The Complicated Web of Immunities That Makes Accountability So Difficult

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Thomas: They're just kids. They're 38-year-old kids, you know, just doing Nazi stuff. You can't hold them accused. You're going to ruin their life for this.

0:00:17 Jenessa: I'm putting this individual on trial for a crime he committed in our state that is outside the bounds of what the Fed ever authorized him to do.

0:00:42 Thomas: Hello and welcome to Opening Arguments. This is episode 1229. I'm Thomas Smith. Well, as you're no doubt aware, there was another awful, terrible, heartbreaking public execution over the weekend. I don't know if it's just the particulars of this one or just the cumulative effect, but boy, this one sure hit me hard. I've been trying to record a Serious Inquiries Only on it, but I've tried and failed a lot of times. It's hard to even have the words. So I'm going to probably keep trying for that. Keep an eye on that feed if you'd like to hear my thoughts. But I wanted to note that Jenessa and I actually recorded this after the last public execution, not immediately after, some time had passed. Jenessa thought, and she was absolutely right, that it would be great to take us on a deep dive on not just qualified immunity, which I think we all know something about, but really clarifying a bunch of different things around the theme of holding the government accountable or government agents accountable at different levels, state, federal, all that stuff. I just wanted to note though that this was definitely recorded at a different time before the events of this weekend, back in the carefree days of like a week ago, relatively speaking. All right, I'll hand it right over to Jenessa and I. Oh, and important to note, this was a two -parter by design. Jenessa had so much to teach us. Because of kind of the way the schedule works, unfortunately, I have to go Monday to Monday, which I don't love. But that means you're going to have to wait a week for part two. For what it's worth, part two is up on patreon.com/law right now. Just trying to do something extra for the patrons there as a thank you for supporting. Today really builds some conceptual framework and then part two deals with more like actual cases and even debunks some some misinformation around this that was spread among the left, among our very own Facebook group, not maliciously, but just worth clarifying. All right, I'll throw it on over to Jenessa and I for this again, recorded before the weekend, deep dive on qualified immunity and holding government agents accountable. Jenessa, how are you doing?

0:02:44 Jenessa: I'm doing pretty good hanging in there.

0:02:47 Thomas: Are you feeling qualified to talk about today's topic? I don't know.

0:02:51 Jenessa: I am. We are in my bread and butter today. Well, partly. The criminal stuff will send me a little out of my comfort zone. But suing government officials, my favorite.

0:03:05 Thomas: Yeah. I'm really excited because these deep dives have have been, you know, not usually like the news. We're making a slight exception, except that like it's really about this topic in general. And I think it's very important because it's clear from the little bit of recording I did with Matt that I did not understand how exactly this qualified immunity stuff works and doesn't work. And it turns out there's a whole lot to this that I think it is really, really critical that we know about right now and learn about and get on the the show. And it sounds like this is something that you are fresh on and have done a deep dive into.

0:03:38 Jenessa: Yeah, so I took a whole class on constitutional torts, which means like suing for violations of your constitutional rights. And we spent weeks on qualified immunity. Immunity and at the end of that our professor who's a judge himself he ran us through like just for fun like a little pop quiz of 15 cases and said like just up or down do you think this person was granted qualified immunity. I won I did in the class of 30 people I got 9 out of 15 right, which is like two better than chance.

0:04:06 Thomas: I love it. You won? That reminds me, I've mentioned it before, but that reminds me of business school and tax accounting is so effing hard that for tax accounting class, we had a take -home exam for which she gave us an extra week just because I had one of the higher scores that it was like a C minus. Take home open book exam for weeks. That's like why we have CPAs. It's so freaking complicated to answer all these questions just right. And I remember being like, God, I don't want to go into that area of study.

0:04:50 Thomas: I don' t want to have accounting. That' s not the one I want to do. But like, that' s how hard it was. And, you know, I usually do very well on tests. I' m not a, so it was, like, wow, I had one of the higher scores and it was I want want to say it was like a, maybe I floated into B minus. I can't remember. It was something, something, but it wasn't good. Like it was not good.

0:05:08 Thomas: And so it's like that kind of thing where, where you were the champion of your class with a, what we normally wouldn't be proud of grades wise, I'm sure.

0:05:16 Jenessa: Yeah, I was one and a half above chance out of 15.

0:05:19 Thomas: So just goes to show how complicated this is.

0:05:22 Jenessa: Exactly. You know, that is not like, oh, and all of us are a bunch of dummies who didn't pay attention. The whole point of that was to illustrate it's hard for us and really it's for judges. Why are these judges not coming to conclusions that seem clear to law students who spent weeks studying this?

0:05:42 Thomas: Well, I will also say it's a good sign because I think it would be a bad sign if the class was like, can't ever get anything from cops, end of class, done. You know, like it's kind of good. It's encouraging that that that's not what it is. Now, we'll talk about, obviously, in practical speaking, and of course, there's still the distinction between federal and state and all this stuff that I've tried to keep in my head, but it's been complicated. I'm looking forward to getting a real deep dive on it. So I think we're all going to be able to, by the time we're done with this, I think we'll all be able to way better understand certain current events.

0:06:11 Jenessa: Yeah, hopefully. Hopefully.

0:06:12 Thomas: So we'll take our first break and then we'll get to it. Avoid that break at patreon.com. Get the goodies, the lot awful movies, and the no ads. It's a great place to be and support the show support good journalism like this good coverage like this that actually gets in deep so after this break we'll uh we'll start talking about cops the classroom is yours where do you want to begin with us

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0:06:37 Jenessa: So I want to start in the place that seems the least related of just two civilians getting in a fight. But I think we need to start at the basics because probably 80 % of this is going to sound familiar to you. We got to lay out these puzzle pieces in the right order for it to suddenly make sense why any of this exists. Even if we don't like it, like how did we get here? Here why did we get here why am I filing a lawsuit against someone for something they did under color of law in a state in a federal court in their personal capacity and not their official capacity that's weird right let's just say we're gonna talk about two people you and me we're we don't work for the government you come visit me we go to a bar we get in a big fight you punch me in the the face totally yeah it could mess things up that you're from another state so for today you are an honorary New Yorker yeah

0:07:29 Thomas: Here sounds just like what happens when we see each other for real oh okay oh you know I like that I've always wanted to be that. I'm walking here.

0:07:43 Jenessa: How did I know salt

0:07:45 Thomas: Let's get some coffee. Should we get some coffee? The words where it really comes out, you mentioned that one time. Coffee and then what's the other one? There was another one you said. Yeah, salt. Can I have some salt in my coffee? I want to be a New Yorker. Law. Law.

