Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: As the nationwide protests in the wake of George Floyd's
Speaker 1: death bring attention to police misconduct, a legal doctrine that
Speaker 1: was rarely discussed before has come under attack from all directions.
Speaker 1: Qualified immunity as a doctrine developed by the Supreme Court
Speaker 1: that protects police from civil lawsuits alleging violations of constitutional rights.
Speaker 1: At Wednesday's House Judiciary Committee hearing, civil rights lawyer and
Speaker 1: Floyd family attorney Benjamin Crump testified that qualified immunity leads
Speaker 1: to no accountability for police. The courts have interpreted this
Speaker 1: qualified immunity to almost give complete impunity to the police officers.
Speaker 1: That's why nobody's ever held accountable. Opposition to the doctrine
Speaker 1: is so widespread that more than four hundred professional athletes
Speaker 1: CO which is an executive, including Tom Brady, Odell Beckham Jr.
Speaker 1: And Gregg Popovich, signed a letter asking Congress to pass
Speaker 1: legislation to eliminate qualified immunity for law enforcement and other
Speaker 1: public officials. Joining me as former federal prosecutor George Newhouse
Speaker 1: of Richard's Carrington George explained what qualified immunity is. Qualified
Speaker 1: immunity is a legal doctrine created by the Court that
Speaker 1: basically holds that law enforcement and data officials have immunity,
Speaker 1: which means they can't be sued for their discretionary actions
Speaker 1: frequently actions taken by police officers in effecting and arrest,
Speaker 1: unless their actions violated clearly established constitutional law or other rights,
Speaker 1: and in effect that the officers acted outrageously. And it's
Speaker 1: been used to basically defeat civil cases. It's not a
Speaker 1: defense in the criminal aspects of officers are charged, as
Speaker 1: the officers in Minneapolis are with criminal violations of law.
Speaker 1: Qualified immunity has no application, but it has been used
Speaker 1: frequently to make it very difficult pursue local officials for
Speaker 1: violating constitutional rights. So underqualified immunity, plants have to show
Speaker 1: that officers violated clearly established rights. But has that hurdle
Speaker 1: become so high that courts are requiring prior court rulings
Speaker 1: with almost identical facts exactly, And this doctrine is, by
Speaker 1: the way, clearly on its way out. There's a bill
Speaker 1: pending in Congress, and as well the Supreme Court has
Speaker 1: nine count them nine separate cases pending certain review at
Speaker 1: the Supreme Court. The doctrine seems to be on its
Speaker 1: way out, but it's been criticized because basically the way
Speaker 1: the law has now evolved, this clearly established law means
Speaker 1: there needs to be a court decision pretty much on
Speaker 1: we lawyers call on point, meaning completely applicable under the facts,
Speaker 1: so that if someone is accused of violating a constitutional
Speaker 1: rights but no court has ever said that specific behavior
Speaker 1: violates the Constitution, but then the officer would have a
Speaker 1: qualified community and the court on emotional sumery judgment can
Speaker 1: dismissed the lawsuits that's been criticized as being ridiculous. Probably
Speaker 1: the best example of that is there's a Alabama case
Speaker 1: involving a practice in the prison to punish your discipline
Speaker 1: the prisoners, they would block them up literally to a
Speaker 1: hitching post out in the yard. Seems to be cruel,
Speaker 1: unusual for most people. They sued saying that this form
Speaker 1: of punishment looking them up in the yard and during
Speaker 1: the heat of the summer day was cruel and usual
Speaker 1: and violated their constitutional rights. And the court said no, well,
Speaker 1: actually there's no court case saying that exactly. So the
Speaker 1: case was dismissed. So it's been taken to an absurd reach.
Speaker 1: The doctrine was created by the Supreme Court in the sixties.
Speaker 1: Tell Us about that case. The case involved out of
Speaker 1: the civil rights cases. In nineteen seven, in a case
Speaker 1: called Pierson versus Ray, court allowed a police officer who
Speaker 1: arrested a group of ministers who wanted to go into
Speaker 1: the segregated waiting room and a bust station, and the
Speaker 1: Court said their look, the law in this case was unconstitutional.
