Sunday, March 3, 2024
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Sunday, March 3, 2024

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Why The Reckless Move to Abolish Qualified Immunity is Dangerous

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It’s “defund the police 2.0.” While we’re at it, let’s remove absolute immunity for legislators, judges and district attorneys who actually have time to think through decisions. 

Qualified Immunity Pros and Cons

Last week, Democrats re-introduced the George Floyd Justice In Policing Act of 2020, named after a man who died, as shocking as the video was, with a lethal amount of drugs in his system, a severe heart condition, had COVID and was fighting with police after committing a crime.

This led to a summer of violence, destruction, looting, assault, and murder. Progressives used this carefully concocted lie to convince Americans that police must be defunded. However, the “defund the police” narrative has failed; that’s proved by what is happening in Minneapolis where violent crime has spiked.

So leave it to the left to try something new to weaken law enforcement by eliminating qualified immunity, or “defund the police 2.0.”

Homicides and violent crimes are rising at shocking rates in Milwaukee and many other large cities. More than ever, qualified immunity is imperative to allow police to do their jobs without fear of baseless legal actions that could ruin their reputations, careers and financial well-being.

Removing qualified immunity will expose police officers to frivolous lawsuits, in which judges and juries could second-guess split-second decisions made by officers in good faith with a Monday morning quarterback perspective which will lead to significant financial exposure to the individual officers (or cities, if they give officer’s liability protection).

It is unreasonable to expect officers to be legal scholars and think through legal arguments when attempting to take immediate action. We don’t ask this of other officials, including prosecutors and legislators, who are allowed to make discretionary decisions, even arguably wrong but good faith ones, without fear of constant lawsuit.

The U.S. Supreme Court has found: “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” It’s the second part that liberals want to remove.

It must be emphasized: qualified immunity grants police officers performing discretionary functions immunity from civil suits unless the plaintiff shows that the officer violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” It’s important to note that police do not have absolute immunity, which is enjoyed by elected officials, judges and district attorneys. More about that later.

In addition, qualified immunity doesn’t just apply to police officers. State governors, school teachers, prison officials – all government workers – are protected. But they only want to strip police officers of this protection, even though they have the toughest, most challenging jobs.

They’re the ones who have to make the split-second critical decisions. In what other profession do people have to make immediate decisions that could severely alter the course of their lives? Legislators, judges, and others don’t have to make such immediate decisions. They get to sit around and think about it. But they get even stronger protection?

How can society truly weaken law enforcement? Do this.

Defund the police proponents presumably realized that only big urban departments will be defunded while surrounding suburbs still enjoyed strong police departments (and less crime as a result). Eliminating qualified immunity is a way to systemically weaken, if not destroy, every police department in America. It’s “defund the police 2.0.” Worse, many people don’t understand what “qualified immunity” means, so they might buy the left’s false narrative that it will only “make it possible to hold bad cops accountable.”

No. It will open the floodgates for mercenary trial attorneys to go after average cops personally, including their homes and bank accounts. If you think they would only target the “truly bad” police officers (of which there are a few), you haven’t been paying attention. The people who think curfew tickets are “racist,” for example? Will they sue each officer personally? Even if exonerated, the punishment would be in the process and the costs and stress of fending off constant lawsuits.

Here’s what will happen:

Police officers require qualified immunity to perform their jobs. Police officers perform vital tasks that require split-second decisions under stressful circumstances. The absence of qualified immunity will lead officers to be hesitant to act when action is imperative.

If you want to recruit qualified officers, forget it. Who in their right mind would open themselves up to such personal liability? Every officer capable of retiring will do so. You have to protect your family. This will subject the community to a less qualified, younger police force lacking the cumulative wisdom and training of veterans. Would this be retroactive? What if it is? What if every officer can be retroactively sued personally for every decision someone didn’t like? Can pensions be targeted?

Police should not be held personally liable for actions taken to keep the public safe. During the heightened period of violence in our country, the courts recognized the important role police play in fighting crime and keeping neighborhoods safe and gave them the protection they need to do so without fear and risk of baseless civil actions.

Police officers must be allowed to make good-faith mistakes or have moments of bad judgment without worrying about being a defendant in a civil action. Otherwise, they will just freeze and take no action for fear that they and their family will be financially ruined if they make the wrong call in the eyes of a jury.

