just another sovereign so that we have three sovereigns that you may run into in the u.s. one is the federal government one is the state government and the other are the Indian tribes because we have a very the US government has very strange relationship with the Indian tribes over the centuries and they have some kind of pseudo sovereignty on their reservations in places like Oklahoma and in in the Great Plains and in though in the West so in their on their reservations the Indian tribes are the sovereign they are the government they are the the law the legal authority in those places so they are recognized as another sovereign along with the federal government and the state government so when I say there are three sovereigns that’s what I mean there’s the federal government there are the state governments and there are the tribal governments and each of those count as separate sovereigns for purposes of immunity and purposes of double jeopardy now let’s see here you guys are doing a good job of answering my questions before I can even get to them all right so Federal Tort Claims Act that’s a good question so there are Federal Tort Claims Act and then there are the state Tort Claims Act and they both have basically the same function those are the waiver of

18:21 immunity of complete absolute immunity by the federal government or by the States so theoretically we still have this idea that I mentioned at the beginning that the the federal government can do no wrong and theoretically they the federal government cannot be sued for violating people’s rights same thing with your local state government these clips Tort Claims acts our wave function has statutory waivers of that immunity so what these Tort Claims Act do is they set out a list of behaviors and they say if our agents in the course of their employment do these this list of things whether this is negligence or malice or assault and battery things like that we are going to allow you to sue us and a lot of times these things will have caps on how much you can recover or how much the jury can award but so that’s what tort claims acts are those are at whether they’re federal or state level those are those sovereigns waiving part of their immunity you generally because of political pressure because they don’t want to deal with the system where the government is absolutely immune from suit the government starts to lose legitimacy in that system if you if if people have no recourse at all when the government violates their rights it creates instability and legitimacy so Rahim asked only officials or entire agencies can be tried so again we’re talking when we talk about qualified immunity we’re talking about civil lawsuits throughs so we’re not talking

19:52 about criminal prosecution but so like I said section 1983 claims are against individual actors if you want to go against the agency itself but where you go back to these twink Plains acts in order to see the city in Baltimore or the state of Maryland or something of that nature this qualified immunity necessarily mean no immunity no qualified immunity in the qualified immunity conception the only way that you’re not immune is if you violate a clearly established right that a reasonable person in your position would have known was it clearly established right and that you acted unlawfully so outside of that context you’re still absolutely immune let me see what can citizens do if they do not agree or want to go against the government or the decisions they made well well that’s very difficult so this system is set up to give people some mechanism through the courts to sue and and and collect money through compensation through a tort lawsuit if you lose or if you don’t like the way the judge rules or the jury rules you lose and if you really want substance of change at that point you if that’s where it’s time to to get laws changed to get new laws on the books to make it easier

21:23 to sue police officers to make it easier to sue the government just depending on on your particular outlook so that at that point you’re not looking for judicial solutions anymore now you’re having to go through through the political process so if a police officer thinks what they did was reasonable no one has the right to disagree no that’s not true so what so when we talk about the reasonable person standard the courts like to say that this is the objectively reasonable person if you guys ever go to law school you’ll be very well acquainted with the the hypothetical reasonable person so so this is not what that individual person thought it’s what a hypothetical reasonable person would have thought had they been in the same situation so critics of qualified immunity and critics of police practices in America will often say that the courts are too deferential to police when it comes to it seeing what the reasonable police officer would have thought in this scenario so so there is that criticism but at least theoretically we’re not talking about what that officer thought we’re talking about what a reasonable person would have thought in that situation so if the officer did something that was just completely incompetent or or completely in violation of clearly established law it’s not going to matter that the person says well I thought I what i was doing was okay so for instance something that’s clearly established law would be something like you have a right to burn a flag in a public forum right so so flag burning is protected speech under

22:55 the First Amendment if you’re burning a flag and a police officer comes up and says you can’t do that puts you under arrest roughs you up something of that nature and then went to court and tried to say well I thought what I was doing was perfectly fine judge that’s not going to cut it because that’s a clearly established right in any reasonable police officer with a modicum of confidence is going to know that that’s our right so so no it’s it’s the hypothetical reasonable person the law means what the judge says it means it’s very cynical but I don’t think I could I don’t think I can disagree with that I mean that that’s something that’s more of a philosophical question right and you guys can ruminate on that on that yourselves about whether law has an external source which is what many of our founding fathers believed they believed in this idea of natural law and and their attempt through the Constitution and the Declaration of Independence was was not to create rights was not to create the law it was to acknowledge what the law of nature what the law of nature nature’s God is the language Jefferson uses to whether they were just acknowledging what God or Nature had already created so how cynical you want to be about what the law actually is I’ll leave that to you let’s see I’ve seen a kid get beat up by jaywalking explain this well I can’t I in my work at Cato I do a lot of work on

