Scrutable

Something actually happened
https://www.lawenforcementtoday.com/col ... KZPed2mK8Q

Colorado ended qualified immunity, amongst other things.

Doesn’t come into effect for 3 years, for some reason.

Re: https://leg.colorado.gov/bills/sb20-217

While I don't know much about the American legal systems, this change seems to me to be both inadequate and too much. To see why, consider how things work in England. To give an example, suppose you have ordered an item for delivery and the delivery driver, through their negligence, smashes your valuable garden gnome by dropping the item being delivered on top of it. Your standard remedy for this is not to sue the delivery driver, but to sue their employer under the doctrine of vicarious liability. Since the negligence was sufficiently closely connected to their employment, their employer is liable for any damages. This is far superior to sueing the employee because the employee may be too poor to be able to pay, and the employer is in the best position to check or provide training for employees and so should be liable for deficiencies. Furthermore, an employer is likely to have many employees, so if employees are of variable quality, the employer both benefits from the good ones and suffers because of the bad ones.

It seems that in America, for law enforcement at least, thing don't work like that. If a police officer does something wrong which incurs civil liability, you sue them rather than their employer. While you don't need to worry that they are too poor to pay, because their employer indemnifies them, it is still a personal lawsuit. Qualified immunity means that nobody is liable, which is clearly wrong, but leaving it as a personal lawsuit is dangerous. It is very easy to portray a police officer as acting in accordance with their training, when often the problem is with the training, so while the police officer should not be personally liable, their employer certainly should. By doing it the English way, the plaintiff would not need to show that the police officer personally was wrong - only that between them and their employer someone was wrong. Having then won compensation, the officer and their employer can argue over whose fault it was.

Furthermore, when it is a personal lawsuit, an officer might be portrayed as a heroic individual who routinely risks their safety for others - making them an ideal defendant. In theory this should not make a difference, as it is the single event which is being considered, but America seems to use juries for everything, so it could have a big influence. It also does seem to be somewhat unjust in that an individual is liable for their failings but does not gain from their successes. Abolishing qualified immunity without switching to lawsuits against the employer risks creating a set of precedents which simply perpetuate or even encourage the same bad behaviour that needs to be stamped out.


The steps I'd like to see to start reform are:

• Shooting a suspect who is running away is murder - except in the most unusual circumstances, such as when they are running to reach a weapon
• Death of a suspect in custody is manslaughter - except in the most unusual circumstances, such as when they would have died anyway, which does not include pre-existing conditions aggravated by detention (so, for example, a person who is allergic to pepper spray who dies when sprayed is a victim of manslaughter even if such an allergy is so rare that it was unexpected)

As a temporary measure, I would also like to see a rule that any officer who has killed in the line of duty, regardless of the justification, can not interact with the public. They can be given medals and pay awards if a killing was justified (e.g. shooting a terrorist who was on a killing spree), but must only do things like desk work at the police station. This is to provide a strong selection pressure which favours officers who do not kill - whether that is because they are insanely brave to risk their own lives or so highly competent that they are not in danger. I think this measure is needed because the level of killing is so high. It is obvious that a large proportion of killings are not justified - even if it is difficult to tell which ones are and which are not.

Millennie Al wrote: ↑

Mon Jul 06, 2020 1:49 am

... To give an example, suppose you have ordered an item for delivery and the delivery driver, through their negligence, smashes your valuable garden gnome by dropping the item being delivered on top of it. Your standard remedy for this is not to sue the delivery driver, but to sue their employer under the doctrine of vicarious liability. Since the negligence was sufficiently closely connected to their employment, their employer is liable for any damages. This is far superior to sueing the employee because the employee may be too poor to be able to pay, and the employer is in the best position to check or provide training for employees and so should be liable for deficiencies. Furthermore, an employer is likely to have many employees, so if employees are of variable quality, the employer both benefits from the good ones and suffers because of the bad ones. ...

An issue with your example here; if the delivery company breaks your garden gnome, you likely cannot sue the delivery company. If you bought the garden gnome and paid for postage in the order, you have no contract with the delivery company, only with the seller. The seller has the contract with the delivery company. So to get recompense for your garden gnome you have to contact the seller for a refund/replacement, and the seller can sue the delivery company. You cannot get recompense from the delivery company because you have no contract with them. You would have had to bought the garden gnome from the seller and arranged your own delivery from the seller to your door to be able to sue the deliverers.

