The Supreme Court loves qualified immunity.
February 22, 2023 8:33 PM Subscribe
In 2016 Anthony Novak decided to create a Parma, Ohio Police Department parody page on Facebook.
They tracked him down and jailed him for four days.
The alleged crime was the "use of a computer to disrupt, interrupt, or impair police services.”
He was acquitted at trial.
Novak sued, and the district court eventually granted the officers qualified immunity.
The Supreme Court refused to hear his appeal.
More:
NBC News: Supreme Court rejects Ohio man’s bid to sue police over arrest for Facebook parody.
Forbes: Not The Onion: Supreme Court Lets Police Get Away With Jailing Man Who Made Fun Of Them On Facebook
Law & Crime: Supreme Court OK’s qualified immunity for cops who arrested man for making fun of police on Facebook
Wikipedia: Novak v. City of Parma
"The Onion Files Hilarious Amicus Brief In An Important Case, And Actually Makes A Key Point In The Best Way Possible"
More:
NBC News: Supreme Court rejects Ohio man’s bid to sue police over arrest for Facebook parody.
Forbes: Not The Onion: Supreme Court Lets Police Get Away With Jailing Man Who Made Fun Of Them On Facebook
Law & Crime: Supreme Court OK’s qualified immunity for cops who arrested man for making fun of police on Facebook
Wikipedia: Novak v. City of Parma
"The Onion Files Hilarious Amicus Brief In An Important Case, And Actually Makes A Key Point In The Best Way Possible"
Qualified immunity is the cop/government version of the corporate veil shielding bad actors from the consequences of illegal actions. Accountability and justice demand that nobody in any position ever should be immune from prosecution or civil liability for intentional malfeasance.
posted by tclark at 8:51 PM on February 22, 2023 [49 favorites]
posted by tclark at 8:51 PM on February 22, 2023 [49 favorites]
Cases like this certainly make a strong argument for term limits rather than lifelong appointments. Retroactively applied as far as I am concerned.
posted by y2karl at 9:09 PM on February 22, 2023 [15 favorites]
posted by y2karl at 9:09 PM on February 22, 2023 [15 favorites]
Honestly, if the court had heard it, I wouldn’t put it past them to have ruled in the cops’ favor, further enshrining the political power of police as a branch of government unto itself, and a particularly unaccountable one.
Past precedent for any of the justices is not as compelling an argument as the fact that all six conservatives were put on the court for the same purpose: to consolidate power.
posted by Jon_Evil at 9:39 PM on February 22, 2023 [29 favorites]
Past precedent for any of the justices is not as compelling an argument as the fact that all six conservatives were put on the court for the same purpose: to consolidate power.
posted by Jon_Evil at 9:39 PM on February 22, 2023 [29 favorites]
About the most exposure I have to the law is a subscription to the Amicus podcast and the occasional LegalEagle Youtube recommendation. My understanding is that one of the predictors of writ of certiorari is a circuit court split. I see a mention of Sixth Circuit where the case was heard but not much in the way of other circuits. Is there a clear split?
posted by pwnguin at 10:29 PM on February 22, 2023
posted by pwnguin at 10:29 PM on February 22, 2023
My understanding is that one of the predictors of writ of certiorari is a circuit court split.
That is traditionally one of the reasons SCOTUS might grant cert. But it is not required, and as we have seen in the last few years, SCOTUS might grant cert for any reason--or none at all.
Generally one is not supposed to infer a legal determination from a refusal of cert; in this instance most people will, and I believe, rightly so. It is the opinion of the majority of this Court that the lower court was in the right, and the police were correct to arrest the parodist.
posted by suelac at 11:19 PM on February 22, 2023 [5 favorites]
That is traditionally one of the reasons SCOTUS might grant cert. But it is not required, and as we have seen in the last few years, SCOTUS might grant cert for any reason--or none at all.
