#wouldnt want to spoil our appetite for criminal reform
If you are going to say that maybe The Left needs to ease up and increase police funding then for those of us who don’t have the brain of a goldfish you should include some measures to ensure that the police are under civilian control.
We’re way up on murders. Even the Vox article celebrating a reduction in the number of police kills admits that there were way more murders than the police kills were reduced by.
If I make no change to the police rules and simply get rid of the Progressive DAs who let so many violent guys roam the streets that they had to invent #StopAsianHate to cover it up and conflate 55 incidents of Trump being rude with violent assault, then I’ll come out ahead on the total number of deaths.
And we could change the police rules, but the problem is that it won’t change the underlying difference in the crime rates. And since it won’t change the underlying difference in crime rates, and it’s impossible to get perfect police performance, we’ll still have left-wing claims that police are “racist” and pressure regardless.
“But burglary is down!“
Yes, because burglary in 2019 is called home invasion in 2021.
This is, quite explicitly, “Omelas is the best we can get.”
Complaints about the circumstances of the death of, say, Breonna Taylor are fundamentally incomprehensible; her death, and the vague lack of accountability that surround it, are the necessary price we pay to lower the murder rate.
A concrete reaction to an individual injustice is fundamentally insane. “What could have been done to prevent the death of Breonna Taylor? What can be done to prevent such things in the future?” are irrational questions.
The only rational questions are “What can be done to lower the overall death rate of a given race of people?” and “Are police systemically racist?”
When you say, “What happened to Taylor was an injustice that never should have happened” you obviously mean“American policing is systemically racist” and obviously I can counter that by simply explaining to you that on net police cause fewer black deaths than the complete absence of any kind of institutional support.
“As long as the police department causes a netreduction in deaths in the black community when compared to the mass resignation of the entire force, they are beneficial to your race and you should recognize that.”
The whole thing is deeply rotten and relies on bad faith and really really poor and manipulative utilitarian reasoning.
Like, I absolutely don’t accept the underlying moral reasoning here but it also bothers me a lot how much of a non sequitur response this is to collapsed squid.
“Any given instance of institutional corruption or lack of accountability needs to be understood as a necessary evil given how utterly important the institution is”
That’s how you get insanely corrupt and inept organizations.
Didn’t Breonna Taylor die right after her boyfriend shot a cop?
That’s not a rhetorical question. That’s the version of the story I heard. If you heard differently, please tell me.
If the version I heard is accurate, I’m having trouble imagining what policy could have saved her. Whatever the law says, I think the cops would probably shoot back anyway. Human nature. You can arrest the cop afterwards, but she’d still be dead.
Seriously, what could have been done to save Breonna Taylor? Sleeping with a guy whose response to having his door knocked down with a battering ram is to open fire without asking questions is like having an alligator for a pet - you’re in a a dangerous situation and the government can’t realistically protect you if it goes south.
You could make the cops personally liable if they shoot a bystander
Yeah they’ll still shoot back if they get shot at
But they’ll be more careful not to get into that situation in the first place, by e.g. making sure they’re not raiding the wrong address.
I both agree and disagree with this take. The issue here is that what are we requiring of police in this situation?
If we put police in a situation in which people are obviously going to be shooting at them (such as a no-knock raid) and then say “you’re fine if you shoot back, unless you’re going to the wrong place in which case you’re going to be liable for whatever happens.” Then we’re essentially discouraging police not to shoot back. That’s dangerous.
Let’s take a hypothetical. The address on the arrest warrant authorizing a no-knock raid is wrong through no fault of the officers involved in the raid. In fact, it’s wrong in the police computer system altogether, the magistrate has it wrong in his records, it was recorded wrong by the initial officer making the observations (who is not involved in the raid), etc. Police burst in without knocking at 3 AM. The occupants are terrified and open fire. Police return fire, killing one of the occupants. They realize that they are in the wrong house.
Who should be held liable in that situation? Probably not the officers participating the raid right? Then the person who made the mistake? But, in the Breonna Taylor situation, assuming that the grant of the warrant was legitimate, there really wasn’t a mistake minus the fact that a bystander was killed. That’s why the death of Breonna Taylor is such an indictment against no-knock raids (just like the death of Philando Castile was an indictment against the use of force criteria police use).
Far better to just stop the practice of no-knock raids then to start changing liability in these kinds of situations. Though, we absolutely do need to address qualified immunity in general.
Who should be held liable in that situation? Probably not the officers participating the raid right?
Definitely the officers. The rest of the incentives flow from there.
Punishing the individuals who happen to be adjacent to an error, that is not the result of willful negligence, when it happens is, as far as I know, largely discredited in medicine and industrial safety. (Certainly it has been opposed to the philosophy of the US Naval Nuclear Program since the beginning, concurrent with its emphasis on individual integrity.) Why would it work differently for cops?
My reaction to your proposal, were it to be implemented, is that it’s an effort to throw inevitable unlucky individuals under the bus to avoid more difficult institutional improvements.
Yes.
No.
