Qualified Immunity Facts and Fiction

For the last 20 years, Police “reformers” have advocated for the end of a protection of Law Enforcement from civil liabilities, called Qualified Immunity. Qualified Immunity is a doctrine establish by the Supreme Court of the United States in 1967, which protects government employees for being sued in Civil Court for actions taken within the course and scope of their duties. Most of the efforts to end Qualified Immunity have focused specifically on Law Enforcement.
On this episode of Briefing with the Chief, I will be joined by Adam Marangell, the General Counsel for the Los Angeles Sheriff Professional Association, LASPA. He has represented Law Enforcement officers for nearly 20 years. We will discuss the doctrine of Qualified Immunity both its legal aspects and public policy implications.

Episode Transcript

Speaker 1 (00:50):
Good afternoon. This Briefing with the Chief. I'm your host,
Pactor Jordan here on KDRIDB dot com. This is KDRI Radio.
You can find us every Wednesday at five pm Eastern
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(01:10):
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will be all the audio versions of my show. But
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(01:31):
you'll find me all the audio versions of my show there.
Now you can also find me on Twitter or now
known as x at LSD. Jordan and I opine about
a wide variety of things on X and they've been
talking about the riots quite a bit today and it
kind of dovetails nicely into what we're going to talk
about today. Qualified immunion. You have a guest that we're
going to bring on a little bit to get through

(01:54):
at a lawyer, and I would say at least an
officionado of qualified and UNI somebody that understands it to
some degree and can talk about the public policy issues,
which is really what I want to get into. But
you know, I wanted to let you know. The next
couple of shows, I'm going to have CC Wood comes back.
There's a lot of drama here in La County. I
do cover nationwide stuff, but there's some drama in La

(02:16):
La County, and we're going to get into what's going
on in La County with cc She's a local reporter,
mack rator. You can find her at c. C. Woods
on Twitter and at the Current Report dot com here
and just read her articles. And then I'm going to
I'm going to have a gal from Texas come back,
Jennifer Schamanski. We're going to talk about all the stuff
they're doing to ham in their progressive prosecutors in Texas.

(02:39):
They got three of them there, and Soros is pouring
a ton of money into Texas to try and turn
it blue, and they are fighting in the legislature and
her organization, the Consolidated Law Enforcement Association of Texas is
fighting a battle to protect their officers and also to
exercise and sense in their criminal justice systems. Even in

(03:02):
this onslaught of Sorrow's money rolling into the state to
turn it blue. It's crazy. But I also I got
a line on. I've been trying to do this. I've
had Sarah Adams on before, and she's the CIA person
who was in sea in Benghazi when they fought it
out with the terrorists. But she did the cold case
investigation into what actually happened there, and she warned us

(03:26):
that al Qaeda was deeply involved in that. And I
just read the book Al Qaeda two point zero, and
I'm going to get one of the contributors that book
on the show. I just got to line that up.
And I'm you know, we have some folks that are
starting to announce for sheriff in La County. I might
bring those folks on as well, just to dig into
some of the public policy issues that we need to

(03:47):
talk about. Not only that aren't important just in La County,
but they're important all across the country, and many of
them are major urban counties. But hey, today we're going
to talk about qualified immunity, and I can't I can't
talk about qualified the immunion without talking about the riots
and going on here in La since we had some
I don't want say their ice rays, because really it

(04:08):
only started with one hundred and twenty two people being
taken custody. It's not really some kind of sweep. But
that's how it got characterized by the left and the
local politicians, and that prompted a bunch of protests and
then violence. Now I have to clarify. I was listening
to Jim McDonald, he's the chief of LAPD as he

(04:29):
talked about who was doing most of the violence, and
I concur we have a cat of leftists here in
La County that no matter what the cause, they come
out and they commit violence, and they've come out for
this cost. They were out during the violence on UCLA campuses,
committing violence, they were out for George Floyd Floyd viots

(04:50):
committing violence and looting, and they came out for the
BLM riots and committed violence and looting. And they're out
for this too. So these are I don't want to
see that the well, they are the usual suspects, and
in my opinion, they've been it's been under police, meaning
we haven't had the political will to deal with them
here in La County, and we constantly have to deal

(05:11):
with them. And so Jim McDonald's right, but that's who's
doing it. But as he's riot started, I saw quite
a few assaults on police officers and and it's a
good lead in them. We're going to show let's let's
show the video of the of the CHP taking rocks
and bottles on the freeway. Now, as you can see,

(05:34):
the CP officers are under the freeway. When they started,
they had taken over the freeway the protests versus the
one to one near cup Center downtown. But they pushed
all the people off the freeway top side, and these
folks started throwing debris down on the CHP vehicles and
on the CHP officers. And we're going to see a
part of this clip where they the CHP officers are

(05:57):
trying to deal with their cars and keep their cars
from damage. They tried to light cars on fire. Now
the violence has really been scrubbed from this. I watched
it for an hour as the CHP officers tried to
put out fires or tried to remove their cars. They
were pummeled with rocks from up top and you see
down there, and of course they're throwing fireworks at them.

(06:17):
This is what the chpoffsers dealt with. And every now
and then they'd pop up with a lesson elite around
and shoot it upwards at these people who are engaging
in incredible and deadly violence against the CHP officers. So
this is what they were doing. You see the people
all top side, and this is them. Later you can
go ahead and cut it off at the gives the story.

(06:42):
So why I wanted to show that is this is
the kind of situation that leads to force used against
the protesters or others that clearly is justifiable by the
fact that they are using deadly forms against the CHP officers.
But it's the kind of stuff that to lawsuits too,
not only the individual force meaning officer using force against

(07:04):
one particular person, but the tactics used by the CHPD
clear out the freeway. But these are the challenging situations
they face, and what will happen is lawyers will dissect
this and and split it apart and trying to find
where they can make sure that officers, even apps in
all this situation are culpable and we want to sue them,

(07:24):
not just their government, but them individually. And in fact,
we got a little Here's here's the rate this all started.
What what did the ACL do? They started advertising and
trolling for customers. Here's here's here's the Southern California a
CLU let us know. Were you injured by the police
while protesting the Los Angeles area of recing. So this

(07:47):
just just popped up their website. They they're trolling for business.
They're also trolling for donations. You know, that's that's a
big part of what they're doing. They're trolling. They don't
need any money. They sell you foundation. I just looked
them up. They got seven one hundred and fifty million
dollars in their conference. They don't need your money, they
don't need your money. But they're drolling for business. Maybe

(08:07):
they'll get a good business, get a good case out
of where they can get some money, or they can
get a good case, uh to change policies for law enforcement.
But these are the show is one of the big
advocates for getting rid of qualified immunity. You know, before
we bring our guests on, I think I have a
video from the Fraternal Order Police explaining what qualified immunity? Wait, yeah,

(08:30):
qualified immune. Let's let's show that and then I'll introduce
my guests. It's qualified immunity explained.