Generally one is not supposed to infer a legal determination from a refusal of cert; in this instance most people will, and I believe, rightly so. It is the opinion of the majority of this Court that the lower court was in the right, and the police were correct to arrest the parodist.
posted by suelac at 11:19 PM on February 22, 2023 [5 favorites]
This case was on the most recent episode of the podcast Criminal: Novak v. City of Parma.
posted by amf at 11:59 PM on February 22, 2023 [5 favorites]
posted by amf at 11:59 PM on February 22, 2023 [5 favorites]
ISTFG we need a branch of the FBI that exists purely to do things to judges and their families that those judges have directly or indirectly ruled is permissible.
posted by GCU Sweet and Full of Grace at 3:17 AM on February 23, 2023 [18 favorites]
posted by GCU Sweet and Full of Grace at 3:17 AM on February 23, 2023 [18 favorites]
Extreme Court disagrees that ACAB, hates being laughed at too!
posted by nofundy at 3:39 AM on February 23, 2023 [3 favorites]
posted by nofundy at 3:39 AM on February 23, 2023 [3 favorites]
Weird how none of the New York Times columnists who are so concerned about the free speech implications of people facing criticism for their ideas on campus have written about this. I’m starting to suspect they may not actually care about free speech.
posted by adamsc at 4:44 AM on February 23, 2023 [78 favorites]
posted by adamsc at 4:44 AM on February 23, 2023 [78 favorites]
I have long believed that as power increases so should accountability, but the powerful disagree, and they get to make the rules.
posted by Pater Aletheias at 4:45 AM on February 23, 2023 [9 favorites]
posted by Pater Aletheias at 4:45 AM on February 23, 2023 [9 favorites]
Well naturally. Judges are absolutely immune. Even if they acted maliciously and out of bad faith they can't be touched, no matter what.
And then the same judges fret about the "possibility" that the Court's reputation will be tarnished. It's already rusted to dust kids.
posted by 1adam12 at 4:50 AM on February 23, 2023 [6 favorites]
And then the same judges fret about the "possibility" that the Court's reputation will be tarnished. It's already rusted to dust kids.
posted by 1adam12 at 4:50 AM on February 23, 2023 [6 favorites]
One of the more disgusting aspects of the Court's action/inaction is that this case pits the made-up doctrine of so-called "qualified immunity" against a clear violation of Novak's First Amendment rights, which actually are explicitly granted by the Constitution.
SCOTUS isn't just siding with the cops, again; they're saying cops can violate expressly stated Constitutional rights, and citizens have no recourse. (Despite the right to "petition the Government for a redress of grievances" also being enshrined in the First Amendment.)
That doctrine cannot stand.
posted by Gelatin at 5:04 AM on February 23, 2023 [52 favorites]
SCOTUS isn't just siding with the cops, again; they're saying cops can violate expressly stated Constitutional rights, and citizens have no recourse. (Despite the right to "petition the Government for a redress of grievances" also being enshrined in the First Amendment.)
That doctrine cannot stand.
posted by Gelatin at 5:04 AM on February 23, 2023 [52 favorites]
My impression is that there is no justice on either side of the US Supreme Court who has objected to any qualified immunity ruling in the recent past, and the same thing happened this time, too. Some lower courts have pushed back against it, but they've been steamrolled by everybody on the Supreme Court every time.
I'd be happy to learn that I'm wrong about this from someone who has more knowledge.
It seems like the doctrine is a way of freezing the list of rights. No right is recognized under the doctrine unless an almost-identical situation in the past resulted in a precedent establishing the right. Am I reading that wrong, or does that basically prevent new precedents from being established? It seems like there's a date after which Americans have gained no new rights vis-à-vis the police, and the rights they were granted in the past have been narrowed so much as to be basically meaningless.
posted by clawsoon at 5:31 AM on February 23, 2023 [5 favorites]
I'd be happy to learn that I'm wrong about this from someone who has more knowledge.