0:07:56 Jenessa: And unfortunately the word law I can't yeah

0:08:06 Thomas: But it's funny because I think maybe New Yorkers, I think it's better. Because I feel like for us out here, we get too casual with some of those vowels. It's just, it's lost all like shape. It's funny. My father-in-law has a story of when he was, I can't remember if he was traveling or he just met someone from England and he tried to say the word hawk and like, tell it like, yeah, it'S a hawk. And the guy was like, I don't, what, what is that? A hawk, you know, a hawk. And he had no idea. And he's like, oh, a HawK to somebody who has that accent. Like that really does make a difference.

0:08:37 Thomas: So I'm going to go ahead and be a New Yorker and let's get into it. I punched you because you made fun of my accent just now.

0:08:42 Jenessa: Exactly. There's two things that could happen. I could sue you civilly for battery. In New York, that's going to be common law. So you'll have to read cases to find the elements. We never like wrote it down into our laws.

0:08:53 Thomas: Yeah. Weird how that works.

0:08:54 Jenessa: And I'm going to have to, as the plaintiff, prove all the elements of this tort. Torts, it's, you know, suing people for personal injuries basically right

0:09:03 Thomas: Step one, was my accent actually bad? You know, did I have coffee for real? All that stuff. Okay.

0:09:09 Jenessa: Usually preponderance of the evidence is the standard so like convince the jury more likely than not the crime in New York is actually called assault it would be called battery most places so we'll for purposes of making it not confuse everyone we'll pretend New York calls it battery the way they would call it that everywhere else and then the tort is still battery.

0:09:21 Thomas: Assault. Yeah. There we go. Oh, yeah. Okay.

0:09:36 Jenessa: So good luck.

0:09:37 Thomas: So the crime is assault and the tort is battery. Oh, my God. You guys just do this to make sure you have jobs.

0:09:42 Jenessa: Yeah. Yeah and we still have our trial courts or supreme courts. So just like welcome to New York.

0:09:45 Thomas: Yep. Yep. Okay. All right. So right now you're just talking civil. You're suing me for, or did we get past that already?

0:09:53 Jenessa: I'll sue you for battery and a prosecutor will say we'll call it battery for everybody else. A prosecutor could prosecute you for battering. These have to be codified. So we have this in the penal law. All the elements can't be common law just because like due process. That would not be right if you don't know what the crime is. They're going to have to prove beyond a reasonable doubt. They met all the elements. Why am I pointing this out? Step one, right off the bat, if you're going to sue somebody for, you know, you get into an altercation with a cop, whatever, you're gonna sue them or criminally prosecute them, it could be, in many states it is, called the same thing and the elements are not the same. The intent requirement could be different you could have a state where the battery intent is general intent you're meant to be swinging your fists around and the criminal intent could be specific intent that you meant to hit someone or it could even be for a higher level like you meant to hit them and hurt them something like that it really really matters if you are looking at a civil case or a criminal case do not take what a judge said in a civil case and assume that affects what what would happen in

0:10:51 Thomas: Very important. Okay.

0:11:03 Jenessa: A prosecution. I'm seeing that all over the place. Yeah. Where's this going to happen? Almost always state court. Most of the bad things you do to a person exist in state law. We don't really have federal torts. We don'T really have Federal Common Law for the most part. Federal crimes are almost always like interstate things or national security. You know, it's not like a bar fight just does not have that level of importance to the Fed.

0:11:29 Thomas: Crossing state lines or stuff like that.

0:11:31 Jenessa: Right, right. I hate trafficking.

0:11:33 Thomas: That kind of thing. But then when it comes to drugs, they're like, oh, also, we just want to make a whole bunch of dumb crap. Federal crimes. There are guns, too, as well. Some of that's good. But yeah, point taken. There's no federal murder law or whatever. Ever.

0:11:45 Jenessa: Yeah. For the most part, not really. So without a federal issue, we're not going to federal court. We're stuck in state. That's going to become really important later on. Defenses. So, okay, I just prove all the elements. We're done. Not necessarily. You could try to say self -defense, for example. I hit you because I was trying to defend myself.

0:12:05 Jenessa: Some places, depending on the state, it might be in common law. It might be written down in the code.

0:12:12 Thomas: And what's it? The defense?

0:12:13 Jenessa: The self-defense, right.

0:12:14 Thomas: Self -defense. Okay.

0:12:15 Jenessa: So your state might have codified in the law what the elements of self -defence are, or it might just be a common law kind of thing. Your state might have it as a standard defense or an affirmative defense. That might change depending on whether it's civil or criminal. A standard defense just means like something that undermines the ability to prove an element. So Ohio has it as a standard defense. At trial, you raise any, you have a burden of production. Any evidence sufficient to sustain the defense tends to show that you might have been defending yourself. Really low burden. Now, essentially, the burden is going to be on the prosecutor or the plaintiff. Essentially, it's like I got all the elements of a battery plus plus an extra element, and you weren't defending yourself. I got to prove that now.

0:13:12 Jenessa: If it's an affirmative defense, which it is in some states, that's like a legal justification for what you've done. It's a little risky because you're kind of admitting two things I would have had to prove. You're kind OF saying you did hit me.

0:13:24 Thomas: And it's a little tricky in a court to be like, didn't hit him, but if I did, he deserved it.

0:13:33 Jenessa: Yeah, like, I guess in theory, you know, in a pretrial motion, you could try that, but in front of a jury, like, I mean, come on.

0:13:38 Thomas: Yeah, exactly. It's kind of doesn't really work that well. Yeah.

0:13:41 Jenessa: So when you do that, I meet my burden. If I'm, you know, suing you, I prove to the jury, whatever, all the elements of a battery, the burden goes on to you and it'll be a very low burden, especially in a criminal case. We never put a defendant to a high burden, but you're going to say, well, here's the elements of self -defense and I met them. And it's usually something like I had a subjective fear. We're not not talking about lethal force at the moment so like I feared that I was going to be hurt that was an objectively reasonable fear my use of force was reasonable to stop the force against me and if you can do that to whatever the standard is the burden flips back to me and I gotta prove that's not true he abused it he went over the force or his fear wasn't reasonable or whatever some states allow an imperfect self -defense maybe you did have the subjective fear but you didn't have an objectively reasonable fear that

0:14:30 Thomas: It could make sense. All right.

0:14:48 Jenessa: Can reduce but not eliminate certain charges maybe that should take it from a murder to a manslaughter but like still you were objectively unreasonable in your fear so some states have it some states don't most of the time we're thinking about defenses happening at a trial. Some states have it in a pretrial motion.

0:15:04 Thomas: Oh, interesting.

