Spence's op'ed in USA today
I have very little to disagree with in Spence's op-ed. He cites to Mullenix v. Luna.
Luna was a case involving a drunk driver fleeing in his vehicle. The driver called dispatchers and threatened to fire his gun. Police officers set up spike strips. Officers in pursuit were ordered not to fire at the vehicle. Barely one second before the vehicle hit the strips, a police officer fired 6 shots into the car killing the driver. Every judge that heard the case refused to extend qualified immunity to the officer - until it reached the Supreme Court.
I've spent a decade thinking about 4th Amendment jurisprudence and how it might successfully apply to service members (eg: qualified immunity). In the Haditha case, we were leading the charge trying to create new protections for military warriors. The 4th Amendment doesn't need a re-write, nor does the concept of qualified immunity. First, there needs to be some organization to how and by whom the decision to use force is judged. This is true both in the civilian world and the military system of justice. Mob indictments by prosecutors joining protesters are not the answer. And yes - the police need to do a better job of policing their own. In nearly every case, the accused officers presented red flags that questioned why they were still on the street.
Perhaps it's time that we - as lawyers - start thinking about how we can adapt the law to best protect both police officers and military service members who use force in good faith.