Law Talking Guy Talks Law: Should Cops Know they Can’t Just Steal Shit?

Disclaimer: I may or may not be a professional law talking guy, I’m not your law talking guy though and you wouldn’t want me anyway.

The doctrine of qualified immunity (QI) means that government officials (meaning cops) can’t be sued for things they do unless the things they do are clearly illegal. In practice this means that it’s impossible to sue cops unless a court somewhere ruled on that the exact same situation. It’s a “get one crime free” policy for police forces.

Like most things with “docterine” in their name, QI was created by a court case. Specifically Harlow v. Fitzgerald which set the key part of the test as the official must have violated “clearly established statutory or constitutional rights of which reasonable person would have known”. This is where things get sticky. And by sticky, I mean bullshit.

What actually happens is the court looks to see if the exact same fact pattern has been ruled on in the relevant jurisdiction, and then pretends that “reasonable persons” are both morons and legal scholars. For a recent example, Taylor v. Stevens found that cops couldn’t have known it wasn’t ok to keep a prisoner in a room filled with human waste for a week because the previous cases only covered longer periods of time. Because you see, a reasonable person wouldn’t know that it’s not ok to lock someone in a room full of human waste because it’s not clearly bad on its face and said reasonable person would have read the case law and distinguished it from prior cases.

QI is an interesting area where the libertarian right and the social justice left find themselves on the same side and often work together. It’s non-partisan, and the fact patterns are often clearly gross enough that the outcome should be obvious. So people were feeling like there was a reasonable chance that some recent cases would be able to make positive changes.

But it’s 2020, so we all know how that worked out.

One of the headline cases, Jessop v Fresno, involved the police executing a search warrant on suspicion of gambling related crimes. During the raid they seized $100,000 in cash and $175,000 in rare coins. Somehow only $50,000 of the cash and none of the coins made it onto the list of seized property. So what happened to the rest? According to Jessop the cops stole it. According to the court, who gives a shit QI applies case dismissed. How could cops have known that it’s not ok to just steal shit?

And of course, the Supreme Court declined to take the case so the cops are free to just steal shit.

But at least it’s now clearly established, so they’ve used their get out of crime free pass right?

Hahahaahahaha, no.

Because you see, this case was decided on the issue of whether or not said right was clearly established. As a result the court never grappled with the issue of whether or not the actions actually violated said right. Which means that the issue of whether or not cops can just steal shit is STILL not clearly established.

Chalk this up as another win for the idea that 2020 remains the worst year ever.