Speaker 1: We later held that, but at the time the police
Speaker 1: officers could not possibly have known this, so we are
Speaker 1: giving them this qualified immunity. It's been applied a number
Speaker 1: of times. There was a case called harloversus Fitzgerald where
Speaker 1: the Court basically changed the standard. That's when it created
Speaker 1: this new standard, which is that in order to lose
Speaker 1: the qualified immunity, the law had to have been clearly
Speaker 1: established by prevailing law, which basically means some of the
Speaker 1: Court decisions. Two justices on opposite ends of the ideological spectrum,
Speaker 1: Justices Clarence Thomas and Sonya so To mayor have written
Speaker 1: about concerns with the doctrine for different reasons, which is
Speaker 1: why that it's clear that the doctor no longer enjoys
Speaker 1: really probably anyone on the Supreme Court who would want
Speaker 1: to uphold it, because on the right, the strict constructionists,
Speaker 1: led by Justice not only Roberts and Thomas, and I
Speaker 1: assume Corsien Kavanaugh, believe that any tinkering of a law,
Speaker 1: modification by court of a federal statute is impermissible and improper.
Speaker 1: And of course Justice Soda, Mayora and probably Kagan don't
Speaker 1: believe that it's right to insulate the local officials from
Speaker 1: civil rights cases. So clearly the votes are against the doctrine.
Speaker 1: Congressman Justin Amage has introduced a bill to end qualified immunity.
Speaker 1: Does Congress have the authority to override what the Supreme
Speaker 1: Court has ruled his law? A great question. It depends
Speaker 1: upon the Supreme courts the basis for their decision in
Speaker 1: this case qualified immunity. Absolutely, Congress can override it, and
Speaker 1: the reason for that is the Court decision going back
Speaker 1: to Pearson versus Ray and other decisions have been based
Speaker 1: upon an interpretation of a Congressional statute. So when the
Speaker 1: Supreme Court says we interpret federal laws to say A
Speaker 1: B and C, Congress is absolutely entitled to disagree with
Speaker 1: them and overrule the Supreme Court bypass the law that
Speaker 1: repudiates that particular distinction. In this case, Congress is well
Speaker 1: and then its rights to eliminate qualified immunity from federal law.
Speaker 1: They can say that wasn't our intent. Remember the law
Speaker 1: that was being amended as basically civil rights statutes, which
Speaker 1: is called secree, which basically reads that every person under
Speaker 1: color of law who violates the rights, privileges, or immunity
Speaker 1: secured by the Constitution shall be liable to the person
Speaker 1: who is injured. The statute does not apply for any
Speaker 1: express or implicit defenses. So when the court read into
Speaker 1: this decision, this limitation is defense. Congress absolutely has the
Speaker 1: power to disagree by amending the statute. Those who support
Speaker 1: qualified immunities say that if you get rid of it,
Speaker 1: it will lead to nuisance lawsuits against police and others.
Speaker 1: Do you think that's true. There are several arguments against it,
Speaker 1: and there's no question that we need police officers, and
Speaker 1: we need police officers to have the courage and the
Speaker 1: fortitude to go out and do a dangerous job, which
Speaker 1: is arrest people who are breaking the law. And the
Speaker 1: notion of qualified immunities. We want those officers to know,
Speaker 1: if you will, the we have their backs when they're
Speaker 1: acting responsibly, and that people aren't going to second guess
Speaker 1: them because something called the Ferguson effect is what we
Speaker 1: saw with one of these last outrageous abuses of police discretion,
Speaker 1: and that is that police officers don't feel that they're protected.
Speaker 1: There's a concern that they will not go into the
Speaker 1: communities where there's lawbreaking occurring, and that they will sit
Speaker 1: in their patrol cars and the public will not be protected.
Speaker 1: So the notion that we want to deter people from
Speaker 1: bringing frivolous lawsuits, I think that doesn't have a lot
Speaker 1: of salency, to be honest with you. But the more
Speaker 1: important argument is we do want to assure the police
Speaker 1: officers who are doing the right thing and acting responsibly
Speaker 1: in good faith, that they are not going to be
Speaker 1: pulled out of their cars and hauled them the civil
Speaker 1: courts and safing damages. Thanks George, that's George. Newhouse coming
Speaker 1: up next. Ice can no longer rest undocumented immigrants in
Speaker 1: New York court houses. I'm Jren Grosso and this is limber.