Speaker 2 (08:35):
There have been a lot of questions centered around qualified immunity,
and the National Fraternal Order of Police is here to
present the facts. Qualified immunity is a type of legal immunity,
and it is not automatically given to every law enforcement officer.
Qualified immunity applies to civil liability and does not apply

(08:57):
to criminal liability. Additionally, qualified immunity does not protect law
enforcement officers from criminal charges, and it does not protect
them from internal investigations, discipline, or termination. Finally, and most importantly,
qualified immunity does not protect law enforcement officers who knowingly

(09:20):
violate the law. That's right, it would not protect a
law enforcement officer who violates the clearly established constitutional rights
of which a reasonable person would have known. In summary,
qualified immunity simply exists to protect government officials from civil
liability when they follow department and or organizational policy training

(09:43):
and the law. Simply put, it protects governmental employees who
follow the rules and regulations set forth by the laws
they are sworn to uphold. Did you know, qualified immunity
applies to governmental officials outside of law enforcement officers.

Speaker 1 (09:59):
That's right.

Speaker 2 (10:00):
Qualified immunity applies to city council members, state lawmakers, governors,
members of Congress, firefighters, dispatchers, teachers, school administrators, judges, public defenders, prosecutors,
and many more. Fact, contrary to what the media portrays,

(10:21):
qualified immunity is not granted to every law enforcement officer
in every case. Fact, out of the last two hundred
cases taken by the lower courts, qualified immunity was granted
only fifty seven percent of the time. That means forty
three percent of the time law enforcement officers were denied
qualified immunity. Facts matter. Bottom line, don't believe the media,

(10:46):
and don't believe those who are trying to vilify the
law enforcement profession. Believe the facts.

Speaker 1 (10:55):
Yeah, so thank you for the FLP, the National Frattorney
Order Police for that little video. But you know, I
obviously they it's it's a little more complicated than the
video explains, but it does a pretty good job explaining
what it's really not. It's it's not this blanket protection
that we're talking that the advocates for getting rid of
it talk about. But let's bring on our guests. He's

(11:16):
an attorney, Adam Marenngel. He's the counsel for the Los
Angeles Sheriff's Professional Association, and he has a law firm.
I think we have a law firm his thing that
we can scroll underneath. I guess to advertise the law firm.
So he does more than just there's there. I think
we got. Let's see his law firm is ww dot

(11:38):
adamarriajail dot com and just throll there we go. I
think we got that. Maybe you need to look at
the regular laws of the website and man and put
that up there. But let's bring Adam up anyways here
and Adam, how you doing. Yeah, it's been a while
and I appreciate you coming on my show. We'll talk

(11:58):
about this complicated issue. So first of all, I will
your thoughts on that riots. You're live in the southern
California area, and I let people usually speak about my
opening comments.

Speaker 3 (12:11):
Then your thoughts, well, fortunately or not as bad as
some of our past riots, thankfully at this point, and
there are pockets of reprehensible horrible behavior against police officers,
and that's always disturbing on any level. Again, fortunately, there's
been no buildings burned or destroyed. But you know, people

(12:32):
have the right to protest. But you know, it seems like,
as you stated, in every one of these progressive protests,
there's always a segment that seemed to be not there
for the cause, but for the celebs, so to speak.

Speaker 1 (12:47):
Yeah, and you saw the video of the CHP. I
don't know if you saw the whole thing. I watched
it for an hour as they tried to assault those guys.
But that's the kind of dynamic situation police officers find
themselves in that's ultimately sometimes lead to lawsuits against them.
In this case it would be the state because the HP,
but also against them personally. Right. Correct, correct, And so

(13:10):
let's get a little more of your background. So you're
the general counselor for LASPA, the Los Angeles Shriffes Professional Association.
It's time to talk a little bit of what besides that,
what else you got going on?

Speaker 3 (13:22):
Sure, So I'm general counsel for LASPA. I've been doing
that for the last twenty years, so again ain't getting
older unfortunately, and have my own law practice for the
same amount of time. So in the private area, I
do civil litigation. I present a lot of police officers
in civil litigation matters, mostly just car accidents and other
really benign kinds of matters. It's a batique law firms

(13:43):
we were very small, and then general council work. I
do pretty much everything to do with police officers, defitting
them in internal affairs, investigations, overseeing the entire union, our
litigation or panel attorneys, dealing with the county all the
labor issues, pretty much anything to do with a police officer,
deputy sheriff and LA County I assist with and am

(14:04):
involved with.

Speaker 1 (14:06):
Okay, and as general counsel for Los Angeles Sheriff's Professional Association,
you represent them both in primarily in administrative matters, right.

Speaker 3 (14:16):
All administrative? Actually I don't There was a time when
I did defend police officers in court, both not criminal
but in federal and state court and sometimes with qualified
immunity defenses. But that's been a long time.

Speaker 1 (14:28):
Right, Okay, All right, Well, lit's I wanted to talk
about it. We got to probably explain to our audience,
and so just to clarify, Adam, in addition to the podcast,
this is a radio show, so we've got to be
a little more exploit a little good at explaining this.
Folks are folks who are just listening on our radio platform,
and so qualified community, and certainly we get into discussion.

(14:48):
This is a is a doctrine that started in nineteen
sixty seven with the Supreme Court, where they passed this
doctrine to protect not just law enforcement but all executive officers.
I guess is probably the best way to say it.
From frivolous lawsuits. To me, it seems like it's a
gate caper to moving forward in your lawsuit in which

(15:10):
you had to show that the violator for the officer
to be sued, you have to show that they clearly
violated constitution. The violated constitutions, right, and it was something
that they should have known, I guess is probably the
best way to say it should have bed this violation.
Could you add to that at all?

