Listen now | Ken and Josh discuss when police have a legal duty to protect you, the limits of qualified immunity, and why Uvalde may have every legal right to conceal body cam footage.
Great episode - my husband and I are so happy you guys are back! We have had a "tradition" of listening while making Friday night dinner, and now things feel right again.
For the caller and anyone else looking for a deep dive on the history of qualified immunity, I found the Institute for Justice's podcast series "Bound by Oath" to be equal parts illuminating and infuriating. https://ij.org/podcasts/bound-by-oath/
I’m curious what happens after the Supreme Court determines something now is “established.” Do the cops get email blasts describing the new situations? A website they’re supposed to periodically check? I can’t imagine they’re read out at daily briefings.
Unless KCRW has IP rights over it, I second the call for the return of the swear jar. I mean I like the legal analysis too, sure.
How much more hair does Jeffrey Clark have to lose before he replaces Carl Rove as your new evil doppelganger? Is there any chance that a jail would make him buzz down the rest of his male-pattern baldness hair for hygiene reasons?
Really informative podcast, thanks for that.
My one major thought (and this ties into Andrew G's thoughts before) is that the one major benefit for greater allowance of civil litigation is cultural: It provides a vehicle to damage that reverence for police if they're more frequently found being liable for bad actions. To me, that's worthwhile in and of itself. But of course, law of unintended consequences means there's probably a way it does the exact reverse, too.
Question for Ken: Do you get witness fees for a congressional subpoena?
I get that the fear of civil litigation would not necessarily be a deterrent or cause mass changes in law enforcement behavior. But would the discovery process of those law suits be on its own helpful in someway? Like identifying other wrong doing that is easier to prove? It seems like the ability of these suits to be thrown out so early doesn't allow for real examination of what happened when there does appear to be on the surface an injury that has been done.
In thinking about it more, I know law suits are not supposed to be fishing expeditions so maybe this would be a bad thing. Maybe a grand jury investigation is supposed to fulfill this purpose, but with such a close relationship between DA and law enforcement that seems like only the most egregious cases would be investigated.
Maybe reforming public records laws would be a cheaper solution, although no easier to get done.
No question. Just happy that you are back “on the air” brightening up my flight home tonight. Looking forward to the new pod.
I share both of your skepticism of the efficacy of civil litigation in changing the behavior of police officers. However I am having a hard time imagining the contours of a federal law establishing a duty for police officers to protect citizens absent that approach. Is there some other way for Congress to require police to do their job? Maybe through funding?
First off, where is the swear jar? Do we need to raise a certain amount of money in order to afford it?
Secondly, glad to have you both back. Serious Trouble reminds me how much I missed All the President's (and Presidents') Lawyers. Even not talking about legal issues in the Presidential sphere, it's great to hear you guys chop it up (even over the Depp/Heard trial which I couldn't care less about).
Thirdly, random question about SCOTUS: what's it matter what laws States or Congress pass if the SCOTUS can overturn them? If Congress (somehow) passed a law allowing abortion, couldn't SCOTUS just say it isn't constitutional? This New York law has been on the books for over a hundred years and just got overturned. Are US Congress laws less likely to get overturned than state laws? Just wondering if we're in an environment where Republicans have stacked the court against anything Democrats might possible enact.
Very informative and interesting show. Looking forward to all future episodes.
Greetings from Canberra. Great discussion - showing your decision to expand your purview was a splendid notion. Happy to hear there are others subscribing to your efforts.
FYI Ken - here's a BIG legal issue here atm with a VERY high profile sexual assault case. It's about an event which allegedly occurred in our Parliament House. https://www.abc.net.au/news/2022-06-23/bruce-lehrmann-trial-delayed-october-lisa-wilkinson-logies/101176384
Actual feedback aside from tormenting Ken:
I found this episode confusing. I know Ken is not a Texas lawyer and is not going to be familiar with the specifics of Texas' own waiver of sovereign immunity for tort claims, but I found the focus on federal Constitutional claims to be very strange. I would expect any action regarding this matter to be a claim for negligence under state law and trying to navigate public duty doctrine through either establishing a special relationship or potentially invocation of the rescue doctrine based on law enforcement's interference with preventing others from undertaking a rescue. I think I would have much rather preferred Ken analyze the potential claims from a California state law perspective and then disclaim that it might not work the same in Texas, instead of focusing on what the unlikely 1983 claims would be.
Great call on pointing out that Mitchell v. Forsyth sucks ass in civil rights litigation and is a complete bastardization of statute regarding appeals of final judgments as a matter of right.