Just last month, attorney Kimberley Motley sent out “Notice of Intent” to sue letters to city and county officials along with “numerous Wauwatosa, Waukesha, and West Allis police officers” for actions taken to enforce a curfew during protests and rioting in October. If not for qualified immunity, each of these officers would have to hire their own attorney and fight these allegations, costing them time, money, and added stress.

Qualified immunity pros and cons

Absolute Immunity

Absolute immunity provides both criminal prosecution and civil protection to judges, prosecutors, and legislators for actions committed in their official duties as long as those actions do not have malice or corrupt motives.

It’s ironic that these Democratic legislators, who insist on removing qualified immunity from police officers, will still enjoy absolute immunity and will not be held criminally or civilly responsible for the spike in violent crime and deaths that will result. They want police officers held civilly liable for split-second decisions made by officers, then let’s remove absolute immunity for judges, prosecutors, and legislators who have plenty of time to research and ponder their decisions before they make them.

What is Qualified Immunity and How Did it Come to Exist?

Qualified immunity is a judicial doctrine created by the Supreme Court that shields government employees from liability for misconduct, even if they violate the law. Under the doctrine, government employees, including police officers, can not be sued for violating someone’s civil rights, unless they violated “clearly established law” in light of existing case law. In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law.” The doctrine doesn’t prevent officers from being criminally charged.

According to theappeal.org, The Supreme Court invented qualified immunity in 1967, describing it as a modest exception for public officials who had acted in “good faith” and believed that their conduct was authorized by law. Fifteen years later, in Harlow v. Fitzgerald, the Court drastically expanded the defense.

The protection afforded to public officials would no longer depend on whether the officials acted in “good faith.” Instead, even officials who violate people’s rights maliciously will be immune unless the victim can show that his or her right was “clearly established.”

It was felt that the good faith standard led too often to costly trials to determine an officer’s state of mind, and this approach chilled officers from taking necessary police actions. The new standard made the test whether a reasonable person would have known the actions followed “clearly established legal principles.”

The Supreme Court wrote that “it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. Not only are there the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” That’s why the court created the new standard that an officer also needs to have violated “clearly established” law to be personally sued.

The Court wrote, “We conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We, therefore, hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”


Qualified Immunity Pros and Cons: Should There be a Change to it?

Interestingly, last summer, a bill called, The “Ending Qualified Immunity Act” (the first-ever “tripartisan” bill, with Republican, Democratic, and Libertarian co-sponsors) went further and would have eliminated qualified immunity for all public officials. This bill did not pass.

Republican Indiana senator Mike Braun, a Republican senator from Indiana, introduced the “Reforming Qualified Immunity Act.” This bill would have substantially cut back on the scope of qualified immunity.

We do believe that there is room to discuss revisiting the qualified immunity standard; there are some issues with the clearly established language, in which officers who committed clear wrongdoing (like theft) would still be protected by qualified immunity because the facts of their case did not closely enough match any previous ruled upon cases in which the courts determined that act was not covered by qualified immunity.

The court was trying to avoid costly trials and procedures that deter cops from doing their jobs over cases that weren’t clearly established wrongdoing (i.e., defense attorneys reaching). However, maybe we need to bring back the “good faith” standard.  Revisiting the standard is something that should be considered in lieu of eliminating qualified immunity altogether.

Qualified immunity should not be abolished.


Milwaukee Common Council Members Asked President Biden to Ban Qualified Immunity for Police Officers

In January, members of Milwaukee’s Common Council asked President Joe Biden to ban the use of qualified immunity for police officers in wrongful death lawsuits. You can see that letter here.

In response, Milwaukee Police Association president Dale Bormann said,

“It shows that those who signed this letter to President Biden about qualified immunity have zero respect for law enforcement and the people who protect them every day. It also shows their lack of support for law enforcement and the job that they do each and every day.”

In the end, this is just another way for progressives to destroy law and order in this country. It will be a money grab for civil attorneys as they will see the suing of police officers and cities to be low-hanging fruit and the means for Marxists to take control of our country.