Speaker 3 (15:25):
Yeah, it's actually it should have known clearly established right.
So it's got to be a violation of the constitutional
right that was clearly established by prior case law in essence, right,
so the officer has some notice that what he or
she is doing is actually wrong. It's the best analogy
I can give you is a speed limit like, if

(15:46):
you're driving along a road, you have to know there's
a speed limit. Otherwise how you can be held liable
for breaking a speed limit you had no idea existed. Right,
That's kind of a simple way to put it. But
that's essentially what it is.

Speaker 1 (16:00):
And here's the complicated thing about clearly, clearly defined and
no right. I mean, because that's one of the things.
I come from a large organization. Obviously, you do represent
the law enforcement officers in it, eighteen thousand employees in
a county with ten million residents, and then we have
I think another see laped has got ten certainly another

(16:20):
ten police officers, and then we get the whole state.
So if there's a lawsuit that occurs which changes how
the Constitution is viewed in terms of a behavior of
a police officer, that and suddenly behavior that was once
acceptful and seeing as in policies now out of policy,
that takes a long time. Don't retriculate down to the

(16:42):
law enforcement around the officer in the street. Right, So
and things change, they go back and forth. You know,
law is dynamic, right, It moves slow but fast enough
to where you may be out of the loop and
changes the law would that be accurate.

Speaker 3 (16:56):
That is accurate I think for the most part, though
once the case law comes down, there is some grace period, right,
and also depends on the fact pattern, Like some things
are so egregious, right that it's almost instantaneous, like the
case comes out and all peace officers presumed to know
that this is not proper right. And that's one of
the things that is the problem. And when I say problem,

(17:18):
the controversy with qualified immunity is that second problem that
we're talking about that clearly established because those fact patterns
where the courts rule in favor of qualified community because
the violation is not clearly established. A lot of those
fact patterns are just bonkers and a lot and i'd
defend police officers are frankly heinous. They can be, honestly,

(17:40):
and this goes into a little bit of field here,
but those officers almost universally terminated, right. So it's only
qualified immunity we're talking about. And that's a big misnomber too,
that when qualified immunity is granted, that somehow these officers
deputies whoever they may be, you know, keep their jobs,
aren't punished in anyway and kind of go about their lives,
which is clearly not true.

Speaker 1 (18:02):
Right, So okay, well let's clarify what we're talking about.
So somebody could be protected by qualified imunity in civil
corp but still be still receive some kind of administrative discipline.

Speaker 3 (18:13):
Said, yeah, uvortually all those cases I spoke of, and
you know, we could go through some of the fact patterns,
but just think, you know, some of the biggest cases
you've heard of, the biggest uproars over qualified community being
granted universally those cops are not universal, but virtually universally
they're terminated. If not, they have severe, severe suspensions, and

(18:34):
they're open to civil liability. Apart from qualified immunity grounds
state court actions. The departments are often held liable through
something called model liability, and that's often a counterpart to
a qualified community nineteen eighty three lawsuit. So you know,
I'm getting a little field here, but people need to
realize that quality immunity will one it's qualified, right, it's

(18:56):
not blank immunity. And two there's others that are almost
always meeted out to the outfauled officer. In all these cases.

Speaker 1 (19:06):
Well, one of the things the advocates will say is,
you know, I can't get justice. And that's really not accurate, right,
You can still get you can still sue the municipality
or the state in this case, the state with the CHP,
and you could still get a big settlement, and then
the state would have to adjust how they train or
what they do with their officers, right, you know, and

(19:29):
you can and they the officers can still even if
they I can't imagine a time where you can commit
a crime and be prosecuted in criminal court and not
be seen as violating consecus, right. I would think that
that would probably just spell qualified immunion anyways. But the
point of that is it's not criminal. When you can
see people get up there, they'll say, well, they're not

(19:50):
they can't be held accountable. But in reality, lots of
times police officers are held accountable in criminal court. So
it's it's a misnomer. It's it's kind of a it's
a distraction. Right when these advocates say, well, we can't
hold police officers accountable because of quality immunity, that's to
the ignorant people who don't understand that, well, absolutely, there's
a lot of ways to hold them accountable.

Speaker 3 (20:11):
Well, right, And in defense of all those people. I
mean a lot. This is a very nuanced area of law.
I mean any area of law that's been up to
the Supreme Court at least five separate times and had
different rules each time. It's pretty complicated, right. But as
far as justice and getting justice regarding a perceived wrong
or a real wrong committed against you by a police officer,

(20:33):
qualified immunity only applies to a nineteen eighty three actually
that's section nineteen eighty three of the US Code. That's
civil rights. That's all it is. It's a lot moving wrong.
It's a huge component of a civil lawsuit. But you
have state court actions and as I said, do you
have an administrative law actions and affairs investigations. It's really
it comes down to money. Honestly, I'm not saying that

(20:55):
these people are just after money. But when they say
we're not getting justice now you're stock in a segment
of your money in a civil lawsuit, that's that's all
they're talking about. If you really want justice and the
officer to be punished, then administratively, they almost universally, as
I said, get punished.

Speaker 1 (21:13):
And and these these cases where they try to hold
an officer accountable civilly. Uh. They are heavily litigated, right,
So you you have to show this. I think we
got one card. This is an LA it's the LA
PD case. This is from the LA Times a headline.
I want to throw that up there, Amanda. Here it
is so the Ninth Circuit deals a blow to qualified immunity,

(21:34):
relieves law revives lawsuit against an l a PD officer.
You wouldn't take that down. I'm somewhat familiar with the case.
I won't get in too much of the detail on it.
But what this means is she was given qualified immunity
before it's it's it's been reviewed by the Ninth Circuit.
They eliminate the qualified immunity. And I believe there were
in this case. There were two basically two relays of

(21:57):
fire and they and in this case they're saying the
second times she shot her suspect did not qualify. It
was not constitutional. It's the argument now that's going to
probably be appealed higher up, I would imagine, and either
either the Supreme Court will hear it or they'll have
to fight it out in the lower court and then
it'll go back up the Supreme Court at a later date.