24:25 our police misconduct website and I see cases like this all the day all the time the problem is Jay walking is against the law so we’re not really talking about qualified immunity now because we’re talking about somebody who’s in violation of the law and it’s not your right it’s not the Supreme Court has not recognized that you have a fundamental constitutional right to jaywalk so but if you want to look at places like Ferguson Missouri and the DOJ the DOJ the Department of Justice issued a report on the police practices of Ferguson Missouri after all of the this unrest well one of the things they found what was things like police abuse during things like jaywalking where there was just unnecessary excessive force used for jaywalking offenses so I can’t explain that for you but I can say that if you get roughed up for jaywalking and you want to make a claim that says the police the the excessive use of force violated my rights that’s what you have to show you have a clearly established right not to have excessive force used against you and a reasonable officer under that said under that same situation would know that that conduct was unlawful so that’s what your lawyer is going to have to to fight to fight about with with the government and with the judge what about unestablished rights so that that’s that’s a problem that’s one of the big problems with qualified immunity if the right is not clearly established

25:56 and the police officer violates it then by law you you will not be able to sue that police officer the court should throw that case out the the way that works is the more times it happens and the more Court rulings you get that say this is established law the harder it becomes for the police to then say after the fact this was not established so where that comes up a lot is with things that we haven’t had a lot of Supreme Court rulings on things like cell phones where cell phone cameras so like filming police and things of that nature where we don’t have a Supreme Court ruling that says you have a right to film police we do have Circuit Court rulings from all around America saying that but so if you’re trying to film the police and you say it’s my First Amendment right which it is and every Circuit Court has found that it is and you the police rough you up you sue the police that’s the kind of case where they can say look that we may have violated his constitutional rights but it was not a clearly established constitutional right and until we get enough of those cases you may just be out of luck there let’s see what is the difference between sovereign and qualified immunity ok so again so sovereign is the immunity enjoyed by the sovereign by the state itself by a government agency by the government of the United States by the government of

27:26 Virginia and historically sovereign immunity was an absolute bar meaning you could not sue you could not sue them for violating your rights period but that would that protected the sovereign qualified immunity is a personal protection for the agents of the government so this is about the individual person the individual police officer trying to protect himself from suit you’re not suing the government you’re suing officer Joe because you think officer Joe violated your rights so sovereign immunity and qualified immunity that they flow from the same kind of idea that the government generally should be protected from lawsuits but so that’s the difference sovereign immunity protects agencies it protects entire governments qualified immunity protects individual police officers let’s see what are the alternatives proposed to protect police doing their job but also protecting the rights of citizens as well well when it comes to alternatives there aren’t them you’re not gonna find very many people who say we need to junk the entire idea of qualified immunity and it should just be open season on on suing police officers because there is this acknowledgment that what the police have a hard job and that we don’t want a system where the police are afraid to be police and do police things because they’re afraid of getting sued all the time so the alternatives to the dispute about qualified immunity tends to be on whether the standards are too harsh

28:59 whether the cons for instance whether the constitutional right needs to be clearly established or whether it can just be a constitutional right so that scenario I gave you previously where we talked about filming the police for instance a a lot of qualified immunity critics will say well look if the Supreme Court rules that you have a right to film police then that cop violated your rights and he should be punished for it and that that can set an example then for the rest of the police officers to know that they can’t engage in this behavior the pushback the other way like I said is well if the police didn’t know if the police had any reason at all to question whether this is a constitutional right or the court hasn’t declared it a constitutional right yet then is it really fair to hold us responsible so I think that that’s the big the big fight is about these two standards themselves is about what it means to be a reasonable person and what and whether we should have to clearly establish the right before we can vindicate it it’s not so much the idea of just throwing out the concept of qualified immunity at least politically speaking I think that’s just kind of dead in the water let’s see could a cap be used by a government agent to commit serious crimes but not be forced to pay the necessary recompense required by normal law well so if if a police officer is committing serious crimes then the way our system typically functions there is that Officer is then brought up through