0:15:04 Jenessa: So in Florida, self-defense is an affirmative defense. You have to raise it and you'll have some very low burden of proof in a criminal prosecution. But pretrial, you can raise a motion to dismiss and get the judge to say, as a matter of law, you met all the elements. You defended yourself. It was subjectively reasonable objectively reasonable blah blah blah and get the case dismissed it's like an immunity you're immune to prosecution this way stop it in its tracks so why am I bringing all this up

0:15:38 Thomas: Because we're still just in the you suing me for hitting you. Right. We're still just in that.

0:15:41 Jenessa: To civilians civilians or a cop a cop could of course raise self-defense, defense of others insanity whatever I'd be weird I haven't seen one but these are all defenses available to everybody, right? These could happen at all different stages. Very rarely, especially rarely in a criminal case, you could get a pretrial motion that says you can't bring a certain defense.

0:16:08 Jenessa: So maybe think about like insanity. Maybe the way your state does the insanity defense, it would negate specific intent but not general intent. Well, if the crime of battery is specific specific intent, but the civil tort is general, they might say, I'm not going to let you in this civil lawsuit waste everybody's time trying to prove I never meant to hurt anybody. I was insane. You don't have to have meant to her anybody. That's not a requirement of the law.

0:16:41 Jenessa: So no, that's a thing that can happen. It is pretty rare, especially think about a criminal case. The odds that a judge is going to say in advance I'm not going to let you ask a jury to consider that you might have been defending yourself yeah

0:16:58 Thomas: So it's gonna be a high bar.

0:17:00 Jenessa: Yeah like just let the jury see how silly your argument is you know they don't want this to get dismissed later because you should have been able to try so I think that's important because I see that come up sometimes times as like, oh, you know, if this was excessive force, they can't claim it's self -defense. And like maybe in a civil trial, but you really think at a criminal trial, they're not going to let them try to say it? Maybe if it's something like the person was unconscious and you knelt on their neck for nine minutes, maybe that would be a good time to say, I'm not going let a jury, no reasonable jury could call that self -defence. Maybe that's an option, right?

0:17:40 Thomas: Did that happen in that trial or are you just giving an example?

0:17:43 Jenessa: I'm giving you an example where I would have said that you know I'm not actually sure if he tried to call it I doubt he triedto call it self -defense usually they reach for reasonable force is a totally separate thing cops are authorized to use reasonable force for arrests you know so he probably reached for that um and clearly that was not what was found he was found guilty because that's not reasonable so So that's all the stuff you could hit, cop or not, two civilians, whatever. We have to think about the types of differences between criminal and civil, the types of defenses, when you could raise a defense, the fact that it's so different from one state to the next, the way you would do this. Looking at a federal case does not tell me very much about the state unless they told me like as a matter of constitutional law, you can't stop someone from raising whatever defense in whatever way. It's extremely complicated and state -specific if we're talking about a state criminal charge or a state civil lawsuit. Let's add in the cop factor.

0:17:46 Thomas: Yeah, yeah, yeah probably Probably not. Right, right, right. Great.

0:18:48 Jenessa: Instead, this person who came up to me at a bar and hit me was a cop, but they are off -duty. It is a totally personal issue. None of this analysis changes whatsoever. You don't become magically immune to stuff because you took the job, right?

0:19:05 Thomas: Right? So you essentially do get just treated like it's two civilians again? Yeah.

0:19:10 Jenessa: Yeah, yeah, pretty much. You're not 24 -7 a cop. If Governor Kathy Hochul came up to me in a bar and punched me, like, I'm not suing her in her official capacity. Like, that wasn't part of her job, I doubt. So, you know, that's just two people.

0:19:26 Thomas: And this is why another reason, correct me if I'm wrong, that the Trump immunity stuff was so insane, because it's like, it essentially, we have that now special rule for the president and no one else, pretty much. Let's say if somebody instead of the cop where we're saying, oh, you pretty much get treated as a civilian because you're just there drinking. Now it's like if it's the president, if he can just call it his official duties, then all of a sudden it's completely immune. I know I'm speaking broadly. And also, I don't even know that we're entirely sure how this will work practically because it's so stupid. But let me know if that point's roughly on track.

0:19:59 Thomas: That's another reason that that decision was so insane.

0:20:01 Jenessa: Hopefully it never comes up again, right. But like, how are we ever going to parse out what is and isn't official exactly.

0:20:11 Thomas: Without going through... Because they also prevented the ability to even do discovery on certain documents, even find out if this was the president just saying, you know what, I'm gonna F with Jenessa at a bar just for fun we don't even get to find that out because of their stupid decision sorry it's a tangent but kind of

0:20:29 Jenessa: No of course. If it's a defense at trial it's one thing but when it's an immunity that stops the lawsuit in its tracks we don't get to even talk about it and it's huge problem. There's some types of this where like executive you know the president and I think this might apply sometimes to like a governor. I think like like, sometimes with civil lawsuits, they will pause it until you're out of office, like, and they'll pause, you know, they'll toll statute of limitations, I think, if I remember this correctly. But, like nothing's, like off. We'll get to some of the immunities for things you do in your official capacity. But if it's just, like you are just on your personal time and you just get into personal scuffles, no, that's supposed to be an in theory with the Trump immunity decision that that would still be true but like when is he off duty

0:20:48 Thomas: Related yeah

0:21:19 Jenessa: They they kind of said he's never off duty so like we have to yeah

0:21:21 Thomas: As long as shouting campaign slogans while he's beating you then he's free to do it pretty much was their stupid decision but taking it back to police officers okay so what have we learned so if it's just a police officer beating you on his own time for fun because it's his hobby then he should be be treated as a civilian in that sense, pretty much. Right.

0:21:29 Jenessa: Ridiculous absolutely yeah yeah yeah now obviously in practice we worry about getting special treatment in an unofficial

0:21:47 Thomas: And he'll obviously shout, she was reaching for a gun while he's doing it. And then, you know, that complicates it. Yeah.

0:21:50 Jenessa: Way officially it shouldn't matter unofficially you might worry about it when do we actually start to change the analysis so let's say some government official they have to be a state actor to start getting certain immunities that apply to state actors so if they're on duty copping in uniform on the clock doing their job they're almost always a state factor even if they are abusing or exceeding their authority like Like that perceived state authority gave them the power to do what they did.