(22:17):
No doubt, no doubt. But it shows that, as you said,
qualified immunity is not blanket immunity.

Speaker 3 (22:25):
No, no, it's not. It's fact dependent. And a lot
of times I think the video of the FOP video,
which is very good, by the way it shows, is
not universal. It's not just a blanket. You know. You
just don't say, you know, I want call off ammunion
and the court blesses you. That's not the way it works.

Speaker 1 (22:39):
Yeah. And one of the things that they said in
that video, which most people don't understand. So they want
to get rid of qualified immunity, they say for cops.
But once you get rid of qualified immunity for police officer,
it opens the door for getting read of qualified immunity
for all executive officers.

Speaker 3 (22:55):
All of them, all of them. Because you can't, as
far as I know, you can't carve it out. You know,
there's equalis toss everything else. You can't treat one subgroup
of governmental employees differently than the other and give them,
you know, take away rights from them that you grant
other subsets. I believe I'm an expert in that, but
that's that's the problem with that, is it's all or nothing.

Speaker 1 (23:15):
Yeah, and it's it's interesting when you look at the
FOP thing, they talk about legislators having it. I wasn't
aware of that. Judges have it. Maybe they call it
judicial immunity. It is right, so they might have a
little different name to it, but as it acts the
same way. But teachers, I know that teachers have qualified immunity,
and they obviously don't. They don't face the same level
of split second decision making that cops.

Speaker 3 (23:38):
No, but firefighters do a lot of times.

Speaker 1 (23:40):
Yeah, and they're protected too by.

Speaker 3 (23:43):
The same same concept, same.

Speaker 1 (23:45):
Law even even uh you know, I uh, there's if
you're an engineer working for the road department and you
design a street a particular way, you are you are
protected by qualified immunity. If you're if you are a
government worker. Right, So these it covers everybody. And by
getting rid of because the argument is we get rid
of it'll it'll get us better policing, and alls I

(24:08):
think it'll do is just open up more lawsuits, make
everything much more expensive, and I think law enforcement will
just cause a chill with law enforcement. They'll pull back
because it won't have twice.

Speaker 3 (24:20):
Great And that's it's also a public policy because you
want your officers and your firefighters frankly to make the
best decisions they can and split second scenarios to the
benefit of the public. And if you have an officer
or a firefighter hesitating and thinking, wait, let me think back,
was is there a case on pointing on this? You

(24:41):
know that's second or two? I mean, that could be
the life of somebody, right, including the officer firefighter. So
that's a primary reason is you don't want your public
servants second guessing themselves and hesitating when lives are on
the line. That's the primary reason. And secondary to that,
much farther down is the cost to the municipalities of

(25:04):
the flood of litigation that would ensue over everything, right,
because even in these lawsuits where you know that are
bogus without qualified immunity, it goes through all the way summery, judgment, trial,
everything else. And who pays for that the taxpayers.

Speaker 1 (25:19):
Yes, the taxpayers going to pay for it. And so
let's let's let's talk about this a little bit here,
because you've been part of many civil lawsits, so that
was a long time ago, did that. I'm sure you
know that there are a lot of cases where the
officers have absolutely done nothing wrong. They were well within
the scope of their duties and their training. And still

(25:39):
you lose lawsuits to juries.

Speaker 3 (25:41):
Oh yeah, oh yeah, you didn't. You never want to
be in front of a jury as a plaintiff word defendent.

Speaker 1 (25:46):
You know.

Speaker 3 (25:47):
I do a lot of mediations also, and I basically,
you know, tell people when I'm trying to get the
cases to settle, say, let let me give you an
example why you don't want to be in front of
a jury. When you're driving around. You know, how many
idiots do you see on the road, being around the store.
You know, think about how many times you say, oh,
that guy's a moor. That's who's going to be on
your jury. Right, So they don't always get it right.

(26:08):
I've done a lot of jury trials and I can't
tell you not I can't get shut out a lot.
But I've gotten verdicts against me that I had no
business getting that vertict against me, and I've had verdicts
for me, frankly, that I have no business getting that verdict.
So it goes both ways.

Speaker 1 (26:24):
It's surprises. So one of my last duties, when I
was the chief on the La County Shriff' apartment is
I was the liaison to the to the JPA, the
Jointed Powers Authority that of contract cities that oversaw the
litigation issues that that contract city is based from the
shriff' apartment. Because they wanted more control, they bade into

(26:44):
a liability fund, and they wanted information on how we're
settling lawsuits and dealing with lawsuits and and that all
we had to buy insurance, you know, for the department
for these cities, so that the shrif's apartment was covered,
and a lot of that stuff played in and we
would go through the lawsuits that we lost. Right, And
here's one that's interesting. So the deputy pulls somebody over, right,

(27:08):
and prior to pulling him over for a legitimate violation,
he swallows some myth right, And as he pulls him
over and he's talking to him, he notices the guy
is starting a sweating. There's some changes. He recognizes that
something's going on. He don't know what it is, and
he says, hey, are you okay? Do you need help?
Did you swallow anything? No? No, no, I did not.

(27:30):
And as he's talking him, he continues to progress and
gets worse, and then he says, you know, what and
he called for He called for a rescue, He called
for nine oo twar he called for paramedics. They got there,
the guy went into some kind of I think cardiac arrest.
They rushed into the hospital, end up dying at the hospital.
And all the experts said, hey, you know, once that
guy swallowed it, his goose was cooked. There was no

(27:53):
changing it. So and the officer recognized a problem. And
the argument of the plintiff attorney or the assuming the
officers in the county was that, well, you know, have
you noticed sooner? You know, so they ignored the expert testimony.
So here, here's a situation where the guy is just
doing a traffic stop and the guy the guy swallows

(28:14):
dope because they want to be caught with it, and
the guy dies. But the jury sided with him, not
because the deputies did anything wrong, but because the jury
felt sympathetic and wanted to give him money. So, as
you said, you never know what it is because they
pulled the jury. They asked him why did you come
out with this verdict? Right, you're similar that you ask
why why did you come to this verdict? That it

(28:35):
had nothing really to do with the fact pattern. It
just said they had sympathy for the guy who died.