Speaker 1: An undocumented immigrant may walk into a New York Coard
Speaker 1: House to pay a traffic ticket and walk out in
Speaker 1: handcuffs with an ICE agent. Since the Trump executive order
Speaker 1: in tween, federal immigration officers have been making more visits
Speaker 1: to New York courtrooms to arrest undocumented immigrants appearing there
Speaker 1: as victims, defendants, or witnesses. It's a practice so well
Speaker 1: known that it was the subject of the television show
Speaker 1: All Rise, where the judge objects to an ICE agent
Speaker 1: being in her courtroom to arrest an illegal immigrant. This
Speaker 1: is a safe place for us to do our job,
Speaker 1: our duty. It's my duty to make sure that you
Speaker 1: don't use these courts as a stock pond, because people
Speaker 1: need to believe that this is a just place. If
Speaker 1: citizens people, then if people think they'll be deported, they
Speaker 1: won't show up. Witnesses will refuse to testify, defendants will
Speaker 1: skip bail, crimes will go on rect But a federal
Speaker 1: judge has put a stop to that. In New York.
Speaker 1: On Wednesday, Judge jed Rakoff said the ICE practice was illegal,
Speaker 1: and he ordered ICE to stop arresting people on the
Speaker 1: grounds of any New York state courthouse or as they
Speaker 1: travel to a courthouse. Joining me is Leon Fresco, the
Speaker 1: former head of the Jostice Department's Office of Immigration Litigation
Speaker 1: and now a partner at Hollandon Knight. Leon tell us
Speaker 1: about Judge Raycoff's ruling in this lawsuit brought by the
Speaker 1: New York Attorney General and the Brooklyn District Attorney. Well,
Speaker 1: the Draycoff's ruling, first of all, is a final ruling
Speaker 1: in the case. It's not a preliminary injunction. It stayed
Speaker 1: actually a summary judgment decision. It restricts ices ability to
Speaker 1: be able to go into courthouses to create what are
Speaker 1: called civil arrest of people who are trying to access
Speaker 1: the courthouses. And what had happened was was there was
Speaker 1: a change from the time of the Obama administrators where
Speaker 1: the only people who were allowed to be picked up
Speaker 1: at court houses or public safety, national security risk, and
Speaker 1: what the Trump administration was doing in a two thousand
Speaker 1: and eighteen memo that said basically anybody could he picked
Speaker 1: up in a courthouse. And so the judge ruled that
Speaker 1: that new memo both violated the statutes of how Ice
Speaker 1: is supposed to pick people up and also is arbitrary
Speaker 1: and capricius because it creates the problem for the state
Speaker 1: that otherwise wouldn't be created by simply allowing people to
Speaker 1: access the courts and picking them up in some other locations.
Speaker 1: And what was the separation of powers issue? That was
Speaker 1: part of why he said that the memo violated the
Speaker 1: statute itself, because what he said was there is an
Speaker 1: implicit recognition in all federal statutes that they have to
Speaker 1: maintain a respect for federalist principles. And so unless Congress
Speaker 1: had written a statute that specifically said we authorize I
Speaker 1: to go into state courthouses to arrest people, the federal
Speaker 1: government has to accept federalist principles and state. Right, this
Speaker 1: is state. So the undocumented immigrants are coming there for
Speaker 1: everything but immigration matters. Right. They're either there for traffic
Speaker 1: offenses or domestic violence issues, or civil lawsuits or criminal issues,
Speaker 1: but not immigration. And the point is, in all of
Speaker 1: those issues, the interests of the state is you'd rather
Speaker 1: have the person comes to court and address whatever the
Speaker 1: legal controversy is that that person is involved in that
Speaker 1: have them that comes to courts because they're afraid of
Speaker 1: being picked up by ice. Ice can always get this
Speaker 1: person in some other ways, but the only way this
Speaker 1: person can address their legal obligations is to go to court.
