You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. As the nationwide protests in the wake of George Floyd's death bring attention to police misconduct, a legal doctrine that was rarely discussed before has come under attack from all directions. Qualified immunity as a doctrine developed by the Supreme Court that protects police from civil lawsuits alleging violations of constitutional rights.
At Wednesday's House Judiciary Committee hearing, civil rights lawyer and Floyd family attorney Benjamin Crump testified that qualified immunity leads to no accountability for police. The courts have interpreted this qualified immunity to almost give complete impunity to the police officers.
That's why nobody's ever held accountable. Opposition to the doctrine is so widespread that more than four hundred professional athletes CO which is an executive, including Tom Brady, Odell Beckham Jr. And Gregg Popovich, signed a letter asking Congress to pass legislation to eliminate qualified immunity for law enforcement and other public officials. Joining me as former federal prosecutor George Newhouse
of Richard's Carrington George explained what qualified immunity is. Qualified immunity is a legal doctrine created by the Court that basically holds that law enforcement and data officials have immunity, which means they can't be sued for their discretionary actions frequently actions taken by police officers in effecting and arrest, unless their actions violated clearly established constitutional law or other rights, and in effect that the officers acted outrageously. And it's
been used to basically defeat civil cases. It's not a defense in the criminal aspects of officers are charged, as the officers in Minneapolis are with criminal violations of law. Qualified immunity has no application, but it has been used frequently to make it very difficult pursue local officials for violating constitutional rights. So underqualified immunity, plants have to show
that officers violated clearly established rights. But has that hurdle become so high that courts are requiring prior court rulings with almost identical facts exactly, And this doctrine is, by the way, clearly on its way out. There's a bill pending in Congress, and as well the Supreme Court has nine count them nine separate cases pending certain review at
the Supreme Court. The doctrine seems to be on its way out, but it's been criticized because basically the way the law has now evolved, this clearly established law means there needs to be a court decision pretty much on we lawyers call on point, meaning completely applicable under the facts, so that if someone is accused of violating a constitutional rights but no court has ever said that specific behavior violates the Constitution, but then the officer would have a
qualified community and the court on emotional sumery judgment can dismissed the lawsuits that's been criticized as being ridiculous. Probably the best example of that is there's a Alabama case involving a practice in the prison to punish your discipline the prisoners, they would block them up literally to a hitching post out in the yard. Seems to be cruel,
unusual for most people. They sued saying that this form of punishment looking them up in the yard and during the heat of the summer day was cruel and usual and violated their constitutional rights. And the court said no, well, actually there's no court case saying that exactly. So the case was dismissed. So it's been taken to an absurd reach. The doctrine was created by the Supreme Court in the sixties. Tell Us about that case. The case involved out of
the civil rights cases. In nineteen seven, in a case called Pierson versus Ray, court allowed a police officer who arrested a group of ministers who wanted to go into the segregated waiting room and a bust station, and the Court said their look, the law in this case was unconstitutional. We later held that, but at the time the police officers could not possibly have known this, so we are giving them this qualified immunity. It's been applied a number
of times. There was a case called harloversus Fitzgerald where the Court basically changed the standard. That's when it created this new standard, which is that in order to lose the qualified immunity, the law had to have been clearly established by prevailing law, which basically means some of the
Court decisions. Two justices on opposite ends of the ideological spectrum, Justices Clarence Thomas and Sonya so To mayor have written about concerns with the doctrine for different reasons, which is why that it's clear that the doctor no longer enjoys really probably anyone on the Supreme Court who would want to uphold it, because on the right, the strict constructionists, led by Justice not only Roberts and Thomas, and I assume Corsien Kavanaugh, believe that any tinkering of a law,
modification by court of a federal statute is impermissible and improper. And of course Justice Soda, Mayora and probably Kagan don't believe that it's right to insulate the local officials from civil rights cases. So clearly the votes are against the doctrine. Congressman Justin Amage has introduced a bill to end qualified immunity. Does Congress have the authority to override what the Supreme
Court has ruled his law? A great question. It depends upon the Supreme courts the basis for their decision in this case qualified immunity. Absolutely, Congress can override it, and the reason for that is the Court decision going back to Pearson versus Ray and other decisions have been based
upon an interpretation of a Congressional statute. So when the Supreme Court says we interpret federal laws to say A B and C, Congress is absolutely entitled to disagree with them and overrule the Supreme Court bypass the law that repudiates that particular distinction. In this case, Congress is well and then its rights to eliminate qualified immunity from federal law.
