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Sunday, September 17, 2023

A Question Of Qualified Immunity

Another example of a court second guessing a cop’s split second decision 


In multiple writings on various sites that since the beginning of the war on police, I’ve made the point cops are “joining the fire department.” By that I mean patrol officers are signing on, going to their “safe spaces” (parking lot, etc. where they can safety handle paperwork, etc.), answering their calls for service, but nothing else. 


Effective patrol, by its definition, must be proactive. Cops must drive around, know the areas, see the “usual suspects” at work, and act against them to prevent criminal incidents. For instance, an experience patrol officer sees a convicted drug dealer on the sidewalk. He observes an apparent sale to a second person, so he stops the suspect and starts to talk to him. In accordance with Terry v. Ohio, the officer conducts a quick pat down and feels the outline of a gun or knife. He then had reasonable suspicion to reach into the pocket where he discovers the 9mm he was carrying. 


As the man is a convicted drug dealer, he cannot carry a firearm. The officer places him under arrest and he’s sent back to jail or state prison. What is not shown is the drug dealer was going to use that later on a drive by shooting. While he’s being processed, the other gang banger dodges being shot (for today).


I thought of this after reading this article on two Los Angeles police officers and what they have endured since a shooting in 2018. They were called for a disturbance in a gym locker room, where the suspect refused to leave and had assaulted a security officer. 


“After engaging the suspect, who was naked and much larger than both officers, the suspect refused to leave and resisted attempts to take him into custody. After warning him they would use their TASERs, the weapon was discharged with no effect. 


The suspect then punched one officer in the face so hard he was disoriented and knocked against a wall. After regaining his balance, he saw the suspect was punching his partner in  the head multiple times. The female officer was in a fetal position on the floor, and the suspect grabbed her TASER. At that time the officer ordered him to stop, and then fired, killing the suspect.”


Did the officer have “reasonable fear for the life and serious injury of himself or a third person?” I think so, the suspect had overpowered both of them, TASER was not effective, he was punching one officer repeatedly in the  head, and he was grabbing for her TASER. However, the 9th Circuit Court of Appeal stripped the officers of qualified immunity, leaving them open to personal financial liability in civil suits over the shooting. 


After several months of an appeal, the 9th Circuit reversed, restoring the qualified immunity for the officer who fired the shots. “The court stated the officers were under a ‘high-stress, rapidly developing situation with a suspect, much larger than both officers, in a confined space. Moreover, use of an intermediate weapon, the TASER, did not bring the man under control.’”


Now I have no doubt the city will settle with the criminal’s family as soon as possible. But the question is would Los Angeles have stood behind the officers in civil litigation if they were not force to? Forgive me if I say, “I doubt it.”


The action of the officers here is within applicable law, and I’ll assume department policy. But the departments and cities are not interested in justice. They want to cover their…liability.


A classic example is from the 1980s, where a Mid-West city police department (like most major cities in the 1980s) was transitioning from revolvers to semi-automatics. The academy trained the officers if a jam occurred during a firefight, you should “CLEAR! (clear the jam), RACK! (load a round in the chamber) and SHOOT!” Later an officer has a jam in a firefight and does exactly that, “CLEAR! RACK! SHOOT!” However, while the officer was handing his pistol the suspect dropped his and was not a deadly threat anymore. He died from being shot. 


During the lawsuit for the suspect’s death, the city attempted to sever liability, saying the officer should have reassessed before shooting. Fortunately for the officer, his training records were produced to show that was the city trained their officers to do, and they were liable.


Current example, a major city just revised its pursuit policy. Speaking with a sergeant on the force, he was very plain on the matter. “They are putting all the liability on the street supervisor. I’ll say it. Unless the suspect driving away is a murder suspect, I’m cancelling the pursuit.” Trust me, he’s not the only sergeant thinking that, and the criminals know it. So they will simply drive off, betting their will not be pursued. 


Between the feds coming down at every possible chance, cities not backing their officers, and departments higher ranks being staffed with politicians, not cops, officers will not stick their neck out. Not physically (see the LAPD example above) or legally/financially. And to borrow the phrase, “women, children and minorities hardest hit.”

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