Speaker 1: The subtext of all of this, why this is all happening,
Speaker 1: is ICE is upset in general that in New York
Speaker 1: State they don't have sort of the easy ways of
Speaker 1: accessing people for removal, the main one being that you
Speaker 1: can go to the jail and literally transfer someone from
Speaker 1: a jail to ICE custody. And so for them, the
Speaker 1: court house a very good one because at that point,
Speaker 1: you know they don't have any weapons on them, you
Speaker 1: know that they are there, what times they're gonna be there,
Speaker 1: you know that they're there in a poster where they're
Speaker 1: not thinking about violence for the most part, and so
Speaker 1: that's what they want to try to accomplish. Is the
Speaker 1: second federal judge to make this kind of a decision
Speaker 1: against Ice. Last year, a judge in Massachusetts made a
Speaker 1: similar decision and the government appealed it. Do you think
Speaker 1: Judge Rakoff's order will be appealed as well? Yes, I
Speaker 1: think this will be appealed, and I think this is
Speaker 1: given another one of the cases that will eventually make
Speaker 1: its way up to the Supreme Court. But here I
Speaker 1: think the Supreme Court will actually have some condumdrum as
Speaker 1: to what they want to do, because they generally want
Speaker 1: to be respectful of faith rights, but they also want
Speaker 1: to be respectful of the president's ability to implement the
Speaker 1: immigration laws, and so here is they have a kind
Speaker 1: of nundrums as to who they would side with. But
Speaker 1: I would hope that they would realize that there are
Speaker 1: literally an infinite number of ways I can pick people
Speaker 1: up for removal. Just eliminating this courthouse way wouldn't be
Speaker 1: such a huge imposition when it is balanced against the
Speaker 1: fact that people being deterred from going to court is
Speaker 1: just such a harm for the interests of the state
Speaker 1: in administering a justice system that that harm really does
Speaker 1: have to be considered. Why New York and Massachusetts to
Speaker 1: other states allow ice to just transfer immigrants from a
Speaker 1: state or city prison to federal custody. Right What happens
Speaker 1: is this courthouse procedure is only put in place in
Speaker 1: cities and states where I doesn't have the jail route
Speaker 1: as a way to pick people up, And so you're
Speaker 1: not going to see a lot of places that file
Speaker 1: these kinds of lawsuits. You know, you might end up
Speaker 1: seeing it in California one day, but The point is
Speaker 1: you're not gonna see too many places because a lot
Speaker 1: of places don't fit the criteria of I actually saying
Speaker 1: the only way that we can easily find people is
Speaker 1: in the courthouses. One of the bigger problems with New York,
Speaker 1: not so much Massachusetts, but with New York is because
Speaker 1: it's so densely populated, a lot of these removal actions
Speaker 1: you have to go into big apartment buildings, you know,
Speaker 1: and you have to create a massive level of disruption,
Speaker 1: and that's what I doesn't want to do. Whereas kind
Speaker 1: of places that are more scattered out and easier to
Speaker 1: have these enforcement operations, then you don't need to go
Speaker 1: as much into courthouses. We haven't heard much about immigration
Speaker 1: matters during the pandemic. What's been happening, you know, have
Speaker 1: has I slowed down? Has the Trump administration slowed down
Speaker 1: in what they're doing? Well, it all depends what you
Speaker 1: wanna look at. So if you want to look at
Speaker 1: the numbers of detentions and the number of removals, those
Speaker 1: have decreased during the COVID pandemic because the facilities have
Speaker 1: basically have to be cut in half in terms of
Speaker 1: capacity to meet social distancing requirements with regard to COVID
Speaker 1: and removals have been down because a lot of countries
Speaker 1: aren't accepting flights right now into their countries to permit removal.
Speaker 1: So you have removals basically only occurring to Mexico and
Speaker 1: to just beginning again into Central America. And that's about
Speaker 1: it on the removals for US. But at the same time,
Speaker 1: there are many proclamations and regulations that have been issued.