It seems like the doctrine is a way of freezing the list of rights. No right is recognized under the doctrine unless an almost-identical situation in the past resulted in a precedent establishing the right. Am I reading that wrong, or does that basically prevent new precedents from being established? It seems like there's a date after which Americans have gained no new rights vis-à-vis the police, and the rights they were granted in the past have been narrowed so much as to be basically meaningless.
posted by clawsoon at 5:31 AM on February 23, 2023 [5 favorites]
I hope The Onion has been working on a response.
posted by clawsoon at 5:37 AM on February 23, 2023 [3 favorites]
posted by clawsoon at 5:37 AM on February 23, 2023 [3 favorites]
Is qualified immunity [or some similar] common practice in other places?
Obviously there are places where law in general has more of a local maxima feel to it, but in places that claim to be law abiding are law enforcement similarly immune?
posted by Reasonably Everything Happens at 5:37 AM on February 23, 2023
Obviously there are places where law in general has more of a local maxima feel to it, but in places that claim to be law abiding are law enforcement similarly immune?
posted by Reasonably Everything Happens at 5:37 AM on February 23, 2023
Unfortunate, but unsurprising. Judges are fancy dress cops. Supreme judges, supremely so.
posted by rodlymight at 5:51 AM on February 23, 2023 [5 favorites]
posted by rodlymight at 5:51 AM on February 23, 2023 [5 favorites]
Is qualified immunity [or some similar] common practice in other places?
My impression - which could be wrong - is that it's common, and the point is to protect government officials and professionals who are making reasonable decisions within a reasonable range of options.
The "qualified" rather than "absolute" part is supposed to mean that it doesn't protect officials and professionals who are making egregiously stupid or malicious decisions. That qualification, though, seems to be getting thinner and thinner for American police. In this specific case, many reasonable people would agree that the police acted stupidly and maliciously, but the Supreme Court didn't think it was even worth discussion.
I'm no legal expert, though, so I hope someone will come along to comment who is.
posted by clawsoon at 6:05 AM on February 23, 2023 [8 favorites]
My impression - which could be wrong - is that it's common, and the point is to protect government officials and professionals who are making reasonable decisions within a reasonable range of options.
The "qualified" rather than "absolute" part is supposed to mean that it doesn't protect officials and professionals who are making egregiously stupid or malicious decisions. That qualification, though, seems to be getting thinner and thinner for American police. In this specific case, many reasonable people would agree that the police acted stupidly and maliciously, but the Supreme Court didn't think it was even worth discussion.
I'm no legal expert, though, so I hope someone will come along to comment who is.
posted by clawsoon at 6:05 AM on February 23, 2023 [8 favorites]
Extremely disappointing but not too surprising. Qualified immunity in the US was originally created by the Supreme Court, and by a more liberal court than we have now.
It’s worth noting that because it’s “just” a judicial doctrine, legislators can override this if they choose to. Colorado removed it in 2021 (at the state level), and there have been national bills proposed in Congress (but not voted on afaict).
posted by learning from frequent failure at 6:37 AM on February 23, 2023 [13 favorites]
It’s worth noting that because it’s “just” a judicial doctrine, legislators can override this if they choose to. Colorado removed it in 2021 (at the state level), and there have been national bills proposed in Congress (but not voted on afaict).
posted by learning from frequent failure at 6:37 AM on February 23, 2023 [13 favorites]
Who do you go to when a "co-equal" branch of government acts as a SuperLegislature dictating policy to the nation, won't follow its own precedents applied to such policy making in the executive, is beholden to no one, and the only functioning check on their power is paralyzed by reactionaries?
posted by Slackermagee at 6:44 AM on February 23, 2023 [6 favorites]
posted by Slackermagee at 6:44 AM on February 23, 2023 [6 favorites]
Slackermagee, I disagree with your assertion that the Judicial branch is acting as an unchecked SuperLegislature, because, as learning from frequent failure wrote, the Legislative branch could change this, but they won't because they like this ruling. And of course the Executive branch enjoys the protections of qualified immunity. The checks are there, but the other two branches said, "Looks good to us."
