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This brings up the whole issue of a judicially-invented doctrine gutting a law, and replacing it with the one the judiciary would have preferred existed. That said, §1983 is fundamentally insane and broken and should be re-drafted to deal with what we’re seeing unfold today. @ASFleischman/1269432383985549313Permalink On twitter.com
Mood -3 🙁
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For one, it’s worth noting that §1983 exists because states weren’t protecting basic civil rights circa 1871. Circa 2020, every state should have a functioning regime for holding its agents accountable to citizens they harm, criminally and civilly. States should not get a pass.Permalink On twitter.com
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§1983 is also merely a civil remedy. With the multi-year lunacy courts drag survivors/families through, you would think it was a private criminal prosecution. Nope, it’s just the taxpayers writing a check. It’s literally no disincentive at all to police or anyone else.Permalink On twitter.com
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If you want to read more about why 1983 fails even to do it’s stated job, the work of Clark Neily and Jay Schweikert on this is compelling. Basically, judges are reluctant to assign any kind of culpability to their putative co-workers. forbes.com/sites/georgeleef/2018/03/21/qualified-immunity-a-rootless-doctrine-the-court-should-jettison/Permalink On twitter.com
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But this is a policy thread, so here’s what I think we should do: Pass Amash’s bill taking an excellent stab (likely futile long-term with the bench we have) at limiting QI. Federally coordinate reporting of all police violence and any complaints/discipline for public review.Permalink On twitter.com
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Pass federal laws to check all the statutory arguments court have put out there to perpetuate what has become unqualified impunity. If a department has been shown to be a repeat offender,or is under federal supervision,multiply damages by 10 and compel mandatory SCOTUS appeals.Permalink On twitter.com
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But the real action is at home, in our states. Repeal police secrecy laws and Law Enforcement Bill of Rights laws. Eliminate police collective bargaining and prohibit elected officials from bargaining for the public with the people who paid to elect them.Permalink On twitter.com
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Create a private cause of criminal action for murder, rape, and assault against state officials where the DA won’t charge that carries triple the penalties of the normal one. In states where private prosecutions are prohibited, amend the Constitution.Permalink On twitter.com
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Create independent and elected oversight that doesn’t depend on police union goodwill do its job. Internal affairs, toothless oversight boards, IG’s, AG’s, and the whole deniable alphabet soup are structurally corrupted and have failed their basic ethical and legal duties.Permalink On twitter.com
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Only allow asset forfeiture after a valid criminal conviction and more clearly prohibit quotas. As long as police have a pecuniary interest in what they’re doing, the public can never trust them. Require electronic badges that broadcast badge and rank. No anonymous cops.Permalink On twitter.com
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Remove the presumption of truth in officer testimony unless body/dash cam footage is present and untampered with. Make it a felony to tamper with any accountability electronics, and compel judges/juries to draw a negative inference from the absence of such evidence.Permalink On twitter.com
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Unaccountable forces spend billions from the public fisc bribing the families of those they kill. At certain thresholds of successful suits or federal supervision, departments must survive a local referendum to disarm or disband. We’re not kidding about consent of the governed.Permalink On twitter.com
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The bad-faith government lawyers who brought you the OLC and the excesses of the Trump era will always find some doctrine or loophole to help their patrons. Only energetic and drastic action by the public and their electeds can slow the inevitable advance of this legal nihilism.On twitter.com