0:22:28 Jenessa: You would intervene in a kidnapping, but if you see somebody getting arrested, even if you're like, this feels like an illegal arrest, you're probably going to stand there and like film it or something. You're not going to run over there and try to rescue someone like it's a kidnapping. Right. So the perceived authority this person has is what's allowing them to abuse their authority. That can help us in a lawsuit to say this is a violation of my constitutional rights in a way that obviously you can't violate my rights that's your you don't work for the government but on the other hand it could start granting them certain immunities because they're now they're a government worker

0:23:07 Thomas: What do you call it when it's like aggravating factors or something for sentencing? Maybe what is it? What's that called? I forget which case I'm remembering, but the fact that they have that authority and it might've been that asshole cop who, who, uh, who killed George George Floyd, where it's like, not only did you kill him, but you should be a trusted authority. Like it's extra worse that you violated someone's rights because you had this power. And that to me seems like how, broadly speaking, it should work. Now, of course, there is, as always, like there is a, as you're, you know, I think gesturing to as well, like, there's a good purpose in this immunity in a lot of ways. Like if you're doing, if you've truly been ordered by the governor to do something, whatever, you know, your boss or whoever, a politician, hey, you got to evict this person because of something, something, and you're just doing police business and you'RE doing your job and youRE following those orders. It would be weird for that person to be able to like sue you civilly for like kicking them out of their house or something.

0:24:03 Jenessa: Exactly yeah and that's exactly where we're gonna end up with this whole debacle of of how we're going to get there needing to protect but not protect hold them to a higher standard but sometimes protect them from you know being able to do their job this is the inherent conflict right on duty even if they're abusing their authority we're gonna stamp state actor on them and sometimes that can really hurt their case and sometimes it can really help them get get immunities. If they're off duty, they can be a state actor still if they're acting under color of law. Also applied to civilians sometimes if you are in some specific circumstances. So if you want to learn more about the under color of law, me and Matt covered this in episode 1206 about the case that really established the concept. And then we talked more about it in episode 1212, which covered a case where that was a really the crux of the issue so if you want to check those out to learn more but basically it's the idea that even though you didn't have a badge on the authority of the state was backing your actions so it's kind of

0:25:17 Jenessa: Similar to being a state actor it's just like less official so

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0:25:24 Jenessa: Okay we've got somebody who's a state official that could grant them certain certain immunities. There's lots of kinds. Some of them are absolute immunities the case is just over if we get to this. So for example the speech and debate clause it's written in the constitution if you are a member of congress standing on the floor of congress debating a bill that absolute immunity from civil lawsuit and criminal prosecution we don't have to ask any more questions there's no like fact inquiry you try to file a lawsuit about that and it's just it's over. Judicial immunity is for civil damages, not criminal. And that would be, I am a judge. You are trying to sue me in relation to a decision I made in your case. We're done.

0:26:12 Thomas: That would be, that would be bad if you were able to do that.

0:26:17 Jenessa: Yeah, we're just kind of now we're in an infinite loop of lawsuit. Like it's not going to work. Right. And it's non -immune to criminals. So like if you said literally this was like based on on corruption, well, you could certainly get your case redone, thrown out. A prosecutor could prosecute them for all kinds of like criminal behavior associated with the corruption, but it's an absolute immunity. You will not get civil damages out of this. You Will Not Be Suing Them Personally. Lowercase qi, those are immunities where there's like a fact -specific, job-specific kind of question. Like, we don't just say, you are the governor and you did X and therefore lawsuits are over. We're going to have to ask, like, well, were you acting within the scope of your job? You know, that corruption thing could matter all of a sudden.

0:26:22 Thomas: That'll crash the simulation hmm it's what the qualified is doing

0:27:10 Jenessa: Exactly. That is what that means. There are multiple different types of people who could sometimes get qualified immunities. These immunities don't apply to injunctions. So, like you can always tell a judge like stop doing the thing you're doing it's it's about the like damages and things like that when people do illegal things you can always find a way to sue to stop them from doing the illegal thing immunities are affirmative defenses you raise them immediately they can often be waived so like if you just choose not to raise it or forget to raise states can waive their sovereign for an immunity by just on an individual basis, just not objecting to a lawsuit. But if you raise it, you raise it immediately. You stop the process. And the idea is like, I need to be able to do my job. I need not worry, you know, parole boards. They have immunity from damages for the outcomes of their decisions. Instead of just deciding you're ready to go back to society on the basis of you and what society needs. Now I'm worried about like, well, if you go rob a bank, I'm going to get sued by the bank.

0:28:22 Thomas: Right hmm

0:28:23 Jenessa: Now, I need to not worry about this. I get absolute immunity if I'm a parole board member making a parole decision. I can just stop the lawsuit in its tracks. I avoid not just the lawsuit, but the time and the cost and all of that. It also means the case is over with no no ruling on the merits. That'll be true for absolute and qualified. If you win, the case is over. We're done. So let's name some federal sovereign immunity. So this is the federal government. It's a couple of different things. Number one, you cannot sue the federal government in federal or state court. We are going to have some exceptions to that. That will include suing federal officials in their official capacity. So I can't say, well, I'm not suing the Department Health and Human Services. I'm suing Robert F. Kennedy Jr. in his official capacity. Like, okay, so you're suing the Department of Health and human services. Like that doesn't change anything.

0:29:24 Thomas: Not a not a one weird

0:29:26 Jenessa: Exactly. This functions like an absolute immunity. Hi, you're in state court suing The Department of health and Human services. I don't have jurisdiction over this. Done. You're sueing for civil damages against RFK Jr. In his official Capacity in a federal court. We're done here like this is not happening outside of the places where we've waived this it's just over it's like an absolute immunity it also means the federal sovereign immunity that you can't prosecute a federal official in state court same rationale that's like bringing the federal government into state court you could be saying like well you did what the federal government told you to do as part of your job and Tennessee is like that is actually a crime in Tennessee see.

0:29:58 Thomas: Trick hmm right

0:30:13 Jenessa: Is it? I'm not saying I agree with this idea. I am just saying this is the rationale behind the laws in general, right?

0:30:13 Thomas: Yeah I think it kind of has to work that way I think you could imagine a whole lot of southern states suing the federal government to have them still do racism stuff you know that kind of would have been what happened all during the the

0:30:32 Jenessa: Yeah. Yeah. It could be a huge problem, right. In general, this immunity is going to exist. Matt did a great job of explaining the exception for that prosecution, the way that basically you're going to prove the official was not acting in their official capacity. So I'm just prosecuting you as you. You know, if I'm driving through a state, I still have to follow their traffic laws, like just because I'm driven to my job, that doesn't change anything, right? It's a little more complicated than that. There can be edge cases that Matt went through, but that's how we can sometimes get around it in the criminal context. There's a similar thing for percival if I sue you in your personal capacity again it's not magic words I can't just be like no no I'm suing RFK jr in his personal capacity and he's just like for stuff

0:30:50 Thomas: 60s right yep

0:31:31 Jenessa: I did as a department head no if you can quickly show that it'll function like an absolute immunity throw it out it can sometimes almost feel like a qualified immunity because I we can get into like a kind of fact-y battle about like, no, no. He was acting outside the discretion of his position. And that means he's open to this kind of lawsuit.