posted by Dez at 7:20 AM on February 23, 2023
posted by Dez at 7:20 AM on February 23, 2023
Yeah this specific problem is not that the judicial branch is out of control it’s that they are declining from reining in an out of control executive branch.
posted by aubilenon at 7:32 AM on February 23, 2023
posted by aubilenon at 7:32 AM on February 23, 2023
Qualified immunity is a license to kill. While some local courts have been willing to prosecute cops for killing, this message from the highest court could easily put an end to that.
posted by tommasz at 7:37 AM on February 23, 2023 [4 favorites]
posted by tommasz at 7:37 AM on February 23, 2023 [4 favorites]
There are things called "qualified immunity" in other countries in the common law tradition, just as there was in the US before 1967, but IMO it's a bit of a stretch to say that that's actually the same thing as the "qualified immunity" doctrine that SCOTUS has developed since 1967.
It's not really the "immunity" part, but the "clearly established law" part, that sets this doctrine apart. None of these doctrines are especially great, but there's a world of difference between e.g. "you're immune as long as you act in good faith" and "you're immune even if you act in bad faith, as long as you don't violate a specific already-existing precedent."
posted by Not A Thing at 7:39 AM on February 23, 2023 [9 favorites]
It's not really the "immunity" part, but the "clearly established law" part, that sets this doctrine apart. None of these doctrines are especially great, but there's a world of difference between e.g. "you're immune as long as you act in good faith" and "you're immune even if you act in bad faith, as long as you don't violate a specific already-existing precedent."
posted by Not A Thing at 7:39 AM on February 23, 2023 [9 favorites]
Yeah this specific problem is not that the judicial branch is out of control it’s that they are declining from reining in an out of control executive branch.
It's not even an executive branch. I fear that many cities are struggling to keep civilian control of their police departments. Some of them may already be too far gone and have civilian control in name only.
posted by Your Childhood Pet Rock at 8:01 AM on February 23, 2023 [10 favorites]
It's not even an executive branch. I fear that many cities are struggling to keep civilian control of their police departments. Some of them may already be too far gone and have civilian control in name only.
posted by Your Childhood Pet Rock at 8:01 AM on February 23, 2023 [10 favorites]
Despite the right to "petition the Government for a redress of grievances" also being enshrined in the First Amendment
That right wasn't violated. They DID petition the government. The government just said "No"
posted by Dr. Twist at 8:22 AM on February 23, 2023 [3 favorites]
That right wasn't violated. They DID petition the government. The government just said "No"
posted by Dr. Twist at 8:22 AM on February 23, 2023 [3 favorites]
The Onion brief is absolutely the most infuriating thing I have read in some time. Just a cold rage that this is where things stand in 2023. I remember reading Tempered Radicals with it's totally reasonable, you know, maximally moderate, just the easiest liberal pablum and thinking that was a realistic path of progress.
If it's ethical to wipe out Isis training camps maybe it's ethical to drone strike law schools. Probably about as effective as stopping this fundamentalist legal movement, but it would have the benefit of making them scared of clear skies.
(is this even a parody of contemporary power relations in modern western society?)
posted by zenon at 8:41 AM on February 23, 2023 [4 favorites]
If it's ethical to wipe out Isis training camps maybe it's ethical to drone strike law schools. Probably about as effective as stopping this fundamentalist legal movement, but it would have the benefit of making them scared of clear skies.
(is this even a parody of contemporary power relations in modern western society?)
posted by zenon at 8:41 AM on February 23, 2023 [4 favorites]
I don't think metafilter is the right platform to talk about drone-striking law schools.
Metafilter loves justice, and hates that the American justice system is used by people with high power to perpetrate injustice on people with low power.