Speaker 3 (28:40):
Well, there is there is a thing call that I've used.
Did both these things jury judgment off standing the verdict.
That's one thing you can do. There's also editor or
you get money added to the verdict. And there's also
remitter where you take money away and that that can't happen.
But those when you pull a jury, they say yes
or no or whatever it is. But you get to
talk to them if you they want to talk to you,
and those conversations can be I mean, just mind thembing.

(29:02):
Let me tell you.

Speaker 1 (29:04):
Well, and so if we take away this protection for
law enforcement officers, they become you know, cannon fodder for
really good attorneys who know how to manipulate a jury
to get the outcome they want, even if they did
everything right, I guess is my point. And their assets
can now be at a target for very creative lawyers,

(29:27):
even though they did everything that they were trained to
do and did it correctly. That's the downside of this
For the individual officer.

Speaker 3 (29:34):
Oh yeah, it exposes them to immense personal liability.

Speaker 1 (29:40):
Correct, right, Well, so let's talk a little bit about
So I want to talk about a case that happened
in twenty twenty two, where clearly the cops were out
of scope. It was an interesting case. It was Brianna
Taylor case in Louisville occurred in twenty twenty two. The
law enforcements, I think it was Louisville Police Department. We're

(30:01):
serving a search warrant, and the people serving the search
warrant narcotic scheme serving search weren't headed by a sergeant
did not write the search warrant, and that's important later, right,
they do not They do the knock, They go in,
they say they knocked. They go in. The people inside,
Brianna Taylor and her boyfriend, who was armed, say they
didn't know it was a cop, and they think it's

(30:22):
an intruder. It's a narcotics warrant, and her boyfriend shoots
at shoots, a sergeant shoots him, he shoots back. Brianna
Taylor's between the two of them, and she's killed. What
is subsequently found out is the investigators who wrote the
warrant lied or embellished the defiant information. So it's for

(30:44):
the audience. So whenever somebody writes a search warrant, they
have to establish there's problem cause that a crime is
occurring and evidence of the crime in this case would
be in this apartment, and so that's why we need
to do the search warrant. Right, But they lied on that,
and you sign it bottom. I attest that the information
I'm applying that I'm writing here is true or to

(31:06):
the best of my knowledge, is true. That's the officer,
that's the detective, and they wrote this. They got their
search warrant from the judge, they gave it to this
team to serve, and what subsequently came out is that
the people, the investigators, lied on the search warrant. So
that would be a clear example where they knowingly violated
somebody's constituts. Right. This would be the Fourth Amendment, right,
you know, search a seizure, and they did something that

(31:28):
they clearly knew was wrong. In fact, it's at the
bottom of the warrant. I attest that the information I'm
giving in this affidavit is true, right, And they attested
that to a judge. Right, So those are they have
violated both prongs. Now I don't know if they were
I'm assuming they were sued the city settled. I don't
know if they were sued individually.

Speaker 3 (31:45):
Certainly also clearly not that they just knew it was wrong,
that it's been clearly established by prior case law, which
it has in that case cases all over the place,
So you can't do that.

Speaker 1 (31:54):
Right So that would be one of the cases where
they don't get qualified immunity, and it's an and objectively reasonable.
It's not objectively reasonable to lie on a search warm
right now, most.

Speaker 3 (32:05):
Of these cases real quick and started to interrupt. But
most of these cases like that, there's no qualified immunity,
Like the only the uproar of these qualified immunity carve
outs are these bonkers fact patterns that haven't happened before.
Therefore they don't have prior case law. They don't happen
very often at all. It's just it's not commonplace. Most

(32:28):
of these cases, like you just described, they don't get
qualified immunity. They're on the they have personal liability, they're
fired most of the time, you know. So we're talking
about a very small subset of cases here.

Speaker 1 (32:40):
And let's talk about you know, the fact that an
officer might not be liable, the officer might actually be
in scope, but the municipality might.

Speaker 3 (32:47):
Be liable correct under monel correct.

Speaker 1 (32:50):
Yet So let's say they've trained to a certain standard
and that standard has proven later to be contrary to
what people believe is constitutional. You know, think about it.
We have I don't know how many police agencies sixty
thousand whatever in the country, and there's varying degrees of
efficiency at making sure people are trained properly right, and

(33:11):
sometimes you might have an agency that just doesn't train
to the standard that they should be trained to. The
officers do what they think is right. However it's proven
later to be the municipality hadn't trained them properly. In
that case, the municipality would be sued and likely lose. However,
I think qualified immunion would kick in. And I mean
giving a very simple example an example. And the other

(33:35):
part of this is most of the lawsuits that I
am aware of that the county county gets sued by
the county ends up getting sued and either they settle
or they lose the lawsuit. But if the officer is
in scope or reasonably within scope, they cover that liability
for the officer, and they do.

Speaker 3 (33:55):
There's an exception with William One. The officer has to
cooperate with defense. That's it gets in the needs and
what they have to do. But any event, punitive damages
are not covered. They often do. They often do pay
if there's a perium damage award, but it's against public
policy for a municipality or insurance gotany to ensure against
punium damages.

Speaker 1 (34:17):
Yeah, and so let's clarify that. So the most municipalities,
in terms of being self masured to some degree, also
carries some liability share of insurance from catastrophic settlements, right
or cases?

Speaker 3 (34:29):
Right, Yeah, there's access coverage, all kinds of.

Speaker 1 (34:31):
Things, right, and he might even have different levels of it.
Some people will ensure up to a certain level and
then you have the catastrophic stuff. Okay, So when when
when a county gets sued and they decide that they're
you know, the one I the one I remember the
most is for some central Jail stuff. Lee Baka and
the captain of the Central Jail were held personally liable

(34:53):
meaning punitive damage against them and they had to pay it.
And the county at the time was mad at the sheriff,
so he didn't cover any of that. They didn't cover
that for him them. But sometimes that happens and the
officer is covered. But there's usually some kind of protocol.
Well they'll look at it and say, okay, well where
was the officer's behavior relatively reasonable given the circumstances, and

(35:14):
they'll cover it right sometimes yeah, but yeah, because here's
the thing, as we as we said, is the fo
as the FOP said, this couser covers everybody. So if you,
if you as a municipality, uh, practice not covering let's say,
punial damages against police, but you cover all your lawyer
or your firefighters and your teachers, you know, they'll become

(35:36):
a day when maybe some of those other folks aren't
covered in punial damage. So they're just you know, they
really have to. The municipality has to be careful, uh,
and and protect their staff if they want to be
able to keep hiring. Right. That's the other part of this,
right okay.