They can say that wasn't our intent. Remember the law that was being amended as basically civil rights statutes, which is called secree, which basically reads that every person under color of law who violates the rights, privileges, or immunity secured by the Constitution shall be liable to the person who is injured. The statute does not apply for any express or implicit defenses. So when the court read into this decision, this limitation is defense. Congress absolutely has the
power to disagree by amending the statute. Those who support qualified immunities say that if you get rid of it, it will lead to nuisance lawsuits against police and others. Do you think that's true. There are several arguments against it, and there's no question that we need police officers, and we need police officers to have the courage and the fortitude to go out and do a dangerous job, which is arrest people who are breaking the law. And the
notion of qualified immunities. We want those officers to know, if you will, the we have their backs when they're acting responsibly, and that people aren't going to second guess them because something called the Ferguson effect is what we saw with one of these last outrageous abuses of police discretion, and that is that police officers don't feel that they're protected.
There's a concern that they will not go into the communities where there's lawbreaking occurring, and that they will sit in their patrol cars and the public will not be protected. So the notion that we want to deter people from bringing frivolous lawsuits, I think that doesn't have a lot
of salency, to be honest with you. But the more important argument is we do want to assure the police officers who are doing the right thing and acting responsibly in good faith, that they are not going to be pulled out of their cars and hauled them the civil courts and safing damages. Thanks George, that's George. Newhouse coming up next. Ice can no longer rest undocumented immigrants in New York court houses. I'm Jren Grosso and this is limber.
An undocumented immigrant may walk into a New York Coard House to pay a traffic ticket and walk out in handcuffs with an ICE agent. Since the Trump executive order in tween, federal immigration officers have been making more visits to New York courtrooms to arrest undocumented immigrants appearing there as victims, defendants, or witnesses. It's a practice so well known that it was the subject of the television show All Rise, where the judge objects to an ICE agent
being in her courtroom to arrest an illegal immigrant. This is a safe place for us to do our job, our duty. It's my duty to make sure that you don't use these courts as a stock pond, because people need to believe that this is a just place. If citizens people, then if people think they'll be deported, they won't show up. Witnesses will refuse to testify, defendants will skip bail, crimes will go on rect But a federal judge has put a stop to that. In New York.
On Wednesday, Judge jed Rakoff said the ICE practice was illegal, and he ordered ICE to stop arresting people on the grounds of any New York state courthouse or as they travel to a courthouse. Joining me is Leon Fresco, the former head of the Jostice Department's Office of Immigration Litigation and now a partner at Hollandon Knight. Leon tell us about Judge Raycoff's ruling in this lawsuit brought by the
New York Attorney General and the Brooklyn District Attorney. Well, the Draycoff's ruling, first of all, is a final ruling in the case. It's not a preliminary injunction. It stayed actually a summary judgment decision. It restricts ices ability to be able to go into courthouses to create what are called civil arrest of people who are trying to access
the courthouses. And what had happened was was there was a change from the time of the Obama administrators where the only people who were allowed to be picked up at court houses or public safety, national security risk, and what the Trump administration was doing in a two thousand and eighteen memo that said basically anybody could he picked
up in a courthouse. And so the judge ruled that that new memo both violated the statutes of how Ice is supposed to pick people up and also is arbitrary and capricius because it creates the problem for the state that otherwise wouldn't be created by simply allowing people to access the courts and picking them up in some other locations.
And what was the separation of powers issue? That was part of why he said that the memo violated the statute itself, because what he said was there is an implicit recognition in all federal statutes that they have to maintain a respect for federalist principles. And so unless Congress had written a statute that specifically said we authorize I to go into state courthouses to arrest people, the federal government has to accept federalist principles and state. Right, this
is state. So the undocumented immigrants are coming there for everything but immigration matters. Right. They're either there for traffic offenses or domestic violence issues, or civil lawsuits or criminal issues, but not immigration. And the point is, in all of those issues, the interests of the state is you'd rather have the person comes to court and address whatever the legal controversy is that that person is involved in that have them that comes to courts because they're afraid of
being picked up by ice. Ice can always get this person in some other ways, but the only way this person can address their legal obligations is to go to court. The subtext of all of this, why this is all happening, is ICE is upset in general that in New York State they don't have sort of the easy ways of accessing people for removal, the main one being that you can go to the jail and literally transfer someone from
a jail to ICE custody. And so for them, the court house a very good one because at that point, you know they don't have any weapons on them, you know that they are there, what times they're gonna be there, you know that they're there in a poster where they're not thinking about violence for the most part, and so that's what they want to try to accomplish. Is the second federal judge to make this kind of a decision against Ice. Last year, a judge in Massachusetts made a
similar decision and the government appealed it. Do you think Judge Rakoff's order will be appealed as well? Yes, I think this will be appealed, and I think this is given another one of the cases that will eventually make