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Trump Thwarts Haley in Her Native South Carolina, Rolls on to Michigan

Sweeping a fourth consecutive primary by a significant margin, former President Donald Trump left South Carolina victorious on Saturday and on a roll heading into Michigan on Tuesday.

Nikki Haley, two-term governor of South Carolina and a former United Nations ambassador in Trump’s administration, was overwhelmed in unofficial very early vote count totals. The race was called minutes after the closing of polls at 7 p.m. Eastern.

South Carolinians, who do not register by party and could choose to vote in either but not both primaries, in early voting exceeded the more than 131,000 votes cast – about 4% – in the Democratic primary on Feb. 3 when 96% chose President Joe Biden.

South Carolina has about 3.3 million registered voters and gets nine of the 538 Electoral College votes in November's general election.

At stake in the South’s first Republican primary were 50 delegates at the Republican National Convention in Milwaukee on July 15-18. Twenty-nine went to Trump as the statewide winner; three delegates each go to winners in the seven congressional districts, respectively. Those results were still pending at time of publication, though Trump was projected to up his total to 44 of the state's 50.

"I have never seen the Republican Party so unified as it is right now," Trump said in a victory speech that began minutes after the polls closed. "You can celebrate for about 15 minutes, but then we have to get back to work."

The nation’s 45th president added to previous caucuses and primary wins in Iowa, New Hampshire and Nevada, the first non-incumbent GOP candidate to open with such a sweep since 1976's primary and caucuses calendar change. Since 1980, only Newt Gingrich in 2012 won South Carolina's Republican primary without reaching the national ticket.

In a social media post in the final hour before polls closed, Haley wrote, "Filled with gratitude today. Getting to vote with my mom and my kids at my side is a memory I’ll cherish forever."

Immigration, inflation, energy, an America-first foreign policy and revenge from the 2020 loss to Biden have been hallmarks of the 77-year-old Trump’s campaign.

“No country could sustain what is happening to the United States of America,” Trump, during his victory speech, said of the ongoing situation at the U.S. border with Mexico. “Right now, our country is a laughing stock all over the world. Our country is going to be respected again, respected like never before.”

On the campaign trail in Rock Hill on Friday, Trump said Haley was staying in the race to help Democrats. The flip side is Haley’s supporters see Trump and his 91 criminal charges as the GOP choice that Democrats would want to face their candidate.

Trump also served up comments on race – sparking partisan critiques – when speaking to a friendly crowd at the Black Conservative Federation Gala in Columbia later in the evening.

Haley, 52, was in Greenville on Tuesday saying she’s campaigning to save the country, led by the topics of education, economy, immigration, homicides, fentanyl and foreign policy. She voted in Kiawah Island on Saturday morning, having spent Friday in Moncks Corner among other stops.

Haley says Trump brings chaos and will be unelectable in the general election, though national polls including The Center Square Voters’ Voice Poll disagree. In a Marquette Law School national poll released Wednesday, proposed 1-on-1 races have Haley defeating Biden 58%-42% and Trump beating Biden 51%-49%.

Prior to Saturday, Real Clear Politics' polling average showed Trump ahead of Haley 63%-32% in South Carolina. Nationally, the advantage climbs to 75%-17%.

While Haley has tirelessly been asked about stepping out of the race, campaign manager Betsy Ankney on Friday confirmed a “seven-figure” ad buy for Super Tuesday states. The March 5 primary schedule includes 15 Republican and 14 Democratic primaries.

(This is a developing story and will be updated.)

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Wisconsin GOP Congressmen: Evers Drew Congressional Maps He Wants Struck Down

(The Center Square) – Some of Wisconsin’s Republican congressmen say there is a problem with Gov. Tony Evers’ latest problems with the state’s political maps.

Evers this week asked the Wisconsin Supreme Court to take a look at the state’s congressional maps.

"MONDAY: I signed fair maps for Wisconsin’s Legislature," Evers tweeted Wednesday. "NEXT UP: fair maps for our congressional districts."

The liberal law firm The Elias Group has already asked the Wisconsin Supreme Court to reconsider the state’s congressional maps, just like the court reconsidered the state’s legislative maps.

The high court tossed those state maps back in December. But Wisconsin lawmakers ended the court’s review and replacement by passing Evers’ preferred maps for Assembly and Senate districts.