But the way we pursue this is through just, positive, creative action. Not suggestions of radical actions against figureheads, institutions, or groups of humans we categorize as "part of the problem".
posted by rebent at 8:58 AM on February 23, 2023 [5 favorites]
Metafilter loves justice, and hates that the American justice system is used by people with high power to perpetrate injustice on people with low power.
But the way we pursue this is through just, positive, creative action. Not suggestions of radical actions against figureheads, institutions, or groups of humans we categorize as "part of the problem".
posted by rebent at 8:58 AM on February 23, 2023 [5 favorites]
And then the same judges fret about the "possibility" that the Court's reputation will be tarnished. It's already rusted to dust kids.
I seriously doubt anyone on the Court is seriously concerned about the institution's reputation. To me it looks like thinly veiled lip service to reassure the public that the Court has America's best interests at heart.
posted by slogger at 8:59 AM on February 23, 2023 [3 favorites]
I seriously doubt anyone on the Court is seriously concerned about the institution's reputation. To me it looks like thinly veiled lip service to reassure the public that the Court has America's best interests at heart.
posted by slogger at 8:59 AM on February 23, 2023 [3 favorites]
Has anyone ever tried putting flowers in the barrels of police guns? That sounds nicely symbolic and radical
posted by Jacen at 9:00 AM on February 23, 2023 [5 favorites]
posted by Jacen at 9:00 AM on February 23, 2023 [5 favorites]
I seriously doubt anyone on the Court is seriously concerned about the institution's reputation.
I disagree. John Roberts knows that the legitimacy of the Supreme Court exists only inasmuch as people perceive it does. Even the doctrine of judicial review is nowhere to be found in the Constitution. And the Court has no enforcement power at all, depending instead on others to defer to it.
Which is why Roberts would prefer to strip Americans' fundamental rights gradually and deceptively, rather than obviously. In this case, though, he knows the Republicans' fetishization of police and scare tactics about crime are effective, so the public will allow him to take away their First amendment rights without even awareness they're doing so.
posted by Gelatin at 9:06 AM on February 23, 2023 [7 favorites]
I disagree. John Roberts knows that the legitimacy of the Supreme Court exists only inasmuch as people perceive it does. Even the doctrine of judicial review is nowhere to be found in the Constitution. And the Court has no enforcement power at all, depending instead on others to defer to it.
Which is why Roberts would prefer to strip Americans' fundamental rights gradually and deceptively, rather than obviously. In this case, though, he knows the Republicans' fetishization of police and scare tactics about crime are effective, so the public will allow him to take away their First amendment rights without even awareness they're doing so.
posted by Gelatin at 9:06 AM on February 23, 2023 [7 favorites]
and at the same time, the court is likely about to continue protecting companies like fb from the actions of their users. pretty grim!
posted by AlbertCalavicci at 9:30 AM on February 23, 2023
posted by AlbertCalavicci at 9:30 AM on February 23, 2023
rebent: the whole point of that Tempered Radicals bit is that you can be an "agent of change" from within the system. It is totally accelerationsist talk to even bring up drone strikes, and I appreciate your calm and sensible rejection of it.
posted by zenon at 10:16 AM on February 23, 2023
posted by zenon at 10:16 AM on February 23, 2023
Slackermagee, I disagree with your assertion that the Judicial branch is acting as an unchecked SuperLegislature, because, as learning from frequent failure wrote, the Legislative branch could change this, but they won't because they like this ruling. And of course the Executive branch enjoys the protections of qualified immunity. The checks are there, but the other two branches said, "Looks good to us."
We JUST had a case where an executive agency was previously empowered by Congress to take drastic actions during times of emergency and SCOTUS said, "Nah, you need something specific to THIS emergency."
But SCOTUS rolling out policy decisions like Qualified Immunity doesn't even have to square that with the previous precedent or their own goddamn doctrines because they don't have to, because no one will ever make them. Biden's never going to do something as radical as proroguing justices failing to meet the Good Behavior requirement and Congress is broken they couldn't convict a man who tried to have a large number of them hanged.