Speaker 3 (35:51):
And the other other thing is that the salary disparity.
I mean there's police officers generally an in larger municipality
get paid well, but it's it's not in my view
enough for what they do. And a lot of people
are just going to say, you know, screw it, you know,
job somewhere else, I don't need this. That's already happening,
by the way, now with off community. Look at any

(36:11):
large department, even small departments across the country, they're understaff,
they're losing cops and they can't replace them. Yes, it's
already happening.

Speaker 1 (36:20):
I just there's some recent information came out that the
La County Sheriff's Department so eighteen thousand employees, but they're
down twenty four percent. That's huge.

Speaker 3 (36:29):
I don't think there are employees in general.

Speaker 1 (36:31):
Employee overall employees in general, so probably more civilians than deputies.
But even when you're down ten to ten percent on deputies,
that's still huge because it's really hard to replace that
kind of number and that there's a lot of issues
that go into that. But stripping people of civil liability,
our criminalized, our civil liabilities would just accelerate that that issue.

(36:52):
So hey, So sometimes we have cases that that they're
so newsworthy that the information gets out. We kind of
talked a little about that. It's the migration or matriculation
of information so you can change your policies. And I
remember one case, CHP lost a case twenty million dollars.
They let a drunk driver go home. You know, he
was drunk gave him this car. Remember that it was

(37:15):
probably about twenty years ago, and they lost twenty million
dollars and that judgment it was like overmost overnight that
we all got noticed. If you pull somebody over, you
smell alcohol, you bring them in, you don't let them
go home, right, and everybody stays for six hours until
they sober up if you determine that they're actually drunk driving.

(37:36):
Because that was a huge case that they lost. Now
I don't believe the officer was held personally liable, but
that's an example. Sometimes the case is has such a
detrimental fact financially that the information gets out quickly. But
that isn't always the case, right. Sometimes it could be slow.
Sometimes it can take a while for that stuff to
articulate down. So let's see correct. Okay, I think I

(38:00):
got a I wanted to show another. I got something
from Ohio here. This is some municipalities are our passing laws,
our states are passing laws to eliminate qualified protection in
their jurisdiction. This is they're just having a discussion there.
So let's show that one. I'll read the headline.

Speaker 4 (38:18):
The New York City Council just voted to end qualified
immunity for police officers. The protection has prevented officers from
being sued or liable from his conduct. New York City
is the first city in the country to end qualified
immunity for officers. Critics argue scrapping this protection would make
officers less aggressive in fighting crime if they have to

(38:40):
worry about lawsuits. The measure was passed by the council
as part of a package of police reform bills.

Speaker 3 (38:50):
Yeah.

Speaker 1 (38:51):
Yeah, so this is New York. So we have cities
that are actually I don't know how a city could
do it, right, And.

Speaker 3 (38:57):
I'll tell you how they do it. It's it doesn't
apply again to sineteen eighty three civil rights actions in
federal court. It applies to whatever state law they're you know,
talking about. So that's a big misnomer because I've seen
that stuff too, and like if they got rid of
qualifity community hold hold up, not really.

Speaker 1 (39:15):
You know, righter for federal cases, right, But they they
you know, because I imagine the same similar doctrine probably
sometimes pops up in state.

Speaker 3 (39:25):
Course, there's analogs. California has an analog in nineteen eighty three.
It's the same same principle as New York and you know,
I don't know if that's going to stay, by the way.

Speaker 1 (39:34):
So there, so in this case, New York City rejected it.
We're not going to do that either. They're not going
to defend themselves with that, which is foolish, doesn't.

Speaker 3 (39:41):
I mean, it's gonna be like, it's not gonna work.

Speaker 1 (39:44):
I know. But so here we got the state of Ohio.
Let's throw that headline back up. They are doing a proposition.
They're put it in front of the voters for the
voters to decide limiting qualified communion. And I like the
way they did this for public workers. One step closer
to going before the voters.

Speaker 3 (40:01):
Now that's crazy. That's that's absolutely insane.

Speaker 1 (40:03):
Isn't it crazy. Here's the thing though, on that one,
it's it's, uh, this is what I anticipate. And you're
you're you've been around for a while, so you understand
the politics of this. Uh. They didn't say against cops.
So whoever, somebody's pushing for this, and somebody probably worked
that proposition to make sure it was for all workers
so that the teachers and everybody else would come out
of the woodwork to go against it, right, So we
have a lot of money that will go against it.

(40:24):
So I don't see it really passing in Ohio just
because you're going to have all the all the government
workers are going to be fighting against you.

Speaker 4 (40:33):
Right.

Speaker 3 (40:33):
And by the way, back to the New York on,
I don't you know. New York's got a massive police department.
It's the largest. They have forty thousand officers, somewhere thirty
five to forty. I mean it's enormous. So can you
imagine the cluster that would I mean, it's going to
be unmanageable if that really goes into effect.

Speaker 1 (40:51):
Well, plus, they they they're very permissive and in their lawsuits,
they have this antactic attitude going on. I mean it's
shifting there a little bit. I've I've done some podcasts
with some New York cops and it is shifting to
a great degree, or I don't want to say rapidly,
but it's shifting the pendulum swing the other direction. Now

(41:13):
they want to do more aggressive police work. But here's
the thing. If you pass something like this where you
eliminate qualified immunity, and then you tell your cops, well, hey,
we need you to be more assertive we need you
to go out on the streets, and we need you
to embrace some of the some of the tactics we
use in the in the past to reduce crime. What
they call it, One of the guys calls it intrusive

(41:36):
police work. Get a little more intrusive in your police
work if you get rid of qualified immunity. That puts
a chill on that kind of police work. Right, you know,
you've become just a firefighter. You're just responded to the disaster.