30:30 the criminal system not as I said when we’re talking about qualified immunity we’re talking about civil cases against police officers but if the police officer is committing actual crimes murder rape kidnapping assault and battery things of that nature then we also have the criminal justice system to hold people accountable there so we’re talking about when we talk about 1983 and we talk about qualified immunity we’re talking about ways of making the victim of the misconduct whole we’re not really talking about ways to get after police who commit serious crimes that’s what the criminal justice system is for do I agree that police officers should be better educated about civil rights and should they have better connections with communities that’s for a Melanie absolutely I agree I think I mean police do receive training on civil rights on constitutional rights but the thing is we have 18,000 different law enforcement agencies in this country and and that’s everything from the NYPD to podunk little sheriff’s departments out where I grew up so the level of training and the level of understanding varies widely by jurisdiction and in it and it creates problems but I absolutely think police should be trained and educated and held responsible for protecting our constitutional rights I think that is the first function of government if the government and this you can again you can go back to to the Declaration of

32:00 Independence that the government exists to secure these rights and if the government is not securing these rights then it’s failing at its most fundamental function as far as having better connections with communities I think it’s become very obvious over the past several years that that the police have lost legitimacy in many communities around the country especially communities of color and and again through these DOJ reports we’re seeing that a lot of this is based on predatory police practices things like stop and frisk things like civil asset forfeiture just unnecessary escalations of situations if you’re familiar with the Sandra bland Sandra bland tragedy if you’re not familiar you should go watch it on YouTube and just see how what begins as an ordinary traffic stop escalates into physical violence for no reason so so absolutely I think community community police relations are are in tatters right now and and I think it’s incumbent on the government to fix this because I think the government created this problem in the first place let’s see Joseph doesn’t the situation of qualified immunity also set inconsistent standards since the reasonable officer rule transfers to multiple people with their own beliefs and individual standards so the idea behind it is to set a consistent standard right is to have one this idea that there is this one reasonable officer you know in all of

33:31 our minds and that what that officer thinks is what the reasonable officer would think and if you violate if you deviate from what that is then you can be punished so it’s actually an effort to bring all of those disparate beliefs into into harmony with each other now the problem is you have thousands of judges around the country and all of these different judges may have there have it in their own heads what the reasonable officer should do in a given situation so the problem we have here though is it’s very difficult to think of how we get around this problem right except to the the argument would be that we should get away from the the reasonable person standard at all we should just ask ourselves did this person did the police officer violate the constitutional rights of the person and if so then they’re liable for any further harm that they caused and just do away with the reasonable person standard completely I think that’s really the only way to get around this problem of having different interpretations and having to fight about what the hypothetical reasonable person thinks again if you go to law school you’ll have a lot of fun conversations about this this reasonable person you’ll grow to hate this person let’s see our school resource officers covered under qualified immunity even though they’re not necessarily a state actor in most circumstances that I’m familiar with school resource officers absolutely are state actors whether because they’re actually uniformed police officers in which case they’re state actors or they are under contract with the school and if it’s a public

35:01 school that then makes them state actors because so your school teachers are state actors your principal is the state actor if you go to it if assuming you go to public schools so the issue the problem with school children is not so much the state actor problem the problem with school children is that according to the Supreme Court children in public schools have diminished rights relative to a person on in a public forum walking down the sidewalk so there’s a famous school case called tinker V Des Moines that is about students during the Vietnam War protesting the war by wearing black armbands and the Supreme Court ruled in that case that you’re right do not end at the schoolhouse gate so there’s this great locking language about how students are still entitled to First Amendment rights you still have constitutional rights against the government even if it’s your school but since that ruling the Supreme Court has done much to to chip away at the rights that students enjoy so the basic standard that you have now is any behavior you’re engaging in that disrupts the learning environment you don’t have a right to disrupt the learning environment so the issue when it comes to holding school officials and police officers and schools accountable is that they have a much lower standard to say that they were not violating your rights because basically you only have a right to do things that do not disrupt the learning environment I personally I favor more robust protections for the rights of students especially the free speech and Association rights of