0:31:53 Thomas: To our point earlier you'd have to do some amount of fact finding to know whether that was true

0:31:58 Jenessa: Yeah. So we're still in pre-trial motion land, but we're a little bit going to have to show a judge what the person did and why, like, what are the roles of their job and what's normally outside the role. It gets a little touchy sometimes this all comes from common law this is not in the constitution the federal sovereign immunity is not really in a statute we basically said like this was a tradition in english common law like the sovereign the king and we just kind of wrote it into case law this can go away immediately with federal statutes and we've done it we've selectively waived it with It's like the Federal Torts Claims Act lets you sue for some torts in some context.

0:32:47 Thomas: Oh and this is still civil though this is we're all talking about so yeah okay

0:32:51 Jenessa: We're still civil. Yeah, yeah. So for the criminal, it's just the stuff Matt talked about. For state court, you have to show they were outside their official capacity. For federal, I think you can just prosecute a federal official for a federal crime like normal. I don't think it affects anything. Anything for civil really for all of this it's it's just common law yeah it's not like really written down anywhere congress could pass a federal law tomorrow that's just like nah we're not doing that and they did that with the federal torts claims act they said all right fine you can sue us for these torts you have to sue like in the official capacity because the u .s government is going to stand up and defend this person and you haveと do it in federal court essentially because because they have this absolute immunity, they're getting to define the boundaries of it.

0:33:15 Thomas: Hmm did not know that okay wow

0:33:44 Jenessa: They could just get rid of it tomorrow.

0:33:38 Thomas: Hmm right so this statute like sort of just waved that a little bit just kind of they're like Like, all right, we'll let you sue us sometimes because there's not really any other way to ensure your civil rights, I think, was probably the origin of some of that, right?

0:33:49 Jenessa: Just cause. Yeah, exactly. So for the torts one, it's just literally like you could sue for, they very specifically said not defamation, not that one. Certain ones, they were like, oh, you know, we'll get to it. But like battery is allowed for law enforcement, for federal law enforcement. We'll allow that one, but not for other people. So if somehow, somehow, some way, RFK Jr. punched me in the face as part of his official capacity.

0:34:26 Thomas: So, like, the comptroller can punch you, but the cops can't. Okay.

0:34:30 Jenessa: I guess if it was in his personal capacity, you'd be fine. If he somehow did it in his official capacity, then no.

0:34:39 Thomas: Oh, like you were about to administer a vaccine and RFK Jr. is like, no, stop it, slaps it out of your hand. Then you're screwed. Rude. I guess it was in his duties. So, wow.

0:34:43 Jenessa: I guess, yeah. So no, can't bring the lawsuit.

0:34:52 Thomas: In his official capacity as ruining all of science and medicine. And he's like, that's my official capacity. All right.

0:34:58 Jenessa: Yeah, the usual rationale, they need to be free to do their job without worrying about getting sued for every little little thing they did. Or according to some scholars, this is a historical artifact. We haven't gotten rid of it because inertia. It's in our law and we don't have like a better plan for how to prevent a deluge of lawsuits. It just stuck around. I'll link in the show notes. There's a really good reading about the different opinions on this. But yeah, like it's not not some set in stone kind of thing. State sovereign immunity is. It's in the 11th Amendment of the Constitution.

0:35:04 Thomas: Blah, blah, blah. Oh, yeah.

0:35:36 Jenessa: For the state, individuals cannot sue the state in federal court. And again, that's going to include suing a state official in their official capacity. That means suing the state. It'S not different. In state court, they've kind of left it up to the states to decide how how they want to immunize themselves. So very similar to the federal government, states have often waived the right, you know, you can sue us for some things. The Supreme Court has said very clearly you can absolutely sue the state in state or federal court to enjoin them from doing unconstitutional things. Nothing could work if we couldn't do that. The state can really decide, decide to sue the governor in her official capacity for a tort, that's up to your state whether they want to allow that or not. The exceptions here, so this doesn't apply to a state crime in state court. Otherwise, state officials would just be immune from every crime and that would not work at all. You can enjoin a state official in their personal capacity from enforcing a state law. So for some reason, you have to bring that lawsuit in their their personal capacity it's

0:36:50 Jenessa: Very one weird

0:36:50 Thomas: Isn't that the reason why some of the famous cases are named after the actual attorney general or something?

0:36:55 Jenessa: Trick exactly precisely so like in your state court if we wanted to stop a state agency from doing an illegal thing in the state court you'd probably just sue the agency in the federal court you just one weird trick and name them in their personal capacity the readings are like yeah this is illegal fiction we're just making up nonsense to pretend yeah

0:37:18 Thomas: It's like a workaround for the system. I don't know. We can't get it to work any other way.

0:37:23 Jenessa: And it's a way to make it happen that like just obviously has to be able to happen you know in rare circumstances federal congress can abolish state sovereignty so for example in the 14th amendment section 5 says and this is an amendment the states ratified we gave congress the power to pass legislation that enforces the 14th

0:37:46 Thomas: Boy. And then we just didn't really.

0:37:48 Jenessa: Amendment, yeah now we're just yeah Yeah, in theory, Congress can say, well, in order to enforce the 14th, we have to allow you to sue in a federal court. So we're going to say state sovereignty doesn't apply to this state. You ratified this amendment. You waived your immunity. Federal funding programs, of course, can have a string attached that says you're going if you take the money, you're gonna waive your immunity and let people sue you. It doesn't imply to municipalities. So your state is immune, but your town isn't. You can go sue the town in federal court.

0:38:14 Thomas: That's interesting. Wait, for what kinds of things would we be talking about with this example?

0:38:28 Jenessa: Just the thing of state sovereign immunity, the 11th Amendment, just doesn't apply to the city. Go ahead and sue a city official in their official capacity in federal courts.

0:38:36 Thomas: For any civil thing, is that what it's saying? Like any...

0:38:40 Jenessa: Sure, like we already knew you could enjoin them from doing unconstitutional things, but now we're talking like, yeah, go ahead and just, you know, whatever. Example, like if a state police officer was doing something bad and you tried to sue them in their official capacity in state court for damages, they'd be like, sovereign immunity, we're out. If you try to sue the local police officer in their oficial capacity, what you're really doing is suing the local Police Department of the city of Troy or whatever. And that's fine, because that's not hitting the state treasury, that's hitting the like Treasury Department of the city. And somehow that whatever.

