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Thread: revisiting qualified immunity

  1. #1
    Campaign Veteran skidmark's Avatar
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    revisiting qualified immunity

    http://armsandthelaw.com/archives/20...hts_on_qua.php

    Today's Supreme Court ruling in Taylor v. Barkes illustrates another problem with the doctrine. If no suit can be filed until a right is clearly established, and the only way to establish it is by a definitive ruling, how can a right ever become clearly established outside of the realm of criminal procedure? (Inside that realm, a person can make and win a motion to suppress evidence, thereby establishing the right without having to win a civil suit). Here, the Court holds there was qualified immunity, since the right claimed was not established by Supreme Court precedent or by a "robust consensus" of Court of Appeals cases, suggesting that nothing less suffices.
    https://www.law.cornell.edu/supremec...39_PERCURIAM_3

    Can this be fixed? Ideas? Suggestions?

    stay safe.
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    Government has a history of conceding only just enough of a piece of a right to mollify the uppity people waving torches and pitchforks.

    A wide national public-opinion campaign would be needed to knock a hole in qualified immunity because every cop union and apologist under the sun would come out against denting qualified immunity.

    If only a few groups tackled the problem at the legislative level, they might achieve some dents and dings around the edges of qualified immunity. Maybe the ACLU or a coalition of rights groups can tackle it the way the attorney in Heller did--by looking for very good clients against who it was very hard to argue. And, then maybe set up a circuit split to get SCOTUS to handle it.

    But, yeah. Its backwards. The cop can do anything that isn't prohibited by clearly established rights, rather than the cop can only do what he has authority to do. He gets to make up his own authority to poke through the loopholes as he goes along, rather than operate within the authority he was delegated by the people he was supposed to be protecting and serving.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  3. #3
    Accomplished Advocate BB62's Avatar
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    Quote Originally Posted by Citizen View Post
    Government has a history of conceding only just enough of a piece of a right to mollify the uppity people waving torches and pitchforks.

    A wide national public-opinion campaign would be needed to knock a hole in qualified immunity because every cop union and apologist under the sun would come out against denting qualified immunity.

    If only a few groups tackled the problem at the legislative level, they might achieve some dents and dings around the edges of qualified immunity. Maybe the ACLU or a coalition of rights groups can tackle it the way the attorney in Heller did--by looking for very good clients against who it was very hard to argue. And, then maybe set up a circuit split to get SCOTUS to handle it.

    But, yeah. Its backwards. The cop can do anything that isn't prohibited by clearly established rights, rather than the cop can only do what he has authority to do. He gets to make up his own authority to poke through the loopholes as he goes along, rather than operate within the authority he was delegated by the people he was supposed to be protecting and serving.
    +1

  4. #4
    Regular Member solus's Avatar
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    Quote Originally Posted by Citizen View Post
    Government has a history of conceding only just enough of a piece of a right to mollify the uppity people waving torches and pitchforks.

    A wide national public-opinion campaign would be needed to knock a hole in qualified immunity because every cop union and apologist under the sun would come out against denting qualified immunity.

    If only a few groups tackled the problem at the legislative level, they might achieve some dents and dings around the edges of qualified immunity. Maybe the ACLU or a coalition of rights groups can tackle it the way the attorney in Heller did--by looking for very good clients against who it was very hard to argue. And, then maybe set up a circuit split to get SCOTUS to handle it.

    But, yeah. Its backwards. The cop can do anything that isn't prohibited by clearly established rights, rather than the cop can only do what he has authority to do. He gets to make up his own authority to poke through the loopholes as he goes along, rather than operate within the authority he was delegated by the people he was supposed to be protecting and serving.
    well said, citizen but as you point out first the concept has to be shown/demonstrated to the populace there is in fact a problem by a semi neutral and nationally recognized entity so there is appropriate support generated for other groups to climb on board to gather funding to continue the judicial fight.

    ipse
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    Quote Originally Posted by solus View Post
    well said, citizen but as you point out first the concept has to be shown/demonstrated to the populace there is in fact a problem by a semi neutral and nationally recognized entity so there is appropriate support generated for other groups to climb on board to gather funding to continue the judicial fight.

    ipse
    Thanks.

    As SCOTUS wrote in Union Pacific Rail Co vs Botsford:

    No right is held more sacred or more carefully guarded by the common law than the right of all individuals to the control and possession of their own person, free from all restraint and interference unless by clear and unquestionable authority of law.

    This is a clear statement that one of the most precious rights of all is to be left alone. The whole point of that is that government is not greater than people, it is their servant. Under the theory of government in this country, the people are sovereign and delegate some of their power and authority to government. If government was sovereign, then the quote above would be impossible.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  6. #6
    Regular Member OC for ME's Avatar
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    Quote Originally Posted by skidmark View Post
    ... Can this be fixed? Ideas? Suggestions?

    stay safe.
    Sadly, not any time soon.

    One, remove exemptions in the laws, where cops may violate a law that we may not. Example: a cop driving while distracted (using a laptop for official business) and then killing a cyclist.

    Overturn Hein...cops being able to enforce what they think the law is vs. catching folks who have clearly and unambiguously violated a law.

    To the case in the op, the wife should have called the facility immediately.
    Barkesís wife did not inform anyone at the Institution of this call.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

  7. #7
    Regular Member Logan 5's Avatar
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    Immunity can be fought with a Bivens Action.
    Last edited by Logan 5; 06-09-2015 at 12:49 AM.
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