36:32 students so I but that’s where you need to focus if you’re concerned about student rights is on this idea that students themselves because they’re under the stewardship of the school they don’t have the same rights they would have you know walking on the sidewalk going home does inherent bias play any role in qualified immunity yes I mean of course it does inherent bias is is a problem all across our our system and especially it’s especially prevalent in the justice system or at least it’s especially obvious and observable in the justice system because the because the justice system is where the government and the individual really come into contact and where their interest really clash most severely and most violently so yes judges for an so the way inherent bias might work in qualified immunity is for instance the shooting in in Oklahoma in Tulsa Oklahoma a few weeks ago the man’s name was Terrence Crutcher and his he was outside his car a police officer pulled up he was behaving strangely he didn’t he didn’t obey the commands of the police officer and she shot him she shot and killed him there’s a hell there’s footage from a police helicopter in the area and you hear one of the officers in the helicopter say he looks like a bad dude and and at that that police officer didn’t know anything about that man except that he was a large black man that that’s all the police officer had to go on to make that that declaration so when we start seeing

38:04 again going back to this reasonable person it’s impossible then when a judge for instance is trying to decide what the reasonable person would believe under the circumstances if the judge thinks it’s reasonable to form those kinds of conclusions about somebody based on their race or their size or their gender then yeah you’re gonna have that you’re gonna have this bias problem and you can’t really get away with form from it as long as we have this reasonable person standard let’s see special requests what relevant cases that we hear about in the news such as the case against Darrel Darren Wilson where cases were qualified immunity could have applied or did apply second what are some alternative options for citizens besides qualified immunity that could be used to constrain immoral police conduct so so again when it comes to something like the Darren Wilson case yeah so you’re in those cases you’re gonna have a criminal case which didn’t go anywhere because they decided that the shooting was justified and then on the other side you yeah you will have the the civil case show the 1983 case to say his treatment of Michael Brown violated Michael Browns constitutional rights in that particular case as far as I know you would have a Darren Wilson because he has the DOJ that came in and said look this was a justified shooting he is probably gonna he would probably be protected by qualified immunity because his argument would be I didn’t violate Michael Browns rights and no reasonable person in my circumstance would think

39:35 that I was acting unlawfully because I was defending myself and here’s what the Department of Justice said that agrees with me so in that case yeah I think qualified immunity would apply and and protect Darren Wilson from a lawsuit on the other hand as I said before the DOJ is investigation of the entire police department found a lot of patterns and practices of constitutional misconduct that probably would justify civil rights lawsuits against the department itself or against this the city of Ferguson Missouri but but no I think Darren Wilson himself would be protected by qualified immunity what are some alternative options for citizens that could be used to constrain immoral police conduct well that’s that’s a very difficult question because because of this immunity setup that we have so for the most severe instances of police misconduct we have that’s where we have the criminal justice system where hopefully you have prosecutors or grand juries that are willing to bring criminal charges and willing to hold individual officers who abusive officers accountable and responsible and put them in prison if need be but as far as holding them accountable for just violations of your rights things like stop and frisk that’s very difficult the answer the unfortunate answer to the question is that this has to come through the political branches that’s that’s talking to your Congressman that’s talking to your state and local legislators and coming up with statute there’s nothing

41:07 that prohibits from so it’s important to remember that qualified immunity is the doctrine created by the court system it’s not in the Constitution the US Constitution doesn’t say that police enjoy qualified immunity the Supreme Court just said that so you could pass a law that says there’s no such thing as qualified immunity or a law that says we’re going to get rid of the reasonable person prong of qualified immunity or any violation any violation of constitutional rights the individual responsible shall pay whatever a hundred thousand dollars ten thousand dollars so you have a lot of room legislators have a lot of room to do really whatever they want to hold police accountable it’s just very difficult politically speaking it’s very difficult to to push on this and and to to push for reforms that that make police more vulnerable to lawsuits police enjoy their there that’s a very powerful lobby in this country police unions and policemen and for a lot of Americans they have an inherent respect and admiration for police and it’s very difficult to go in to go to those people and say look we have a problem and we need laws that make it easier to sue police so it’s really a political solution at that point and that’s where you just you know if you if you’re really passionate about it you just need to start banging on legislators doors and telling them to change things so is the justice system inherently corrupt and just stick to simply obeying the laws can’t we make