0:39:18 Thomas: Interesting. Good to know.

0:39:21 Jenessa: So really, yeah, lawsuits about that you can sue the individual in their personal capacity or they just bypass the whole official capacity thing and they name like the town of Gilderland we're gonna sue them for whatever for some reason we've just decided they're not entitled to the same protection because this all comes from the 11th amendment to the constitution this would require a constitutional amendment to get around it other than the exceptions we've already talked about you know obviously the federal funding thing is working. But yeah, in order to really get rid of the biggest lump of it, we need a constitutional amendment. That's really hard.

0:39:59 Jenessa: It is generally waivable, so your state could just do the right thing and not object.

0:40:05 Thomas: I just want to make sure I'm clear on which kinds of things you're talking about here. So what's the part that would require an amendment to change? I think it's hard because I just, I think I need some like examples of what this is.

0:40:18 Jenessa: If I thought the governor was violating some constitutional thing and I wanted to sue to make them stop doing it, totally fine. Injunction, go ahead. Sue in state court, sue in federal court, doesn't matter. Do whatever you want. If I said in the process of doing that, you have caused me compensatable, like, monetary damages. In general, I cannot do that in a federal court if I name you in your official capacity. If I name you in your personal capacity, we're going to run into problems. There are circumstances where I could do that. If we want to make it so that I could sue the governor in her official capacity, capacity I could sue the state of new york in federal court that would literally require a constitutional amendment that's

0:40:38 Thomas: Why are you wanting to do federal court? Or are you just saying that's where this immunity exists or something?

0:41:13 Jenessa: Where this immunity exists so you could just do it in state court if the state lets you the state is also entitled to do it on their own

0:41:20 Thomas: Oh, right. But now is that kind of thing going to be state dependent? That's not where we're talking about. Okay. Okay.

0:41:23 Jenessa: Court yes yes so in the same way that the federal government like waived they had the federal tort claims act they let you sue for certain torts your state has almost certainly waived certain things um but if for some reason you want damages out of the state of New York, the state of California. You have to see how they've what they have and haven't waived in the state courts of California or New York or whatever. If you wanted to bring it to federal court, which sometimes there's a variety of reasons you might want to do that. You're raising a federal constitutional question. The state court is just more favorable to various things. You are going to end up in the Supreme Court eventually anyway. You were worried about whatever. I am going to go to a federal district court and sue the state of New York. You pretty much can't outside of some narrow exceptions.

0:42:12 Thomas: Gotcha.

0:42:13 Jenessa: And that's in the Constitution. It would require an amendment to get rid of that. Granted, this is not a huge obstacle we've been hitting. It will, the obstacle is going to come up when we get to specifically like cops invoking some of this sometimes. That's the federal and state sovereign immunity. It's going to be an issue when states want to prosecute a federal official, when you want to sue a federal official in state court, when we can run into these and they generally function like an absolute immunity unless you can show like it would be okay to sue you in your personal capacity because you like so exceeded your duties or something like that. So let's apply it. We've got a cop stop acting under color of law. Let's say this is not a bar fight anymore. They punch me in the face while trying to execute an arrest.

0:43:13 Jenessa: Was that a valid arrest? We'll just leave it up to you to imagine.

0:43:16 Thomas: I think Jenessa deserved it, if I'm being honest.

0:43:20 Jenessa: What have I done? Either way, you're not supposed to generally just be punching people, right?

0:43:25 Thomas: Sure.

0:43:25 Jenessa: Like there's a certain reasonable amount of force.

0:43:28 Thomas: Allegedly, yeah.

0:43:29 Jenessa: Just like everybody else, there can be statutory and common law defenses available. They could always, like you and I, say self -defense. Sometimes it's common law sometimes it is written down into the law there can also be at common law and in your state statute specific to cops things about reasonable force to affect an arrest so I am not going to be able to invoke this if I were being prosecuted or sued but a cop would be able to say I was affecting a valid arrest it

0:44:02 Thomas: Can I say citizen's arrest?

0:44:04 Jenessa: Was the first thing I thought of because new york does does have it written out in statute. These are all the different kinds of self -defense, defense of others, defense of property. What is the proper force that people can use? And they've got one that is about like during an arrest. I think it says law enforcement and peace officers. So I think VAERS would not count for a civilian.

0:44:27 Jenessa: I think they've tried to avoid that issue.

0:44:26 Thomas: Probably, yeah, that would probably be good.

0:44:31 Jenessa: Yeah, it seems like. When do they raise this? In theory, they could do it at trial. They could, like we talked about with Florida, you might have that kind of pretrial motion of self -defense. Maybe your state made the officer's reasonable force a pretrial type of motion, something like that. At grand juries. At the federal level, you have a constitutional right to a grand jury for a federal charge. No for a misdemeanor. It's just for felonies. At a state level, that constitutional amendment has not been incorporated out to the states.

0:45:07 Jenessa: Some states require a grand jury for a felony. Some of them just leave it up to prosecutor discretion. A prosecutor might convene a grand jury. They might not. Typical grand jury, 90 % indictment rate. I've talked about this a million They tell a one -sided story. And if it were anybody other than a cop, they're not going to raise potential defenses. They're not gonna be like, oh, you know, well, I want to prosecute Thomas for punching Jenessa in the face in the bar. He might claim it's self -defense. So I'm gonna have to tell this grand jury about the rules around self -defence and see if they think I will be able to overcome, like, why would they do that?

0:45:47 Jenessa: They don't have to do that. In officer -involved crimes, there's concern that prosecutors are more tepid. Is it possible they are in a way they would never do for you and I?

0:45:46 Thomas: Yeah, He's just a boy.

0:46:00 Jenessa: That the officer, yeah,

0:46:00 Thomas: He's just like J.D. Vance defending a Republican Nazi meme circle. They're just kids. They's There's 38 -year -old kids, you know, just doing Nazi stuff. You can't hold them accused. You're going to ruin their life for this.

0:46:15 Jenessa: Like it's to what extent are they bringing the grand jury because they feel the public pressure, but what a relief when the grand jury says no, because now I don't have to go through the prosecution, but also the the pressure's off me. I'm not the one who said don't prosecute.

0:46:29 Thomas: Yeah, and we can't usually see inside that at all, right?

0:46:32 Jenessa: Right? Exactly.

0:46:33 Thomas: Grand juries, like, black box.

0:46:35 Jenessa: Yeah, for the most part. And so we don't necessarily know. Can grand jury members talk? I don't think so. I'm Not sure.