its way up to the Supreme Court. But here I think the Supreme Court will actually have some condumdrum as to what they want to do, because they generally want to be respectful of faith rights, but they also want to be respectful of the president's ability to implement the immigration laws, and so here is they have a kind of nundrums as to who they would side with. But I would hope that they would realize that there are literally an infinite number of ways I can pick people
up for removal. Just eliminating this courthouse way wouldn't be such a huge imposition when it is balanced against the fact that people being deterred from going to court is just such a harm for the interests of the state in administering a justice system that that harm really does have to be considered. Why New York and Massachusetts to other states allow ice to just transfer immigrants from a
state or city prison to federal custody. Right What happens is this courthouse procedure is only put in place in cities and states where I doesn't have the jail route as a way to pick people up, And so you're not going to see a lot of places that file
these kinds of lawsuits. You know, you might end up seeing it in California one day, but The point is you're not gonna see too many places because a lot of places don't fit the criteria of I actually saying the only way that we can easily find people is
in the courthouses. One of the bigger problems with New York, not so much Massachusetts, but with New York is because it's so densely populated, a lot of these removal actions you have to go into big apartment buildings, you know, and you have to create a massive level of disruption, and that's what I doesn't want to do. Whereas kind of places that are more scattered out and easier to have these enforcement operations, then you don't need to go
as much into courthouses. We haven't heard much about immigration matters during the pandemic. What's been happening, you know, have has I slowed down? Has the Trump administration slowed down in what they're doing? Well, it all depends what you
wanna look at. So if you want to look at the numbers of detentions and the number of removals, those have decreased during the COVID pandemic because the facilities have basically have to be cut in half in terms of capacity to meet social distancing requirements with regard to COVID and removals have been down because a lot of countries aren't accepting flights right now into their countries to permit removal. So you have removals basically only occurring to Mexico and
to just beginning again into Central America. And that's about it on the removals for US. But at the same time, there are many proclamations and regulations that have been issued. So where as as of right now, you have a situation where first of all, nobody anywhere in the world, and if I'm talking about literally any country can go into a U. S consulate right now and get a
visa to visit the United States. All of our consulates are clothes that have been closed for the last four months, and it's not clear when even one consulate and even you know, like for instance, New Zealand doesn't have coronavirus in New Zealand anymore, and yet the consulate is closed. And so the question is why is that and when are some of these consulates going to reopen again. So
that's the first thing that happened. Second of all, we have travel bands that almost half the world now when you consider Europe, China, and now some parts of you know, South America, including Brazil. You start to see that you can't even travel from most places to the United States, and the Canadian border is closed, and the Mexican border
is closed, and so you have that. And then in addition to that, now you have new rules that have prevented employment based Green cards from being granted in most categories to people who are outside the United States. And there's about to be new retrictions put in place for even non immigrant work visa programs. These are the short term work programs that allow people to fill needs that
they can't find in the United States. Plus, just yesterday, there was a one see one page rule that was issued on asylum that makes it almost impossible to obtain asylum in the United States because if you cross through any other country before arriving in the United States, that's going to be held against you in order to get asylum. And so that would basically mean you'd have to take a direct light into the United States in order to
obtain asylum. That is about going in for notice and common and it sets to go into effect after the notice and common period is over, so then it seems that President Trump did keep his promise in the area of immigration of cutting down on immigration. Right at the moment, it is very virtually impossible for any human being from a foreign country to enter the United States. When you add up the amalgamation of all of the different bands and closures that have occurred in the system, it is
basically impossible to enter the United States. And the question is, yes, there's a COVID pandemic going on right now, so that has to be taken into account. But at some point, these these bands actually end up becoming counterproductive to the extent that people want to come to actually open businesses here and invest in the United States, and even those individuals are being kept out, then the question becomes, what
what is the purpose of that band? If you can actually show that the person doesn't have coronavirus, why are you keeping them out? At this point, the Docta case is still pending at the Supreme Court. There's been no decision, despite the fact that it is one of the earliest
cases that would argued this term. Should we read anything into the fact that the Docta decision has not been announced, Yes, I certainly have a a fear that The reason that the decision is taking so long is because the justices who are on the side of maintaining DOCCA want to keep the decision out for as long as possible because they know that this the program is going to be resended. That would be my guest, but obviously that is still
a guess. I don't know this for sure, but I feel as if if the program we're going to be maintained, then the decision would have just been ensued over the course of the ordinary. But now you have individuals saying, don't even issue the decision this term, move it into
the next term. You're seeing some of the advocacy happening now because people are saying, the last thing that the United States can can tolerate right now is get another sort of highly charged political issue working its way into into the framework of all of these other highly started political issues we're seeing right now. Thanks le On. That's Leon Fresco of Holland and Knight. I'm Johns and this is stoner