Iowa's "Back The Blue" Law Protects Cops, Not Public

By K. W. Locke

Several states, most recently New Mexico, have abolished or curbed the doctrine of qualified immunity which prevents many victims of police misconduct from taking cops to court.  Iowa, however, has now gone in the opposite direction.  Its legislature recently passed a bill which writes this judge–created doctrine into state law.

Iowa Governor Kim Reynolds signed the bill into law on June 17.  Referring to police as "the heroes who patrol our streets," the governor said "tragically, this fundamental and wholesome part of America's culture is now under vicious attack."

Does that strike you as a bit over the top?  Sadly, the discussion has turned into a grade B western movie with good guys who can do no wrong against bad guys who are always wrong.  People feel compelled to take sides, each person deciding which group wears the white hats.

But that kind of either/or thinking – cops are either angels or devils – doesn't deliver any useful answers.  We need a system which recognizes that police officers are human beings with assorted flaws, just like the rest of us.   America's founders, mindful that imperfect human beings would be running the government, built checks and balances into the Constitution.  We need to apply the same principles to the criminal justice system.

Even the concept of qualified immunity isn't bad in theory.  Most of the harm comes from the way it has been applied.

The Supreme Court essentially has held that a police officer can be sued for violating someone's legal rights only if the right had already been clearly established.  That sounds reasonable enough, but in practice, courts have made it very difficult to show that a right was "clearly established."

For example, in one recent case, police in Fresno, California were investigating illegal gambling and executed a search warrant authorizing them to confiscate money.  The officers claimed that they had seized $50,000.  However, the property owners filed suit, alleging that the cops really had taken more than 6 times that much, and had pocketed, unreported, $151,380 in cash and $125,000 rare coins.

The officers invoked qualified immunity.  To overcome that defense, the plaintiffs had to show that they had a Constitutional right not to be stolen from, and that the right was so clearly established the police reasonably would know about it.

That sounds pretty self–evident.  But not to the judges.

The U. S. Court of Appeals for the 9th Circuit looked at the case precedents and decided that, when the seizure took place, it had not been clearly established that stealing the money violated  a Constitutional right.  "Although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment – which, as noted, is a different question."

This type of judicial nitpickery makes me want to tear my hair out.  Such reasoning has let cops off the hook for many other kinds of misconduct.

The officers should have known not only that stealing was morally wrong, but also that it was illegal.  They're cops.  If someone else had taken the money, they would have gotten out the handcuffs.

But the federal court wasn't concerned about whether the police knew about the state law prohibiting theft.  The court was concerned with Constitutional law.  Was it a violation of the Constitution – of the Fourth Amendment's prohibition on unreasonable searches – for the officers to take the money?  

At the time of the seizure, no court had held that it violated the Constitution for cops to seize money and pocket it.  Hardly surprising.  How often would a case like that come to a court's attention?

However, it would be easy to draft a statute which preserved the concept of qualified immunity while eliminating its potential for abuse.  For example, the law could provide that there would be no immunity for conduct that violated a right clearly established by judicial precedent or by a statute.  It might also provide that there would be no immunity for conduct that violated a city ordinance or a police department regulation.

Unfortunately, the Iowa legislators made no attempt to correct the problem.  Their new "Back The Blue Law" specifically states that it applies in addition "to any other statutory or common law immunity."

                         

Who Pays For SWAT Team's Mistakes?

By K. W. Locke

    What do a SWAT team and an escaped lion have in common?  Both roar in and cause damage, but don't have to pay for what they break.

    You've already read here how a SWAT team in McKinney, Texas, caused $50,000 damage to a house and left the innocent owner with the bill.  We've also reported about the SWAT team in rural South Dakota that tore up a house trailer even though officers knew witnesses had reported that the fugitive was elsewhere.

    Here are more examples of what can happen when you give people guns and battering rams and no–knock warrants and also give them immunity from lawsuit.  Earlier this month, a federal appellate court issued another decision illustrating just how difficult it is to hold the police liable for damage they cause.

     The court considered a 2018 incident when a SWAT team in Henry County, Georgia, seeking a drug dealer, battered in the door of the wrong house, exploded a flash-bang grenade and arrested a 78–year–old who had just been sitting there watching television.  Later, the cops learned they'd made a mistake.
                                     
    The warrant had listed the correct address for the drug dealer and the cops had gone to that address first.  They found that building to be in bad shape and, apparently, unoccupied.  So, the SWAT team captain figured that the correct building must be this other one nearby.

    He might not have made that mistake if he had read the warrant carefully because it included a description of the drug dealer's house.  But the SWAT captain didn't bother.

    Narcotics detectives had wanted the drug dealer arrested but considered him too armed and dangerous for them to handle alone.  So, they asked the SWAT team to provide the muscle.  The SWAT team captain relied on the detectives to point out the right building to raid.

    When the court found that the captain had immunity, it stressed that the raid was dangerous because criminal friends of the drug dealer lived nearby.  The court also described how carefully the officers had planned the raid.  Therefore, the judges reasoned, this case was different from an earlier one where the court had denied immunity to a clearly negligent officer.

    Courts, wielding the doctrine of qualified immunity, make it very difficult, if not almost impossible, for someone to hold the police liable for their own negligence.

    The law holds a private party using something inherently dangerous - whether it be dynamite or a lion - to be strictly liable for any harm caused.  But a city or a county can equip a SWAT team with weapons and explosives and set it loose, and not have to pay a cent for any resulting damage!  That needs to change.

       In Flint, Michigan, a SWAT team with a no–knock warrant battered down the door of the wrong home and held a family at gunpoint.  A lawyer representing 28–year–old Michelle Colson and 56–year–old Renee Dunigan has now written Attorney General Merrick Garland asking for a federal investigation.