Speaker 1: So where as as of right now, you have a
Speaker 1: situation where first of all, nobody anywhere in the world,
Speaker 1: and if I'm talking about literally any country can go
Speaker 1: into a U. S consulate right now and get a
Speaker 1: visa to visit the United States. All of our consulates
Speaker 1: are clothes that have been closed for the last four months,
Speaker 1: and it's not clear when even one consulate and even
Speaker 1: you know, like for instance, New Zealand doesn't have coronavirus
Speaker 1: in New Zealand anymore, and yet the consulate is closed.
Speaker 1: And so the question is why is that and when
Speaker 1: are some of these consulates going to reopen again. So
Speaker 1: that's the first thing that happened. Second of all, we
Speaker 1: have travel bands that almost half the world now when
Speaker 1: you consider Europe, China, and now some parts of you know,
Speaker 1: South America, including Brazil. You start to see that you
Speaker 1: can't even travel from most places to the United States,
Speaker 1: and the Canadian border is closed, and the Mexican border
Speaker 1: is closed, and so you have that. And then in
Speaker 1: addition to that, now you have new rules that have
Speaker 1: prevented employment based Green cards from being granted in most
Speaker 1: categories to people who are outside the United States. And
Speaker 1: there's about to be new retrictions put in place for
Speaker 1: even non immigrant work visa programs. These are the short
Speaker 1: term work programs that allow people to fill needs that
Speaker 1: they can't find in the United States. Plus, just yesterday,
Speaker 1: there was a one see one page rule that was
Speaker 1: issued on asylum that makes it almost impossible to obtain
Speaker 1: asylum in the United States because if you cross through
Speaker 1: any other country before arriving in the United States, that's
Speaker 1: going to be held against you in order to get asylum.
Speaker 1: And so that would basically mean you'd have to take
Speaker 1: a direct light into the United States in order to
Speaker 1: obtain asylum. That is about going in for notice and
Speaker 1: common and it sets to go into effect after the
Speaker 1: notice and common period is over, so then it seems
Speaker 1: that President Trump did keep his promise in the area
Speaker 1: of immigration of cutting down on immigration. Right at the moment,
Speaker 1: it is very virtually impossible for any human being from
Speaker 1: a foreign country to enter the United States. When you
Speaker 1: add up the amalgamation of all of the different bands
Speaker 1: and closures that have occurred in the system, it is
Speaker 1: basically impossible to enter the United States. And the question is, yes,
Speaker 1: there's a COVID pandemic going on right now, so that
Speaker 1: has to be taken into account. But at some point,
Speaker 1: these these bands actually end up becoming counterproductive to the
Speaker 1: extent that people want to come to actually open businesses
Speaker 1: here and invest in the United States, and even those
Speaker 1: individuals are being kept out, then the question becomes, what
Speaker 1: what is the purpose of that band? If you can
Speaker 1: actually show that the person doesn't have coronavirus, why are
Speaker 1: you keeping them out? At this point, the Docta case
Speaker 1: is still pending at the Supreme Court. There's been no decision,
Speaker 1: despite the fact that it is one of the earliest
Speaker 1: cases that would argued this term. Should we read anything
Speaker 1: into the fact that the Docta decision has not been announced, Yes,
Speaker 1: I certainly have a a fear that The reason that
Speaker 1: the decision is taking so long is because the justices
Speaker 1: who are on the side of maintaining DOCCA want to
Speaker 1: keep the decision out for as long as possible because
Speaker 1: they know that this the program is going to be resended.
Speaker 1: That would be my guest, but obviously that is still
Speaker 1: a guess. I don't know this for sure, but I
Speaker 1: feel as if if the program we're going to be maintained,
Speaker 1: then the decision would have just been ensued over the
Speaker 1: course of the ordinary. But now you have individuals saying,
Speaker 1: don't even issue the decision this term, move it into
Speaker 1: the next term. You're seeing some of the advocacy happening
Speaker 1: now because people are saying, the last thing that the
Speaker 1: United States can can tolerate right now is get another
Speaker 1: sort of highly charged political issue working its way into
Speaker 1: into the framework of all of these other highly started
Speaker 1: political issues we're seeing right now. Thanks le On. That's
Speaker 1: Leon Fresco of Holland and Knight. I'm Johns and this
Speaker 1: is stoner