However, this is what happens when there is an accident (or even if the delivery driver deliberately breaks your garden gnome!) However, if the delivery driver, upon finding that you aren't home decides to break in to your house, kill your dog, steal your car, murder your wife, etc, then the above doesn't come into it. The delivery driver has committed a crime and so is directly liable, not the company who employs him.

Similarly, a police officer who assaults someone, or even by inaction allows harm to come to them, has committed a crime. They shouldn't be able to hide behind their employer. A police officer who kneels on someone's throat for 9 minutes, or who shots someone, or who excessively hits someone with their baton should know that they are performing an act which is illegal, and that if they saw a member of the public do the same they would arrest them. A police officer shouldn't be able to perform acts of assault which would be illegal for members of the public. They are only allowed to perform a very small range of acts which the public cannot (performing arrest and placing restraints, some allowance to break traffic laws while chasing a suspect, etc).

There is still the ability to sue the police department too, if it can be shown that official procedures or the officer's training are deficient (eg, if the approved method of restraint is to kneel on the neck for extended periods of time).

The three year wait for the bill to come into effect is discouraging. Obviously it would take time to construct databases and train officers, but is there any guarantee that the three year period will be used for that? The pushback against the bill seems to be already starting, and three years gives it time to build momentum.

Martin_B wrote: ↑

Mon Jul 06, 2020 3:41 am

Millennie Al wrote: ↑

Mon Jul 06, 2020 1:49 am

... To give an example, suppose you have ordered an item for delivery and the delivery driver, through their negligence, smashes your valuable garden gnome by dropping the item being delivered on top of it. ...

An issue with your example here; if the delivery company breaks your garden gnome, you likely cannot sue the delivery company.

Note that the gnome is not the item being delivered! You can sue anyone who negligently damages your property. This is not a matter of contracts - it's a tort. For the item being delivered, you additionally are protected by specific regulations which allow you to simply reject the goods as damaged regardless of who was at fault. The seller might recover their costs from the delivery company, but you don't neeed to care about that.

If you bought the garden gnome and paid for postage in the order, you have no contract with the delivery company, only with the seller. The seller has the contract with the delivery company. So to get recompense for your garden gnome you have to contact the seller for a refund/replacement, and the seller can sue the delivery company. You cannot get recompense from the delivery company because you have no contract with them. You would have had to bought the garden gnome from the seller and arranged your own delivery from the seller to your door to be able to sue the deliverers.

Ok, for this bit I'll switch to the gnome being delivered. But even then, that's not correct. You can't sue the delivery company merely because the item arrives damaged, but you can if you can show that the delivery company was responsible for the damage. However, no consumer would because they are covered by stricter and more convenient regulations which allow the consumer to recover the cost from the seller regardless of who was to blame.

However, this is what happens when there is an accident (or even if the delivery driver deliberately breaks your garden gnome!) However, if the delivery driver, upon finding that you aren't home decides to break in to your house, kill your dog, steal your car, murder your wife, etc, then the above doesn't come into it. The delivery driver has committed a crime and so is directly liable, not the company who employs him.

If the driver commits a crime, you have two options: prosecute them for a criminal offence, or sue them for damages. If you successfully prosecute them, they will be sentenced, which may result in them paying a fine but will not necessarily result in you getting any money. Successfully sueing them, however, does result in you getting money (assuming the driver has money or is covered by insurance). Unless you are particularly outraged by an injustice, or a generally spiteful individual, you are much better off with a civil suit than a criminal prosecution as the threshold of proof is lower. This was famously seen with OJ Simpson who was acquitted of murder but was successfully sued.

Similarly, a police officer who assaults someone, or even by inaction allows harm to come to them, has committed a crime. They shouldn't be able to hide behind their employer. A police officer who kneels on someone's throat for 9 minutes, or who shots someone, or who excessively hits someone with their baton should know that they are performing an act which is illegal, and that if they saw a member of the public do the same they would arrest them. A police officer shouldn't be able to perform acts of assault which would be illegal for members of the public. They are only allowed to perform a very small range of acts which the public cannot (performing arrest and placing restraints, some allowance to break traffic laws while chasing a suspect, etc).

There is still the ability to sue the police department too, if it can be shown that official procedures or the officer's training are deficient (eg, if the approved method of restraint is to kneel on the neck for extended periods of time).

