How to hold NYC cops accountable
Galvanized by the tragic killing of George Floyd and subsequent months of protests, the New York City Council held a hearing last week on a bill that would bypass one of the biggest obstacles to police accountability: “qualified immunity.” It should become law.
Crafted by the U.S. Supreme Court nearly 40 years ago, the principle of qualified immunity means that victims of police misconduct can only move forward with their lawsuits if they show that their rights were “clearly established” when they were violated.
Consider Shaniz West. Back in 2014, police in Caldwell, Idaho, asked Shaniz if they could “get inside” her home because they believed her ex-boyfriend (then a wanted fugitive) was inside. She agreed and handed them her keys. Police decided to call in a SWAT team to bombard her house with tear gas grenades. Her home was completely unlivable for months. To vindicate her Fourth Amendment rights, Shaniz sued the officers and the city.
Unfortunately for her, courts had never decided a case where police so egregiously exceeded a homeowner’s consent to “get inside.” Citing this “absence of a controlling precedent,” the U.S. Ninth Circuit Court of Appeals granted qualified immunity to police, thwarting her lawsuit. On behalf of Shaniz, the Institute for Justice (where I work) filed a petition with the Supreme Court, urging the justices to hear her case. Unfortunately, the high court denied that petition, along with a dozen other legal challenges to qualified immunity, last summer.
By requiring that rights be “clearly established,” the Supreme Court has created a challenging uphill battle for plaintiffs. An investigation by Reuters found that in recent years, federal appellate courts granted qualified immunity to law enforcement in 57% of excessive force cases. Yet even when courts reject qualified immunity, that only means that a plaintiff’s case may advance; they can ultimately still lose on the merits.
As a federal doctrine, qualified immunity can only be completely abolished by either the Supreme Court or Congress. But there’s a third option: robust local reform. Sponsored by Stephen Levin and Helen Rosenthal, the new Council legislation would create a “right of security against unreasonable search and seizure” (similar to the Fourth Amendment) in New York City and provide for a new “civil action” that would let individuals sue law enforcement officers who violated their rights. In other words, New York City would create an alternative to hold rogue agents accountable. Today, at least 20 states (including New York) have enacted some type of cause of action to remedy constitutional violations.
Unfortunately, state courts in New York and elsewhere have largely imported qualified immunity from the federal judiciary, thwarting the ability of victims to hold law enforcement accountable. To circumvent this barrier to justice, the City Council’s bill would smartly “prevent the use of the doctrine of qualified immunity” as a potential defense. That means that officers could no longer hide behind the “clearly established” standard to escape civil rights lawsuits.
This type of innovative reform is quickly becoming popular, both with policymakers and the public at large. Just last summer, Colorado became the first state to pass legislation that blocks qualified immunity as a defense to state constitutional claims. Similar bills are also under consideration in Albany and at least a dozen other state legislatures. Nationwide, one poll conducted by the Cato Institute and YouGov found that nearly two-thirds of Americans support eliminating qualified immunity.
Defenders of qualified immunity claim that reform would unleash a torrent of costly litigation. But the cost of protecting someone’s constitutional rights involves values very different from the typical line-item in a budget. Any rise in costs (should it even occur) would merely reflect the heavy price already borne by the victims of rogue government agents.
Fears that officers could go bankrupt are also unfounded. First, municipalities and law enforcement agencies almost always foot the bill for civil rights cases. A nationwide survey of police indemnification practices by UCLA Law Prof. Joanna Schwartz found that “New York City Police Department officers were required to contribute to just .49% of the civil rights cases in which plaintiffs received payment,” with the median officer payment a mere $2,125. In fact, indemnification is so common, “an officer employed by the NYPD has a 1 in 308 chance of contributing to a settlement during a twenty-year career.”
Moreover, agencies and municipalities could readily avoid taking a financial hit by preventing and deterring the misconduct that would trigger the liability in the first place. Vicarious liability would act as a powerful incentive for good governance. Indeed, fretting over costs is a tacit and rather telling admission that constitutional rights are routinely violated by law enforcement.
Fix qualified immunity in New York City, and start recalibrating a skewed balance of power.
An off-duty FDNY firefighter died following a snowmobile crash in upstate New York, officials said Friday.
Firefighter Carmine Barresi, 35, was operating a snowmobile on the southern end of Lake George about 4 p.m. on Thursday when he struck a dock and was thrown into the water and through a layer of ice.