The morally correct party to hold liable would be the governing entity
But since sovereign immunity is (a) a thing, and (b) impossible to get rid of, the actual best place to put the liability is on the individual officer - who can then insist on passing that cost on to the governing entity by requiring them to insure their officers against this as part of the compensation package, neatly side-stepping sovereign immunity problems.
In addition to the clever idea of government-paid insurance functionally shifting some responsibility back off the officer, I would add that I’m not convinced this fully describes the situation under discussion:
the individuals who happen to be adjacent to an error, that is not the result of willful negligence
That might describe shooting the right person, missing (or overpenetrating), and hitting a bystander. Shooting the wrong person in the first place strikes me as a bit more willful than merely error-adjacent. I figure it depends a little on how much leeway the cops on the ground have to make the call, too.
A few things to say here. But here’s a very quick summary.
TL;DR:
(1) Sovereign immunity does not apply to municipal/ local governments (like the City of Louisville) in all situations, so you can sue them for torts in some circumstances.
(2) The point of the hypothetical I gave was that everyone is acting in good faith and people still get hurt. The Supreme Court has frequently, in like situations of good faith by police officers, excused misconduct up to and including the violation of constitutional rights.
(3) Police indemnification already creates an insurance-like system that clearly is not working.
There’s substantially more analysis and discussion under the cut, so I recommend you read if you have the time or inclination.
1. The United States does still have some form of sovereign immunity, but sovereign immunity applies to the Federal and State governments only and applies with numerous exceptions carved out by things like the Federal Tort Claims Act and the like. Local/municipal governments are not entitled to full sovereign immunity under Monell v. Department of Soc. Svcs, 436 U.S. 658 (1978) (Overruling Monroe v. Pape’s grant of total sovereign immunity from § 1983 claims and holding that there was limited municipal liability under § 1983 and other similar torts). Under Monell, a local or municipal government may be sued under § 1983 (which is a general statute that allows for suit when someone’s constitutional rights are violated) or other individual torts where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 659. Likewise, suit is also possible if the deprival of constitutional rights was due to government “custom” even if such custom has not received formal approval.
So, it is in fact entirely possible to sue the local government in charge of the police. In fact, that’s exactly what Breonna Taylor’s family did and won a 12 million dollar settlement from the City of Louisville. The only issues are showing that the action that caused deprivation was the result of a local policy, which in this case, is not particularly difficult. It might eve be covered by showing that, for example, the early-morning timing of the raid was due to government custom or unofficial government policy as well and that it had an unconstitutional element itself. So, you could be double-covered, or at the very least would have a legally cognizable argument to make.
So, I would posit that the best place to put liability is in fact on the municipality in situations in which the individual officer was not the one ultimately responsible for making the decision that cost an innocent person their life–if there is to be liability at all of course as opposed to just eliminating the practice and creating a per se liability for ignoring such a prohibition.
2. I think that error-adjacent is more due to the fact that if one presumes that the officers conducting the raid acted in good faith and following their due diligence, they likely still would have made the same decisions. The error comes not from the actual raid team, but from record-keeping that is incorrect with the address being wrong in both the computer system the police are using and the actual warrant that they are executing. In such a scenario, even if the raid team sought to double-check with the information either on the warrant to be executed, with the judge, or in the police systems they still would have received information that led them to the wrong place.
The idea was to present a situation where assigning legal liability to the officers was highly debatable if not inherently unfair unless one assumes that the police, by nature of their profession, should be held to a much higher standard of liability than a civilian.
Insofar as we are talking about the hypothetical I gave, I would classify the error as in the record-keeping and everything else that occurs as a response to said error. This leads to a situation where the officers conducting the raid are responsible for the deprivation of constitutional rights, but not intentionally, and not in a way that they could have fixed through due diligence. The idea is everyone is acting normally in a manner in which they should be based on the information that they have and yet people still get hurt and harm is still suffered.
We’ve actually seen Supreme Court precedent that suggests that the officers would not be found liable in such a situation. See e.g. Herring v. United States, 555 U.S. 135 (2009), United States v. Leon, 468 U.S. 897 (1984). The Court seems rather willing to bestow things like “good faith” exemptions on officer conduct that was based on misinformation that the officers could not have known at the time of their conduct up to and including the violation of people’s constitutional rights.
This is why I support things like a blanket ban on no-knock warrants and a reassessment of police powers and the role of police more than things like shifting liability to officers–to do so is potentially both over and under inclusive.
3. There have been a number of very interesting studies on police and insurance, some of which have results that indicate that such a system would have results contrary to what people want. Additionally, per research on qualified immunity from most legal experts (which I sadly cannot provide as it’s from subscriptions to WestLaw and LexisNexis) indemnification, or the process in which a municipal government pays for the losses assessed to an individual police officer or department, occurs at a conservative estimate in upwards of 75%+ of all cases where the officer is found liable. So, we essentially do have some form of an insurance system dealing with police accountability at the moment and it… doesn’t seem to be working.
Perhaps a more defined and “official” system of police insurance will change things, but I’m rather skeptical that’s the case.