Speaker 3 (41:47):
Why would you want to do anything more than you
have to as a cop if you don't have qualified
immunity exactly. And well, the less contact you have with
civilians in any event, regardless of whether it's qualified immunity
or not, the less you're gonna open yourself to any liability.
So if you have no qualified immunity, I mean you're
gonna be like yeah, fatdom and happy as they say.

Speaker 1 (42:07):
Yes, right, and and so that that you know, So, yeah,
how do you how do you inspire? You know, because
I used to have to push guys and I think
we were across the table sometimes on disciplaary issues. I
was pushing guys to do their job, you know, and
I really needed to get out there. But I will
tell you, when I first joined law enforcement, I felt
that the political the political structure was behind us. I

(42:29):
don't just me and my boss, the sheriff, right. I
felt that we had a supportive board of supervisors, supportive
city council in a lot of ways, and so we
had some level of protection. In addition to these folks
pushing to get rid of qualified immunity. I don't think
we have that political protection anymore. We have willing people

(42:49):
in the decision makers on granting whatever settlements or whatever.
The board of supervisors. They're kind of an anti police
ban going on, and you see it in these riots, right.

Speaker 3 (43:01):
Yeah, the settlements, speaking of settlements are insane relative to
the injuries. I mean in some now granted, some of
these cases again where you have legitimate, bad acting police officers,
it happens, for sure, rare relatively speaking, but it happens.
That's not what I'm talking about. I'm talking about like
just par for the course. You know, a personal injury.

(43:23):
I mean, they're outrageously high, outrageous, and I do personal injury.
So it's me saying that you know they're.

Speaker 1 (43:31):
High, Well, you're doing when you're say personal injury, are
you representing the officer who gets injured during the courson
scope of his duties?

Speaker 3 (43:39):
I do, I do if there's a third party involved.
So the easiest example I give you, if there's an
officer doing, you know, going Code three or even not
Code three, just driving and here she gets an accident,
not his or her fault. He or she has a
worker's complaim because on the job injury, but also a private,
private personal injury action against that driver. That's what I
would do.

Speaker 1 (44:00):
Yeah, my last day of work, I don't if you know,
that was a car accident and I was not at fault,
and they pushed me to do that. I didn't do that,
but I was also I was recovering, you know, and
I still have issues related to it. But I understand,
I understand why not. There's a very reggious society, you know.

(44:22):
I knew I would be covered and workman's component was.
But everybody's going to sue you for everything else, So
I get it, right, But.

Speaker 3 (44:30):
It's only a claim, it's not it's.

Speaker 1 (44:33):
Yeah yeah yeah at first. But so there was a
like I said, I was the representative on this liability group,
and they did have a case where there was a
shooting and everything. The fact pattern for the shoe was justified.
The pink ble involved looked great, and they followed policy.

(44:53):
There was a clear any reasonable person would understand it.
But when they surveyed the jury that as they're getting
ready for lawsuit, it was you know, the guy had
three kids and they knew they were going to lose,
so they settled for nine hundred thousand dollars. So it's
part of what is going on, is this this anti

(45:15):
police narrative just opens up municipalities and officers for liability,
even if they acted reasonably and within the scope of
their work.

Speaker 3 (45:26):
They don't want to take the risk of a downtown
l A jury. And by the way it works, it
works to personal injury plaintiff's attorneys favor having a downtown
l A jury. I love LA cases because the juries
generally are very liberal in their awards. That cuts, you know,
against police officers as much as it favors you know,
car accident victims.

Speaker 1 (45:47):
Right, And so if we're throwing officers out there without
with limited protection because they don't qualify to unit immunity,
we could see disastrous judgments against the officers, not because
they've acted even though they done nothing wrong. It's only
why would need the protection in the first place. And
you know, when I was doing my research on this,

(46:07):
this is exactly why the Supreme Court put it in place.
Is they didn't want frivolous lawsuits being filed against executive officers.
You know, our discussion is mostly police officers. And you know,
I'm curious for a case to go up to the
Supreme Court because I want them to reaffirm it, right,
and we affirm it with stronger language. But the intent

(46:28):
of the Supreme Court, at least in my reading and
having done thirty eight years in law enforcement, is when
the rubber meets the road on implementation of policy, it
isn't always black and white, right.

Speaker 3 (46:38):
No, that's the whole point of the clearly established standard, right.

Speaker 1 (46:41):
Right, It's yeah, there's gray area here. So my first
example is when we showed the video, I was watching
the CHP officers and every now and then they would
pop up and they would shoot some left un lethal
right at guys who were throwing chunks of concrete at them.
So the demonstrators or I don't want to call them
demonstrators because they're thugs, if they're if they're committing violence,

(47:04):
are clearly trying to hurt the CHP officers, and the
CHP officers are occasionally firing back. I mean it's like
not even ten to one. It's like they throw a
hundred rocks and maybe these guys might shoot once. Right,
So but if that officer then hits somebody, it maybe
hits the wrong person and that and hits them in

(47:24):
the face, now they're open to a lawsuit.

Speaker 3 (47:26):
Not in that not if first there's qualified immunity that
would apply, because those protesters or however you want to
trom them, they're not exactly traitionally protected activity. So let's
say they're not throwing rocks. Okay, Let's say there's one
one protester with a sign that says, you know, abolished
qualified immunity, and a cop comes up and shoots them

(47:47):
with a forty you know, right in the forehead. That's
there's no qualified immunity on that case.

Speaker 1 (47:52):
Right, So that's but let's let's say there are rocks
thrown and we have a a a a jury pool
in downtown LA, which is where this happened at. Who's
going to be sympathetic to to to the I don't
want to say the victim because that don't say the plaintiff.
So the guy gets hit in the face, because if
somebody didn't get hit in the face, they went down,

(48:13):
and then his regular his other comrades probably the best
word to use for him, we're tending to him. And
let's say he calls up the A c O. U
like because they got their trolling out there, and he
files a lawsuit and we don't have qualified immunity, so.

Speaker 3 (48:28):
You don't have qualified community.

Speaker 1 (48:31):
Let's say it's been eliminated. Now that officer took his
action to protect himself and his other officers, and he
doesn't have that protection, and that lawsuit is filed. Now
it can go forward without having to meet the test.