Western Wisconsin Republican Congressman Derrick Van Orden on Wednesday pointed out the Congressional maps are also Evers’ own.

“The maps are a 100% product of the Dems,” Van Orden said in a tweet. “Evers drew them. Zero Republicans voted for them. Wisconsin Supreme Court ruled them constitutional. US Supreme Court ruled them constitutional. This is a naked power Dem grab.”

WOW County Republican Congressman Scott Fitzgerald said the same thing.

“I’d like to remind @GovEvers that he is asking the State Supreme Court to review the Congressional maps HE drew,” Fitzgerald said in a tweet. “The map he is now seeking to overturn was drafted by Evers and based off a 2011 bipartisan map, approved by the liberals on the state Supreme Court and survived a challenge all the way to the U.S. Supreme Court.”

Evers said reviewing the Congressional maps is part of his effort to “do the right thing.”

"We want to end gerrymandering in Wisconsin at every level, so I’m asking the Wisconsin Supreme Court to review our congressional maps to make sure those are fair, too."

The Wisconsin Supreme Court has not yet said what it plans to do with the challenge to the congressional maps.

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Wisconsin Assembly Approves Plan to Splits Choice School Funding From Public Schools

(The Center Square) – Wisconsin is considering a massive shift in how public and choice schools get their money.

The Wisconsin Assembly approved the plan to decouple the Racine and statewide school voucher programs, replacing the local property tax money that currently pays for those programs with state dollars.

“Currently, legacy charter schools are completely funded by [general purpose revenues]. The Milwaukee Choice program will be funded completely by GPR by 2025,” Rep. Ellen Schutt, R-Clinton, said. “What this bill does, is says that new independent charter schools, and the rest of the choice program should also be funded by GPR and not by aid-reductions from the local school district.”

That would shift millions of dollars for choice schools in Wisconsin from local school districts to the state.

It would also mean a steadier and more reliable stream of dollars for choice schools.

“Decoupling resolves an issue that involves how the current funding mechanism affect public schools and property taxes. This has been a sore spot that creates unnecessary tension between public and private schools,” School Choice Wisconsin President Nic Kelly told The Center Square. “Decoupling is good tax policy that was already enacted for Milwaukee years ago. We want the rest of the state to be treated the same way.”

Decoupling would mean a boost for public schools. Schutt’s legislation would give public schools a one-time, 25% revenue limit increase. The legislature says that will cost as much as $351 million for the next school year.

Some public schools could end up losing money in general state aid, but the decouple legislation would hold them harmless.

“This bill will really help our public schools when they're setting their budgets every year, giving them some idea about how much money they truly will have,” Schutt added. “It will fix the confusion that is currently out there with the way we fund choice and charter, because it's different based on the type of school it is. We had some administrators come down to testify and say that this was really a great idea, and actually Gov. [Tony] Evers supported this idea when he was the superintendent back in 2015.”

Rep. Joel Kitchens, R-Sturgeon Bay, however said during debate on the plan that Evers’ office no longer wants to talk about decoupling.

The proposal next heads to the Wisconsin Senate.

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Assembly Majority Leader Puts Responsibility on Milwaukee to Restore Faith in Vote Count

(The Center Square) – The number-two in the Wisconsin Assembly says if lawmakers can’t come to terms on an early count law, it is up to Milwaukee to restore the voters’ faith in their election operation.

Senate Majority Leader Devin LeMahieu said he doesn’t have the votes to pass Monday Count legislation. It would allow Milwaukee to count ballots the day before election day in order to avoid an after-midnight vote dump.

Assembly Majority Leader Tyler August, R-Lake Geneva, said Republicans in the Senate should vote on the plan. If they don't, August said, then Milwaukee’s election managers need to act.

“It's incumbent upon the city of Milwaukee to get their act together and count those ballots during the day and have that done so that there isn't constantly this question about the processes in the city of Milwaukee,” August said.

Milwaukee uses a central count location, and election managers in the city say that slows down the counting of absentee ballots. Many times, that leaves a lull between when the votes from election day are tallied, and when the absentee vote count is delivered.

Critics say that lull, and the after-midnight ballot drop, leads to questions about election integrity in Milwaukee.