42:38 laws for situations that some would consider previous acknowledgment of these situations like searching a house under urgency but without a warrant so yes yeah there is the Constitution establishes a floor that the government cannot go beneath as far as protecting your rights so things like the warrant requirement if if the Supreme Court for whatever reason decides that the police no longer need a warrant to search your house which is that you know the search of your own home your own residence is like the prototype Fourth Amendment protection case but if we imagine a world where the Supreme Court says it doesn’t matter they don’t need a warrant to go in your house it’s where you were allowed to pass laws the legislature is allowed to pass laws it says wait a minute the courts got this wrong we are imposing a warrant requirement on on the searching of homes as for so the government is free to to hold itself to a higher standard then the Supreme Court does or then the Constitution does it just can’t hold itself to a lower standard okay and as for the the system being inherently corrupt well as somebody who works on criminal justice and policing issues every day I can say that you you do start to feel that way sometimes that the the fight is just too hard and that there’s just too too many problems that need solving but what what good is that outlook really it’s not I don’t think it’s a productive way of seeing the world because it’s hard to

44:10 change things if you just throw it all off as a lost cause right so there is corruption there is inherent bias but I think there are enough good people in government there are enough good people working on these issues and passionate about these issues that don’t don’t get caught up in how corrupt things are get get caught up and how and how to fix things let’s see as far as sovereign immunity goes is the city local level included when you say three different parts of it could school’s be included since there could be certain punishments from within the public school system so that’s a great question generally speaking no the city and local governments are considered part of the state so it’s state fed the state is the lowest level there so you couldn’t be punished once by the city and then again by the county and then again by the state that would fall under double jeopardy is all under the state’s sovereignty but the school example you bring up is actually a really interesting question that I’m not sure I know the answer to certainly for if you do something in school that also constitute that violate school rules and also constitutes a crime in the state you can be punished for both of those things you can be punished by the school suspended expelled you know what have you and then tried in Criminal Court for for the crime you committed so at least in that school example I think I think you’re right I think you could be tried by both and that’s not double jeopardy because the school’s punishment against you is not considered the same as like criminal punishment it doesn’t count as

45:41 jeopardy mr. Bates you can feel free to call me Adam if you like is there any specific article or segment of the Constitution that provides government immunity to civil suits sure there well there are some amendments to the Constitution I can’t run them off the top of my head I think yeah I don’t know I think the seventh amendment may be I don’t know off the top of my head there are provisions of the Constitution that forbid for instance people from one state suing the government of another state things like that but the idea of immunity generally it pre exists it predates the Constitution it’s one of these ideas that is just taken for granted by the early Supreme Court and I think by the Constitution that of course you of course the government enjoys immunity it’s just one of these things floating out there that there would have been no question at the time that that immunity existed so there wasn’t even a reason to bother writing it down could you clarify how qualified immunity is used is it something that police officers uses defense within a trial or is it a doctrine that prevents any trial from taking place that’s a great question I didn’t get into that too much because I didn’t want to go too far into the the lawyer weeds but so the idea of qualified immunity is not just to prevent judgments against police officers so not just to prevent bad outcomes but to prevent suits themselves so the

47:13 way it’s actually used is that’s usually one of the first things the the police officer is going to raise and say this suit is barred by qualified immunity he cannot sue me so it happens very early in the process and the idea is not just to protect police officers from from having a bad outcome but to protect them from being sued at all in the first place so it’s one of the first things that happens in these kinds of cases what happens in cases when it isn’t clear whether a reasonable officer would have done what the accused officer did well if if it’s not clear if the judge can’t make that determination then it should go to trial then that should be an issue at trial to argue what the reasonable person would have thought at the time and then that’s up to the Trier of fact whether that’s a jury or a judge so yeah if the the case of the plaintiff should be taken in the light most favorable to the plaintiff so if you can make an argument or put that doubt in the mind or they are they don’t know what the reasonable person would have done under that scenario then there should be more evidence presented and the case should keep going and apparently that was the last question uh so yeah I hope I hope this has been somewhat informative for you guys and yeah thanks you guys have been great and those were great questions

49:09 I don’t know if they can hear me but it’s been years for the beard you you hi everyone we’re just gonna ask you to take a couple of minutes to fill out the survey that I’ll switch to in this next page and under the survey you’ll see a link to some other great resources we offer at the Bill of Rights Institute I hope you’ll join me in thanking mr. Bates for a great presentation so I’m gonna switch to that now thank you all so much for participating