0:46:41 Thomas: Man, I don't know the answer to that. I think no, because I think, yeah, I do not know.

0:46:45 Jenessa: Regular jurors can.

0:46:47 Thomas: Regular jurors can. I think they can't because if you did not get an indictment, then it is like, yeah.

0:46:52 Jenessa: Then it's like super wrong to talk about.

0:46:54 Thomas: Imagine if someone was falsely accused of something. Yeah.

0:46:57 Jenessa: Exactly. Of course, it would be so bad. And it's true. You're almost certain officers are going to raise the defense of reasonable force. You know, most crimes, what's going to happen is the defendant is going to plead not guilty. They're going to say I didn't do it. It is a unique situation. There's often body cam footage like nobody's going to deny.

0:47:18 Jenessa: I did point my gun at them. I didn intend to pull the trigger. I did intend to shoot them. You're basically admitting to all the elements of the crime. We know you're going raise reasonable use of force or self -defense or defense of others or something. Thing. So maybe it does make sense to raise to a jury, hey, these are the elements. This is what an officer would have to show you to show it was reasonable force. Do you think that? Because if you can't get it through the grand jury, you're never getting it throughthe regular jury, right? But if you're tepid about it and if you are really generous about it, then it's not going to get through the Grand Jury. It's tough. There is a lot of concern about that, that prosecutors don't bother to charge it, that grand juries get a very biased take, that they hear about defenses they would never hear for a civilian. And then finally, if it ever goes to trial, they get acquitted because juries are just so favorable to, oh, well, officers got to do what they got to do. We have very low attempts at prosecution. We Have very low indictment rates. Even when it goes to trial. We've very low conviction rates. That's a huge part to consider here. Any defense they get to raise. Again, there are many states where it doesn't even have to go to a grand jury anyway.

0:48:37 Jenessa: You could have a situation where the officer in your state is not going to get a grand jury and is not able to raise any of this pretrial. And the only reason it's not going to trial is because prosecutorial discretion, they're just not bringing it. And that's part of the problem.

0:48:57 Ad: [Ad break 3 — ad music]

0:48:57 Jenessa: Federal law enforcement officer trying to arrest me punches me in the face. Always internal discipline is possible. There's no immunity from getting fired or put on leave, leave, whatever, paid leave or whatever, but we would hope that would end in, like, getting fired or something. They're a federal official. If there's a federal crime somehow, they could get federally prosecuted. I don't know that just because they're a federal official, they could get federally prosecuted, I don' t quite know how that works. Again, generally battery is not a federal crime, so how that would work.

0:49:08 Thomas: Yeah. Administrative leave or something. Yeah, yep. Oh, yeah. Hmm.

0:49:35 Jenessa: Could you prosecute them for battery in state court? If they were acting outside their official capacity, if they, you know, went far beyond what they were supposed to be doing, sure. If they didn't, they're going to invoke federal sovereign immunity and they're not going to get prosecuted in the state court. Could I sue them for the battery? Like we talked about, the Federal Tort Claims Act actually waived sovereign immunity for the tort of battery as it applies to a law enforcement officer. So it would have to be in the federal court, in their official capacity it's it's all there's a lot of little nitty -gritty in there but you could do it you're not going to be able to sue in their personal capacity in federal court because there's not a federal battery tort so that doesn't work you cannot sue in their official capacity in state court because that federal tort claims act waiver it's written in there they want you to go to the fed for that in their personal capacity could I sue you in state court for battery well we do finally have like a regular old battery tour at most places again you have to show they're acting outside the scope of their official capacity or they're going to invoke sovereign immunity if they're outside their official capacity then they're just some

0:50:48 Jenessa: Guy and I'm suing them for something they did in my state and we're fine state or local cop punches me during an arrest again internal discipline always possible so look to your state and local laws state and local policies and regulations what is your county sheriff up to that's where you'd want want to put the pressure. They could be prosecuted for battery in a state court, of course. Usually your state will have some kind of crime like battery. They will have something like that. You can't just go punching people.

0:51:17 Jenessa: Something that's important, again, what is your state and local prosecutor going to do? New York has a law that requires independent investigation of officer involved shootings. So we can take away that worry of like the prosecutors and the cops like all know know each other and how are they going to do an unbiased investigation? Well, we've tried to address that. So that's something maybe your state could do if you want to put some pressure on addressing this part of the problem. I guess that state or local cop could be prosecuted in federal court if it was somehow a federal crime. I don't know what the federal crime of punching me in the face would be.

0:51:16 Thomas: Could be like a civil rights violation thing, maybe.

0:51:56 Jenessa: We're going to get there. We are all kind of imagining so far we are just going for a battery and that's not gonna work, right?

0:52:04 Thomas: Yep.

0:52:04 Jenessa: For a federal crime I don't see one could I sue you in federal court for battery well there's no subject matter jurisdiction because there's not a battery tort and what's the federal question we will get there for the constitutional stuff right and that'S where it'll get weird I'm not usually going to sue you for battery tort in state court in your official capacity because then I'd be suing the state or the town if I'm suing this state did the state waive immunity I gotta ask that question if it's the state or the municipality in the official capacity I gotta to ask how is the state or municipality responsible so if the cop acted with reasonable force then nobody's responsible right it's fine if they were unreasonable then usually we're going to say the cop is personally responsible go after them unless you can show that like the state or municipality somehow sanctioned it so you would have to show like oh they had such poor training that led to cops battering people and that explains this otherwise go for their personal capacity will have the subject matter jurisdiction. Battery tort is state subject matter. And I'm just going to have to show it's unreasonable to get around these kind of common law or statutory defenses that cops can generally invoke to say, no, no. I'm allowed. Other people aren't allowed to punch people in the face. I am generally, sometimes, technically,

0:53:37 Thomas: It's literally my job. It is my passion. It was what I got into the game

0:53:41 Jenessa: Sometimes part of my job description and you say not this time that's where we're at if we haven't looked at any constitutional violation and I think you can see a problem so we've just been talking about like plain old battery let's put ourselves in the south during reconstruction the year is 1871 I am trying to establish civil rights for formerly enslaved people people. And on the one hand, certain things are going really well. Black people are getting elected to federal Congress. They're getting elected to local offices. That's going great. In certain areas of the South, the Klan is like running all levels of local government. The cops, the prosecutors, the judges. What am I supposed to do? The cop punches me in the face and he's a member of the Klan.

0:54:02 Thomas: Hmm. Oh, no. No, thanks. Right. Oof.