That's all very well in clear-cut cases, but there are many where it is more difficult to tell. In those cases you don't want to be trying to presuade a jury that the heroic police officer was in the wrong. Juries are much happier awarding cases against big impersonal organisations than defentants whose lawyers have played on the sentiment that if the jurors had been there they might have done the same thing (e.g. in the cases where there is a claim that the deceased was reaching for a gun).

snoozeofreason wrote: ↑

Mon Jul 06, 2020 2:47 pm

The three year wait for the bill to come into effect is discouraging.

I would say it was totally unacceptable. There seems no legitimate need for any delay at all.

A good article on the extent of the problem within US police forces.

https://www.vox.com/policy-and-politics ... orge-floyd

Here’s a striking example of the thinking highlighted in the first part of the above article. It’s by someone who is a prominent police trainer. https://www.policeone.com/police-produc ... hwNg3douX/

If people think like that it’s not hard to imagine why they’d kill first and not bother to ask questions.

Before any of the Brits are tempted to think that their police aren’t like that, some of the descriptions of US policing as an occupation force seem remarkably similar to those of the RUC in Northern Ireland.

Very good reads. The second very disturbing.

The second one, about calling the majority "sheep", criminals "wolves" and the police "sheepdogs". Did anyone else have it in their heads that wolves and dogs are closely related, and that dogs, even well trained, supposedly obedient ones, can attack sheep with no provocation, which is why they should be kept on a leash when around them. To abuse the metaphor a bit further, in the US the police don't seem to have a leash on them (which would be basically any form of strong oversight, or legal accountability if they abuse their power), and therefore too many of these supposed sheepdogs have revert to wolves when they get the chance.

CF

An uncharacteristically good take in the NYT.

secret squirrel wrote: ↑

Tue Jul 14, 2020 4:40 am

An uncharacteristically good take in the NYT.

I'm reminded of the famous MLK passage in "Letter from a Birmingham jail":

I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

https://www.africa.upenn.edu/Articles_G ... ngham.html

Good quote. And of course the "more convenient season" has yet to arrive more than half a century later.

secret squirrel wrote: ↑

Tue Jul 14, 2020 4:40 am

An uncharacteristically good take in the NYT.

Yes, a good article. I can’t find it but I recall a conservative criticism that the affluent liberals in places like New York or San Francisco deliberately perpetuated inequality via building regulations. They were all for helping minorities and poor people so long as they didn’t have to live near them.

ETA and here is the point via a miniseries: https://www.imdb.com/title/tt2492296/

Not sure where to put this tweet and video

https://twitter.com/sparrowmedia/status ... 18948?s=20

Unmarked federal police on the streets of Portland arresting people with no explanation or reading of rights.

Revealed: oil giants help fund powerful police groups in top US cities

The Guardian wrote:Big corporations accused of driving environmental and health inequalities in black and brown communities through toxic and climate-changing pollution are also funding powerful police groups in major US cities, according to a new investigation.

Some of America’s largest oil and gas companies, private utilities, and financial institutions that bankroll fossil fuels also back police foundations – opaque private entities that raise money to pay for training, weapons, equipment, and surveillance technology for departments across the US.

The investigation by the Public Accountability Initiative, a nonprofit corporate and government accountability research institute, and its research database project LittleSis, details how police foundations in cities such as Seattle, Chicago, Washington, New Orleans and Salt Lake City are partially funded by household names such as Chevron, Shell and Wells Fargo.

Police foundations are industry groups that provide substantial funds to local departments, yet, as nonprofits, avoid much public scrutiny.

The investigation details how firms linked to fossil fuels also sponsor events and galas that celebrate the police, while some have senior staff serving as directors of police foundations.

The report portrays the fossil fuel industry as a common enemy in the struggle for racial and environmental justice. “Many powerful companies that drive environmental injustice are also backers of the same police departments that tyrannize the very communities these corporate actors pollute,” it states.

Further evidence that the problem is by no means limited to the police. US society, as a whole, is built on a bedrock of inequality and injustice, and nowhere else in the world is the symbiosis between capitalism and racism more stark.

As part of the forthcoming reforms, I think police forces should be prohibited from receiving large corporate donations. Public services should be publicly funded, and if corporations want to contribute to that they should stop lobbying for tax breaks rather than manouevring to buy preferential treatment via the backdoor.

