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QUALIFIED IMMUNITY — Colorado Does A Thing

On Friday, Colorado passed what has been called “an enormous police reform bill”. It was signed into law by a masked Governor Polis before a very restricted audience. As he did so he made the de rigueur though totally irrelevant comments about ending racial profiling and disparate treatment, but he can be forgiven for that.

Qualified immunity has been in the news much of late; if you want to learn something about its history, check out this short video. Qualified immunity is an offshoot of vicarious liability, which is in turn an offshoot of strict liability. The case law was developed in England from legislation enacted during the industrial revolution. If you work in a factory or any business that uses potentially dangerous machinery, you will notice there are safety features built into the machines, and sundry health and safety regulations. In the early days, these safety precautions were often non-existent, which could result in workers suffering horrific injuries or death, so factory owners were deemed to be liable, period.

Vicarious liability extended this so that a factory or business owner was liable for the torts of his servants. This includes hospitals. Claims for medical negligence can run into the millions or even tens of millions, as can be seen by this report from the UK. Any surgeon who could afford to pay out such compensation would probably not be working as a surgeon.

When police officers overstep the mark, their employers are held vicariously liable. The notorious Rodney King case saw the victim awarded $3.8 million damages in addition to legal fees. There, as ever, it was the state – the City of Los Angeles – that picked up the tab. King’s assailants were also tried for the outrageous assault, and were shamefully acquitted. The idea they could have been given qualified immunity in that case was too outrageous to entertain, but there have been many others in which quite vicious assaults on citizens or other violations of their rights have been rubber stamped as unfortunate but tough luck, sucker.

Making police criminally liable in a personal capacity – and therefore liable in tort as well – is not being universally welcomed. It may indeed lead to them “pulling back” at times, but that is a price most citizens seem willing to pay. But simply stripping them of qualified immunity is not enough, rather the vicarious liability for their torts should be shifted from their employers onto the police unions and pension funds. Only when the police are hit in their wallets will their behaviour improve, and in future they won’t be so cavalier about arresting people and at times destroying their property.

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The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of The Duran.

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John Ellis
John Ellis
June 21, 2020

ORLANDO PROFESSOR
“Law enforcement hires people who are anti-black,
people who are less intelligent..”
Not so, for in every Western nation the 25% most intelligent in society are the rich ruling-class, the 25% intelligent middle-class function as slave-drivers and the uneducated laboring-class are killer-cop terrorized and enslaved as the 50% working-poor.
For if the poor were more intelligent than the police, in short order there would be all dead police.

John Ellis
John Ellis
June 21, 2020

Everyone enriching themselves upon the misery of those less educated or less white, that is qualified immunity.

Carlton Meyer
June 21, 2020

All government employees have basic civil immunity for the actions they take. If your government disability claim is denied, you can’t sue the guy who declined it. If you fail a driving test, you can’t sue the evaluator. If a cop writes you a ticket, you can’t sue him.  If this qualified immunity is eliminated for police, social justice lawyers will file lawsuits daily until all the police force quits. Nearly all suits will be frivolous but the cops will have to hire a lawyer and spend thousands of dollars and waste many hours to defend themselves. Obnoxious millionaires and… Read more »

Clarity
Clarity
June 21, 2020

The result of this will be more cases of the Blue Flu and fewer people getting into policing. We are seeing already what less policing is doing over there. People will come to regret it and surveys show that the majority of the population doesn’t even want this. Including democrats. Reforms, yes. Measures that will reduce the size or effectiveness of the police force, no. The problem is rooted much deeper. I agree that the top of that hierarchy should be liable, but they already are. The cost for all of the situations gone wrong to department and ultimately the… Read more »

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