0:54:33 Jenessa: The prosecutor looks the other way because they're a member of the clan. And then I try to sue for the civil tort of battery and the judge tosses it out because the judge is a member of the Klan. I can't go to federal court. There's not a federal crime of battery. There's no federal tort of battery The subject matter jurisdiction is barring a state tort in a federal court The state sovereign immunity

0:54:55 Thomas: Turning into a Dr. Seuss book.

0:54:58 Jenessa: Exactly, yeah. I just, I can't do anything. I can get an injunction in federal court to don't punch me again. What is that doing? Nothing. Nothing what if we could show this violated your federal constitutional rights and not just get an injunction but get damages do something to deter this behavior that is where we're going to get finally to section 1983 and constitutional damages and that is probably a good place for us to pause

0:55:30 Thomas: Wow. Yeah. What a deep dive. Okay. So can we sum up maybe where we've been? We went from, you know, us getting in a bar fight and, you mentioned all those defenses that you and I would have. The police still will have that regardless, like pretty much, right? Right.

0:55:41 Jenessa: Anybody could say self -defense that you know and it won't be terribly different for a cop Right.

0:55:55 Thomas: And then we get all the way to and I think I got a little confused just as a non -lawyer because you just started talking about like states can't be sued. Federal government can't sue. But we're also assuming like officers of the state are the state. State police officers are the State. Right.

0:56:12 Jenessa: So if you sue a state police officer in their official capacity, you are suing the state. And that is why we get this weird. No, no, no. I'm suing them in their personal capacity, which means I'm going after your personal bank account, not the New York Treasury. If I sue a federal official, I need to find a way for it to be okay to go after you in your personal capacity and your personal bank account or else, again, I'm suing the federal government. I can almost never do that. So that's where these problems come up.

0:56:46 Thomas: They're not they're not big fans of that.

0:56:48 Jenessa: Yeah, they really aren't.

0:56:50 Thomas: Just to make sure we were we not ever talking about any criminal stuff in this. We're still just talking about like civil.

0:56:56 Jenessa: So we do have criminal in here in the sense of prosecuting a federal official in state court is a problem. Matt covered that in a lot of depth in a recent episode. That is going to be really tough to get around. You're going to need the federal government to do its job and kind of prosecute their own people. And they probably need a federal crime to do it. And just like things get really hairy. So we're going to need these constitutional protections to come up fast.

0:57:27 Jenessa: Same thing for prosecuting those state officials. It is really hard to prosecute them for a crime in federal court so we got to do it in state court and what if your state is really corrupt and in the bag especially thinking about when these constitutional torts got passed in 1871 they were really thinking this is not going to happen ever. The state is not protecting me so a lot of this centers around the idea of for the crime and the tort how am I gonna try to get myself into federal court I got state sovereign immunity I've got federal sovereign immunity I've got defenses everybody can access like self -defense and insanity and then I got defenses cops can access. I use reasonable force it's all getting in my way the whole way top to bottom yeah

0:58:23 Thomas: So It sounds like in terms of, you know, current events, the criminal thing, I guess what you're saying, that was mainly what Matt covered before. But just to just to see how that interacts here. Are you saying that's dead in the water because they're trying that, right?

0:58:33 Jenessa: And I think so basically it's it's like what Matt talked about out that they're going to have to show that he somehow exceeded his federal capacity so we can prosecute him not like I'm somehow prosecuting ice that I'm like putting on trial the entire policies of the federal government I'm putting this individual on trial for a crime he committed in our state that is outside the bounds of what the fed ever authorized him to do and that is where you're going to hit this problem for the crime

0:59:10 Thomas: Reasonable people, I think, would be pretty easy because you'd be like, oh, yeah, for sure. That was a murder. So in times past, they weren't authorized to just murder. So, yeah,

0:59:14 Jenessa: Right and right. Exactly. Part of the problem will be whether he can raise this pre -trial so a jury will probably look at this and be like good lord especially a jury in minnesota right now not happy right but if a judge pre -trail is like I mean guys this is this is going to hits the federal sovereign immunity yikes it could get dismissed. So we have that problem pre -trial and during trial.

0:59:30 Thomas: Plus, I keep hearing about how it would have to end up in federal court, but it would still be the state prosecutor. But there's some rule or some law, some reason the officer can move it to federal court. But it doesn't mean that like the attorney general takes over the prosecution. It's a wrinkle I keep hearing about. It is for sure a thing, but I don't know what that is.

1:00:04 Jenessa: That's interesting. I don't know about it for criminal. For civil, that is almost certainly what would happen is you would remove the civil lawsuit to a federal court and get a federal judge.

1:00:13 Thomas: Yeah. But I know it can't be civil because they were talking specifically about the Like the state prosecutor. Right.

1:00:18 Jenessa: Yeah. And the main thing I want to bring up here is the whole theme of this is keeping separate that civil and criminal because I see a lot of people talking about the criminal prosecution and then raising things like, well, in this civil lawsuit in the federal government, they found excessive force Fourth Amendment violation, and that meant you couldn't get qualified immunity. And therefore, at a criminal trial in a state court, you're not going to be allowed to raise self -defense. Absolutely not.

1:00:51 Jenessa: We cannot draw a line from one to the other.

1:00:53 Thomas: It's so easy for us non -lawyers to mess up and it's why I'm really glad you're clarifying for us.

1:00:58 Jenessa: Yeah, we have to lay all of these puzzle pieces out to see, like, these things are not the same. The Supreme Court was not contemplating telling a cop, the only defense you really have, because everything that happened was on camera, we're going to tell you you can't even ask a jury? No. No, maybe it'll affect jury instructions of like, oh, what's reasonable force? I could totally see a prosecutor trying to argue, you know, if the Supreme Court said this is an unconstitutional excessive force and we have definitions, you got to let me instruct the jury about what reasonable force is consistent with that. But that's about the most I can think of this criminal and civil overlapping. So look very carefully when people are citing cases. As soon as you see 42 U .S .C. 1983, they're talking about a civil constitutional tort.

1:01:50 Jenessa: So do not apply that to a criminal lawsuit.

1:01:53 Thomas: Very important. All right. Well what's ahead.

1:01:56 Jenessa: What's ahead is we're going to actually finally talk about how you file the constitutional violation lawsuit and how that created qualified immunity with a capital Q.

1:02:09 Thomas: Fun. All Right. We'll get to that next time. Thanks so much for the breakdown. I'm learning a ton and I think in part two here we're going to really put it all together. So uh we'll see maybe uh maybe patrons get that early you know um patrons don't have to wait so patreon.com/seriouspod but thanks Jenessa for the breakdown thanks everyone for listening and uh we will get back to it meet back here in a week everybody I'm Walking here. Let's get some coffee