Dammnit BOAF

Robocop was supposed to be satire

Here's a police department that's taken action to deal with a rotten apple that brought their force into disrepute:

https://openvallejo.org/2020/07/28/vall ... shootings/

By calling for an investigation into the celebrations every time an officer shoots someone.

The captain who pushed for an investigation, John Whitney, would soon be out of a job. A former SWAT team commander with two master’s degrees, Whitney says he was forced out of the department after raising concerns about the badge-bending tradition and other misconduct. He filed a retaliation claim against the city in March.

“The community we serve will lose faith in us,” Whitney told Open Vallejo. “This practice needs to end.”

At the time of Whitney’s firing, nearly 40% of officers on the force had been in at least one shooting, Open Vallejo research shows. More than a third of those had participated in two or more. The department employs about 100 sworn personnel.

Duplicate post

f.cking hell, that's worth posting twice.

I really have my doubts that this system is reformable. By the time you've got rid of all the unsuitable officers there'd be hardly any left - cf Trigger's broom.

Will US Sting be in the lineup?

Bird on a Fire wrote: ↑

Thu Jul 30, 2020 5:35 pm

f.cking hell, that's worth posting twice.

I really have my doubts that this system is reformable. By the time you've got rid of all the unsuitable officers there'd be hardly any left - cf Trigger's broom.

Indeed.

The more you look into it, the more it's obvious that a complete overhaul is needed. Federalism might be great, but you probably shouldn't get much smaller than state-level police authorities. Maybe large cities or counties. But towns of 20,000 people? No.

I'll repeat: 18000 organisations with police powers, of which 12000 are police forces, and of which, about 6000 have fewer than ten officers, of which 2000 have one full time officer. And any of which can seriously ruin your day or life.

I suppose it makes the trope in cinema/TV shows about shadowy agencies/departments with high levels of authority (X-files, SHIELD, Stargate, Men in Black) feel plausible.

Then you get into the whole mess of police unions, which are far too powerful, and where the officers elect leaders who have been stripped of police powers for misconduct and who are banned from having firearms (in the US!)

jimbob wrote: ↑

Fri Jul 31, 2020 9:52 am

I'll repeat: 18000 organisations with police powers, of which 12000 are police forces, and of which, about 6000 have fewer than ten officers, of which 2000 have one full time officer. And any of which can seriously ruin your day or life.

Blinking heck! Could you give us the source for that (not because I think it's untrue, just because I'd like to be able to cite one if I repeat those statistics and am met with scepticism)?

snoozeofreason wrote: ↑

Fri Jul 31, 2020 11:47 am

jimbob wrote: ↑

Fri Jul 31, 2020 9:52 am

I'll repeat: 18000 organisations with police powers, of which 12000 are police forces, and of which, about 6000 have fewer than ten officers, of which 2000 have one full time officer. And any of which can seriously ruin your day or life.

Blinking heck! Could you give us the source for that (not because I think it's untrue, just because I'd like to be able to cite one if I repeat those statistics and am met with scepticism)?

I can't find the DoJ one I was looking for: but

https://www.bjs.gov/content/pub/pdf/nsleed.pdf

jimbob wrote: ↑

Fri Jul 31, 2020 11:57 am

snoozeofreason wrote: ↑

Fri Jul 31, 2020 11:47 am

jimbob wrote: ↑

Fri Jul 31, 2020 9:52 am

I'll repeat: 18000 organisations with police powers, of which 12000 are police forces, and of which, about 6000 have fewer than ten officers, of which 2000 have one full time officer. And any of which can seriously ruin your day or life.

Blinking heck! Could you give us the source for that (not because I think it's untrue, just because I'd like to be able to cite one if I repeat those statistics and am met with scepticism)?

I can't find the DoJ one I was looking for: but

https://www.bjs.gov/content/pub/pdf/nsleed.pdf

Annotation 2020-07-31 125621.png

Found it from Wikipedia:

https://bjs.gov/content/pub/pdf/csllea08.pdf

I was wrong:

About 8,800 state and local law enforcement agencies (49% of the total)
employed fewer than 10 full-time sworn
personnel, and about 5,400 (30%)
employed fewer than 5 officers. Among
these smaller agencies, about 2,100

jimbob wrote: ↑

Fri Jul 31, 2020 12:06 pm

Found it from Wikipedia:

https://bjs.gov/content/pub/pdf/csllea08.pdf

I was wrong:

Thanks for that. The revised figures look just as disturbing as the original ones.