imported post
eye95 wrote:
I am not saying that officers ever have the discretion to consciously violate someone's rights. By definition, a deliberate violation of a constitutional right is a non-discretionary act.An officer who violates a clearly established right acts beyond his discretion, and immunity is withheld.
What I'm saying is that when faced with an unsettled legal issue, officers dohave the discretion to make a reasonable interpretation of the law. After the fact, a court may later clearly define the right in a way that reveals the officer unknowingly violated it. In those circumstances, immunity shields the officer from personal liability.
Agood example of what I'm talking about is the U.S. Supreme Court decision in Arizona v. Grant, 129 U.S. 1710 (2009). Prior to that decision, it was commonly believed that officers could conduct a complete search of the passenger compartment of an automobile whenever they arrested an occupant. Officers relied on a prior Supreme Court decision called New York v. Belton, which seemed to indicate that such searches were authorized under the Fourth Amendment.
In Grant, the Supreme Court ruled that those searches violate the vehicle owner's Fourth Amendment rights (except in certain limited circumstances).
In other words, we now know thatevery time an officer conducted such a search prior to Grant, he unknowingly violated somebody's rights. The Supreme Court actually addressed this issue in a footnote: "Because a broad reading of Beltonhas been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding."
I would compare 13A-11-52 to Belton. -52 seems to indicate that a person cannot openly carry a pistol on private property that is not his own, much like Belton seemed to indicate that officers could lawfully search a car whenever they arrested an occupant. I realize -52 has been judiciallylimited somewhat, but I do not agree that it has been judicially limited to the extent that people on this board argue.
I am saying that if an officer interprets -52 to prohibit open carry in a restaurant (which is private propertynot his own), I believe the courts would protect that officer with immunity, even if they later explicitly rule that open carry in a restaurant is lawful. I just do not believe the law is sufficiently clear to put officers on notice that an arrest for open carry in a restaurant violates clearly established law.
I believe you and I got confused because I should have explained the difference between discretionary and non-discretionary acts: An officer never has the discretion to violate somebody's clearly established rights. If the officer knowingly violates somebody's rights, by definition he is not performing a discretionary act. I should have explained that.
eye95 wrote:
You and I actually agree on this issue. I'm just not making myself clear.
I am not saying that officers ever have the discretion to consciously violate someone's rights. By definition, a deliberate violation of a constitutional right is a non-discretionary act.An officer who violates a clearly established right acts beyond his discretion, and immunity is withheld.
What I'm saying is that when faced with an unsettled legal issue, officers dohave the discretion to make a reasonable interpretation of the law. After the fact, a court may later clearly define the right in a way that reveals the officer unknowingly violated it. In those circumstances, immunity shields the officer from personal liability.
Agood example of what I'm talking about is the U.S. Supreme Court decision in Arizona v. Grant, 129 U.S. 1710 (2009). Prior to that decision, it was commonly believed that officers could conduct a complete search of the passenger compartment of an automobile whenever they arrested an occupant. Officers relied on a prior Supreme Court decision called New York v. Belton, which seemed to indicate that such searches were authorized under the Fourth Amendment.
In Grant, the Supreme Court ruled that those searches violate the vehicle owner's Fourth Amendment rights (except in certain limited circumstances).
In other words, we now know thatevery time an officer conducted such a search prior to Grant, he unknowingly violated somebody's rights. The Supreme Court actually addressed this issue in a footnote: "Because a broad reading of Beltonhas been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding."
I would compare 13A-11-52 to Belton. -52 seems to indicate that a person cannot openly carry a pistol on private property that is not his own, much like Belton seemed to indicate that officers could lawfully search a car whenever they arrested an occupant. I realize -52 has been judiciallylimited somewhat, but I do not agree that it has been judicially limited to the extent that people on this board argue.
I am saying that if an officer interprets -52 to prohibit open carry in a restaurant (which is private propertynot his own), I believe the courts would protect that officer with immunity, even if they later explicitly rule that open carry in a restaurant is lawful. I just do not believe the law is sufficiently clear to put officers on notice that an arrest for open carry in a restaurant violates clearly established law.
I believe you and I got confused because I should have explained the difference between discretionary and non-discretionary acts: An officer never has the discretion to violate somebody's clearly established rights. If the officer knowingly violates somebody's rights, by definition he is not performing a discretionary act. I should have explained that.