“People feel like the election is heading in one direction, [then] all the ballots come in at one time in the middle of the night, and it appears that there's some kind of nefarious nature to what's going on,” Assembly Speaker Robin Vos said Tuesday.

Critics of the Monday Count plan also see room for something nefarious. They fear that if Milwaukee has an absentee ballot count ahead of election day, then someone can somehow manufacture an exact number of votes to win.

August said other communities in Wisconsin don’t have the same troubles as Milwaukee and said that’s part of the problem.

“When I go to vote in the city of Lake Geneva they are processing those absentee ballots, there are hundreds of them in Lake Geneva, as well as a smaller staff, less election workers than in the city of Milwaukee has, and they're able to get those done and part of their report that they send into the county clerk by like 9 p.m.,” August said. “So, Milwaukee needs to take a look at what they're doing when it comes to counting absentee ballots, and for their own sake to prove to the people that their processes are secure, and safe, and fair. And get those reports in well before the middle of the night.”

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Denver Schools Facing ‘Unprecedented Challenge’ With Influx of Migrant Students

Denver’s public school system has been taking in as many as 250 new students a week since the new year, which it attributes to the increase in the number of migrants arriving in the city.

Denver Public Schools Superintendent Alex Marrero called the situation an “unprecedented challenge” in a message to the community posted on the district’s website. The district said the influx of new students will cost an additional $837,000 “to support additional needs across the system.”

From July 1, 2023 to January 2024, there were 3,221 new-to-country students with more than 1,300 coming to Denver schools since Oct. 1, 2023, the district stated.

The district is hiring more staff to deal with the increase in students and focusing on hiring people who are bilingual, according to the superintendent.

“The pace of new arrivals has remained steady since the start of 2024, with roughly 200-250 students joining us each week,” a report to the school board stated last week.

On Feb. 5, the city of Denver started enforcing 42-day limits on migrants living in city-owned shelters.

“We are watching enrollment data closely over the next few weeks to see if/how our student population moves in response,” the report stated.

The school district provides a phone number to call “to speak to someone in your language.”

The district has struggled with dwindling enrollment since the pandemic. Enrollment reached 93,800 in the 2019-20 school year and then fell to 90,300 in the 2020-2021 pandemic year. In 2021-22, enrollment stayed about the same at 90,250 and then dropped to 89,200 in 2022-23.

Texas Gov. Greg Abbott has been sending migrants from Texas to sanctuary cities across the U.S. On Feb. 12, Abbott posted on X, the platform formerly known as Twitter, that Texas has bused more than 16,200 migrants to Denver.

"Texas will not stop until President Biden secures the border," Abbott stated on X.

Denver Public Schools did not respond to an email seeking comment.

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Wisconsin Assembly Eyes Limits on Governor’s Veto Powers

(The Center Square) – Republicans in the Wisconsin Assembly are taking the first step to reign in some of the governor’s veto power.

Lawmakers on Tuesday took up Assembly Joint Resolution 112, which would change the Wisconsin Constitution to stop the governor from raising a tax or a fee on his own.

“Wisconsin's unique partial veto is considered one of the most powerful policy tools in the country,” Rep. Amanda Nedweski, R-Pleasant Prairie, told reporters. “From Republican Gov. Tommy Thompson's infamous Vanna White veto, to Democrat Gov. Tony Evers 402-year tax increase, we have seen abuse of the partial veto addressed with proposed constitutional amendments by legislatures nearly 30 times in the last century.”

Nedweski said this proposed constitutional amendment would apply to Evers specifically, but would apply to all future governor’s as well by banning the governor from single handedly increasing taxes or creating fees.

“The will of the people is the law of the land, not the will of the governor,” Nedweski added. “This would appropriately rebalance power between the executive and the legislature, and further restrict the executive from completely rewriting the law. The governor is not a legislator, and the partial veto was not intended to give the governor legislative power.”

Tuesday's vote was the first vote for the plan. It would need to pass the legislature again next year before it would go to the voters, likely next spring.

“We very narrowly crafted this legislation to address the specific situations that we believe members of the public would find the most egregious, the ability for a single person to increase taxes or fees on the people of Wisconsin with the single stroke of a pen,” Nedweski said. “The people should not be subjected to political trickery that does not reflect their will as represented by their legislators.”

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