    The lawyer's letter said that the Michigan State Police SWAT team "rousted the family at gunpoint, literally from shower, sleep, and bed, and forced them to sit together for one hour – in Michelle's case unclothed, having just stepped out of the shower – while approximately 50 officers tore the house apart."       

    An informant had given the State Police misleading information.  The suspect lived in the house next to the one the SWAT team raided.   The letter requesting a federal investigation claimed that the police did not do anything to verify the information before they conducted the raid.

    This would be a good time for Attorney General Garland to act.  The federal government has just announced it will investigate domestic terrorism.  Few things can cause more terror than a SWAT team running amok.

* * *

   An earlier post on this blog reported that Loveland, Colorado police officers had injured a 73-year-old woman with  dementia who reportedly had walked out of Walmart without paying for an item.

   Two of the cops involved - shown above in an image taken the day of the incident by a police department surveillance camera - have resigned.  Both Austin Hopp (at left) and Daria Jalali (right) now face criminal charges.

    Larimer County District Attorney Gordon McLaughlin charged Hopp with second degree assault, that is, with assault causing serious bodily injury, which is a felony.

    The DA also has charged Hopp with "attempt to influence a public servant," which is also a felony.  The DA alleges that Hopp filed a misleading police report concerning the incident.

      The other former officer, Jalali, faces charges under a relatively new, and pioneering, Colorado law requiring a police officer to intervene, rather than just stand there and do nothing, when another officer is hurting someone in custody.  The DA charged Jalali with such a failure to intervene as well as with a failure to report the use of force.  Both are misdemeanors. 

   Additionally, both former officers face charges of official misconduct, arising out of the same incident.

 Banner based on image from bodycam worn by member of the Henry County (Georgia) Sheriff's Department Special Response Team; Georgia map from Wikipedia.   Photograph of Michigan State Police sign from MSP website. "Update" banner, showing Officers Hopp and Jalali "fist-bumping," based on image from surveillance camera in Loveland (Colorado) Police Department.  Bodycam image of arrest from Loveland Police Department.  Mugshots from Larimer County (Colorado) Sheriff's Office.                                                                                      

 

 

 

 

 

 

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

 

 

Illinois Bill Curbs Coercive Interrogation of Kids

by K. W. Locke

    The Illinois legislature recently passed a bill to prohibit police interrogators from lying to kids under 18.   According to the Innocence Project, which supports the measure, no other state has enacted such legislation.

    Researchers have documented 250 instances when coercive interrogation tactics have led to false confessions.  Read about some cases here and here.

    To avoid confusion, I should point out that when I use the term "false confession," I'm not talking simply about a person pleading guilty to a crime he didn't commit.  That happens a lot, and there are many reasons why.

    If a poor person has been sitting in jail for months because unable to make bail, he might well choose to plead guilty just to get out.    With each day behind bars, the prosecutor's offer – plead guilty and we'll let you go for time already served – becomes increasingly tempting.

    An innocent person of moderate means – who earns a little too much to qualify for free legal representation – may decide it's cheaper to plead guilty and pay the fine than it would be to hire a lawyer.  That choice can seem particularly attractive because paying a lawyer is no guarantee of acquittal, and besides that, it prolongs the unpleasantness of being a defendant in court.

    People make those choices but that's not what I'm talking about when I say "false confession."  I'm talking about confessions resulting from intense psychological manipulation. 

   Decades ago, interrogators left marks.  They called it the "Third Degree."

    In 1973, I was a law clerk for a judge in Michigan and got to watch the proceedings in his court. One time, the cops brought in a kid not that much younger than I was.  You could tell he'd been beaten.  The judge, I'm proud to say, dismissed the charges.

    Today, police interrogators know how to rough the person up psychologically.  No visible marks!

Coercion Honed to a Science

    Often, they use the so–called "Reid Technique."  It entails relentless interrogation, carefully designed and structured.  

    The questioner insists the suspect is guilty no matter how many time he denies it.  The interrogator just won't take "I'm innocent" for an answer.

    The interrogator lies to the suspect, telling him that others already have confessed and are pointing the finger at him.    The cop makes a promise of leniency, or implies that if the person will just confess, this hell will stop and he can go home.

   After hours of grilling, the false confession seems to be the easy way out.  Of course, it's anything but.

    Sometimes, the person even believes what he's confessing.   (When that happens, researchers call it a "persuaded false confession.")

   In one case, interrogators even convinced a deputy sheriff  that his subconscious mind had repressed the memories of what he supposedly had done.  These were very serious offenses - molesting his daughters and killing babies during satanic rituals - but he confessed.

   Studies have shown that people with disabilities and those under 18 are particularly vulnerable to intense psychological tactics.  If the Illinois legislation becomes law, it will be a good start.

    Last month, this blog reported that the prosecuting attorney in Kansas City, Missouri, was trying to free a man, Kevin Strickland, who'd been in prison 42 years for murders he didn't commit.  Jointly with attorneys from the Midwest Innocence Project and volunteer lawyers from a large firm, she petitioned the Missouri Supreme Court on Strickland's behalf.

    However, on June 2, the court declined to consider the petition.   The prosecutor isn't giving up.  If the governor signs a bill recently passed by the Missouri legislature, she will be able to ask a trial–level court to find that Strickland is innocent.

    Read more about it here.

Banner:  Screenshot of FBI video of interrogation of Ariel Castro, who confessed to kidnappings, rapes and murders.  (Source:  FBI via Wikimedia Commons.)  Nothing suggests that Castro gave a false confession.  He later committed suicide in prison.