Speaker 3 (48:43):
Right, Yeah, but then you just have the standard defenses
of you know, the guy's throwing rocks on me, et cetera,
et cetera. I mean, but yeah, you don't have that
layer of protection. I don't think that particular case would
be very worrisome as a defense attorney. But you know,
as we both agree, you know you don't want to
jury decide, correct.

Speaker 1 (49:01):
But there there are two there's two parts to a court, right,
So there's there's the there's the process that you have
to go through, and the expense that you have to
go through depending yourself on a lawsuit, and the emotional
uh trauma of getting sued, right because it's sometimes it's
going to be a very emotional thing for it. I
mean I looked at it as like a war if
I was a witness and go and get yeah, and

(49:24):
but some some people get get really nervous. And now
you're thinking your house is on the line, all this
stuff is on the line, and you have to either
hire attorney if if they're not, if the county doesn't
provide one for you, because if you're getting sued civilly,
now are you really going to just trust the municipality
to make sure they have you have to start.

Speaker 3 (49:44):
You have you will get provided an attorney as well
as it is within the course of scope of your employment,
they will provide you the attorney. You can get your
own attorney. And I get these calls all the time
from cops that ensued, you know, which I do, and
I advise them the courting. You're right, they're they're nervous,
even if it's just a standard like little car accident,
that they caused with barely any injuries. You know a
lot of them freak out rightfully, so you know it's

(50:05):
not fun being sued. But the county will give you
an attorney. You can hire your own council, but it's
not advisable because you got to pay out of your
own pocket and it's exceedingly expensive to do that.

Speaker 1 (50:16):
Let's say they managed to get a judgment against you personally,
so they get to get a lawsuit against you. But
now what happens, So now you have to declare all
your assets.

Speaker 3 (50:27):
Right, well, if the county will pay, you're presuming the
county doesn't pay, right, okay.

Speaker 1 (50:32):
Just well aim Remember we got we have a whole
bunch of leftists on the LA County Board of Supervisors.
Right now, Let's say they don't. They decide, well, we're
not going to pay.

Speaker 3 (50:40):
If a deputy loses, well then you're just a standard
defending with a civil judgment. Judgments are good for life,
the renewable every ten years. The planoff council can do
a tilt tap. If you own a business, they can
garnish your wages, they can levy your assets. They can
bring you in for a judgment deetor exam. You're only
out early as bankruptcy, and you can't bankrupt PUNI damages,

(51:00):
by the way, so you better hope it's only capensitory damages.

Speaker 1 (51:05):
Right. So if they are successful and the county decides
not to support you, because we have a bunch of
leftists on the county county border, so far as they
and the La City Council, now, I don't see them
doing this on these are just.

Speaker 3 (51:15):
What government against that?

Speaker 1 (51:18):
Yeah, I don't yeah, because you know, because they open
themselves up, you know, if qualifying. I mean, we're looking
at that Probation department these days, it's a mess over there.
The people who are directly in control over there were
the County Board souper as, although they had a layer
of management between them, they just they just are agreeing
to settle on a four billion dollar case against the

(51:38):
county and probation. Now they're protected from qualified personally because
they have qualified immunity or some type of immunity for legislatures, right,
and many the people they put in place over those
decades are also protected. But they could at any time
take those protections away from people. And so I'm saying

(52:00):
I believe that they would they would cover the officer
because they themselves have this great liability in La County
and it's coming to fruition. But you know, so hey,
so let's let I guess, let's wrap up, pair. I
think I just got a couple of minutes. How much
time we got left, Amanda got just we got twenty

(52:21):
three minutes, So we got we got two minutes. Okay,
So I did want to get into a little bit
Adam with you, a little bit off topic. You know,
where do you see we have a lot of stuff
going on in terms of liability for police officers, both
administratively and in civil court. Where do things things going?

(52:41):
Do you see the pendum sweeping swinging back and just
in your profession, you just see it swinging back in
more defensive law enforcement? Yes and no. And if it doesn't,
what do you see as the problems arising from that?

Speaker 3 (52:53):
If it doesn't, well, I don't see it's going against
law enforcement on a lot of sides, frankly, unfortunately. I mean,
I don't think it's right by the way, neither here
nor there, but I guess it's here somewhat. I'm about
the most conservative person in any event, and I can
tell you that this is bad the way it's going

(53:15):
against law enforcement. I mean, it's my profession. I defend
cops every day. I love what I do. The vast, vast,
vast majority do everything right every single day. The bad ones,
which are in the extreme minority, get a lot of
the airtime and unfortunately so but it is not getting
any better anytime soon for law enforcement. I tell frankly,

(53:36):
I have a lot of friends or cops and it's sad.
I tell them, get out of the car. You know,
if you still want to be a cop, get out
of the car. And that's just stop serving the community.
You know, we go behind a desk and you know,
until you retire. And I hate saying that, but that's
just the way it's going.

Speaker 1 (53:50):
And that's terrible because the first part of my career
I loved. It was almost all in a radio car
and I enjoyed it. So, hey, Adam, thank you for
joining my show. You go to Adam's website ww dot
Adam Armargel two ls law dot com and check out
checkout his a firm. If you need some help on
a personal injury thing, you know, check them out. And

(54:11):
if you're a police officer looking for some advice on
a case. Also check him out, Adam, thank you for
joining me.

Speaker 3 (54:17):
Thank you sir.

Speaker 1 (54:18):
All right, folks, thank you for joining briefing with the Chief.
Make sure you catch me. Next week we're gonna have
the great cc Woods back. CC Wood is going to
tell us all the dirt that is going on in
La County. And then, of course, the week after that,
we're gonna have Jennifer Shamansky back from Texas, and God,
I'm going to try and light up a guy named
Guido who's going to talk about elk out a point
two point zero and see what is going on with

(54:39):
the terrorist organization that we should have been focused on
for the last four years. Instead of chasing parents down
who are disrupting parent teachers meetings, we should have been
going after these terrorists. I think we're at the end
of our show. Amanda, you can take it away, Adam,
stick around for quick debrief, sure

Speaker 4 (55:03):
St