And Congress is probably broken forever because of SCOTUS meddling in the VRA!
It's just incredible. There's no check or balance, and while yeah there could be... But it's not that way, it's the other way.
posted by Slackermagee at 10:40 AM on February 23, 2023 [11 favorites]
We JUST had a case where an executive agency was previously empowered by Congress to take drastic actions during times of emergency and SCOTUS said, "Nah, you need something specific to THIS emergency."
But SCOTUS rolling out policy decisions like Qualified Immunity doesn't even have to square that with the previous precedent or their own goddamn doctrines because they don't have to, because no one will ever make them. Biden's never going to do something as radical as proroguing justices failing to meet the Good Behavior requirement and Congress is broken they couldn't convict a man who tried to have a large number of them hanged.
And Congress is probably broken forever because of SCOTUS meddling in the VRA!
It's just incredible. There's no check or balance, and while yeah there could be... But it's not that way, it's the other way.
posted by Slackermagee at 10:40 AM on February 23, 2023 [11 favorites]
Tell me you're a police state without telling me you're a police state.
posted by SonInLawOfSam at 3:43 PM on February 23, 2023 [3 favorites]
posted by SonInLawOfSam at 3:43 PM on February 23, 2023 [3 favorites]
None of these doctrines are especially great, but there's a world of difference between e.g. "you're immune as long as you act in good faith" and "you're immune even if you act in bad faith, as long as you don't violate a specific already-existing precedent."
Especially because then courts, in granting immunity because no court had previously established that the practice is bad, habitually skip over the part of the analysis where THEY THEMSELVES ESTABLISH THAT THE PRACTICE IS BAD so that at least immunity will be foreclosed in similar cases in the future. Instead, we're stuck in this awful stasis where the things that constitute clearly established violations are preserved in amber from some undefined earlier era, and nothing new can be added to the rolls, no matter how heinous, because no court has concluded the thing that they're ruling on is a clearly established violation, even though the court making that determination has the innate power to do so itself and is simply declining to exercise that power for no particular reason.
It's absurd.
posted by Gadarene at 4:10 PM on February 23, 2023 [11 favorites]
Especially because then courts, in granting immunity because no court had previously established that the practice is bad, habitually skip over the part of the analysis where THEY THEMSELVES ESTABLISH THAT THE PRACTICE IS BAD so that at least immunity will be foreclosed in similar cases in the future. Instead, we're stuck in this awful stasis where the things that constitute clearly established violations are preserved in amber from some undefined earlier era, and nothing new can be added to the rolls, no matter how heinous, because no court has concluded the thing that they're ruling on is a clearly established violation, even though the court making that determination has the innate power to do so itself and is simply declining to exercise that power for no particular reason.
It's absurd.
posted by Gadarene at 4:10 PM on February 23, 2023 [11 favorites]
Yeah, thank you for the reminder that SCOTUS took our voting rights away.
They not only unilaterally declared racism over in 2013, they actively intervened in lower courts decisions to redraw districts after 2020.
Steve Scalise has no legitimacy.
posted by eustatic at 7:46 PM on February 23, 2023 [3 favorites]
They not only unilaterally declared racism over in 2013, they actively intervened in lower courts decisions to redraw districts after 2020.
Steve Scalise has no legitimacy.
posted by eustatic at 7:46 PM on February 23, 2023 [3 favorites]
clawsoon: I hope The Onion has been working on a response.
I'm joining up to Onion Freelance Law Enforcement soon as it's announced. It seems to be the reasonably expected thing to do.
posted by k3ninho at 8:33 AM on February 25, 2023
I'm joining up to Onion Freelance Law Enforcement soon as it's announced. It seems to be the reasonably expected thing to do.
posted by k3ninho at 8:33 AM on February 25, 2023
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