First responders found Barresi submerged under 10 to 15 feet of water near the dock and pulled him to shore, officials said. He was in the water for about 30 minutes before he was taken to safety. He later died at Glens Falls Hospital.
Barresi was on vacation with friends when the crash occurred. The crash happened about 200 miles north of New York City.
The Bronx resident joined the FDNY in 2017 and was assigned to Engine Company 64 on Castlehill Ave. in Unionport.
“This is a terrible loss for the FDNY family,” FDNY Fire Commissioner Daniel Nigro said in a statement. “Carmine bravely served the residents of the Bronx as a member of Engine Company 64, fighting fires and providing emergency medical care. Our thoughts are with his family and the members of his company.”
The Warren County Sheriff’s office was investigating the crash.
It’s time to separate fact from fiction, lest our fears take over. The ever-changing Moon’s trine to rebellious Uranus can help us make changes that last inwardly, but we still must steer ourselves toward positive character development. The Full Moon in Virgo at 3 :1 7 a.m. EST supports this quest and shows us what has broken down in our life to make space for a better self. Our fears can keep us from moving forward, but if the old way is unsatisfactory, change is inevitable.
ARIES MARCH 2 1 -APRIL 1 9
Simply waiting for the winds to blow you to where you’re supposed to be will not take you to your destination instead, an inner change must be made, and with purpose. Grab hold of opportunities, and commit to routinely building yourself up until your confidence returns.
TAURUS APRIL 2 0 -MAY 2 0
Situations that were once so familiar and inviting now feel foreign and uncomfortable.
This is a sign that you are outgrowing your old life, and the changes that you have made in order to cultivate your new life are having a ripple effect. We all start out somewhere, but we don’t have to end up there.
GEMINI MAY 2 1 -JUNE 2 0
Emotions are running high today as the ways in which you’ve sacrificed for your family and your career begin to come to fruition. Channel any intense feelings into exercise or creative works so that you’ll be able to enjoy the fruits of all your labor without restlessness.
CANCER JUNE 2 1 -JULY 2 2
Someone who hurt you in the past may come back to try to retrieve your favor. There are people who are no longer in your life because you were no longer tolerating disrespect. They’re claiming to be different people, but this doesn’t mean you have to let them back into your life.
LEO JULY 2 3 -AUG. 2 2
Financially, things are looking up, but emotionally, prepare for a hazy ride. Daydreams or obsessions could get in the way of your progress. You may suddenly spend hours lost in thought as the day passes. It’s okay to have your head in the clouds sometimes, but don’t get stuck there.
VIRGO AUG. 2 3 -SEPT. 2 2
You have a tendency to lose yourself in other people today, but knowing your sense of self is one of your greatest assets and will serve you well. While there’s nothing wrong with being inspired by someone you admire, make sure that you’re doing it from a place of authenticity and adding your own unique style.
LIBRA SEPT. 2 3 -OCT. 2 2
Write down your dreams, and see if you can interpret what your subconscious is trying to show you. You may come to realize you’ve been ignoring red flags with a friend or partner or avoiding important paperwork. Now is the time to eliminate these destructive actions and procrastinate no longer.
SCORPIO OCT 2 3 -NOV. 2 1
When someone close to you approaches you with a confession or a secret, handle it gently. The information could be unsettling or it could be exciting, but it will certainly be unexpected. Acknowledge the bravery that it took for them to tell you this. Kindness matters.
SAGITTARIUS NOV. 2 2 -DEC. 2 1
People are especially focused on you today, and what you’ve been up to lately is at the center of attention. If you’ve been putting in the hours and working hard, you’re likely to receive some recognition. However, if you’ve been running away from your responsibilities, they may be back to haunt you.
CAPRICORN DEC. 2 2 -JAN. 1 9
The energy today feels much like being at the precipice of a great mountain, and you’re standing so close to the top. Don’t let the fears of others hold you back from a learning opportunity that will help you to achieve your dreams. Let their fears pass by you without attaching to them.
AQUARIUS JAN. 2 0 -FEB. 1 8
We’re always meant to be growing rather than stagnating as the person we were years ago. Letting go of past places that felt like home and people you saw every day is a natural part of life. Once you’ve said goodbye, fill the space with something that will nourish your mind and soul.
PISCES FEB. 1 9 -MARCH 2 0
Confusing situations between you and another person arise, but this is because there’s something you need to talk about. It’s likely that you’re hesitant about speaking up, but if you think you might regret not saying it, then say it. It’s speak now or forever hold your peace, so you will want to be honest with the people around you.