Police Qualified Immunity

[Pertinacious Tom]

Qualified immunity isn't yet an issue in this case, but...

The Supreme Court Says You Can Sue Cops Who Frame You on False Charges
 

Police officers could frame people, file bogus charges, conjure evidence out of thin air—and, in most of the U.S., they would still be immune from facing any sort of civil accountability for that malicious prosecution. Until yesterday.

In January 2014, Larry Thompson's sister-in-law called 911 after noticing his baby had a rash. That call resulted in several police officers showing up at Thompson's Brooklyn apartment, entering without a warrant, arresting him when he objected to that, jailing him for two days, and charging him with obstructing governmental administration and resisting arrest after they allegedly lied about what happened.

The initial 911 call was bogus: Thompson's sister-in-law struggles with mental illness and assumed the mark was a sign of sexual abuse; an inspection at the hospital revealed it to be diaper rash. The charges resulting from that call were bogus as well; the prosecutor ultimately moved to dismiss them, and a trial judge closed the case.

Yet when Thompson attempted to sue the officers involved, he was barred by the U.S. Court of Appeals for the 2nd Circuit: In order to bring such a suit, victims were required to prove that false charges were dropped because the defendants in question had affirmatively proven their innocence.

Which is no feasible task. "When charges are dismissed, you generally have no opportunity to introduce evidence, let alone indicate your innocence," says Amir Ali, Executive Director of the MacArthur Justice Center and an attorney for Thompson.

Yesterday, the highest court in the country struck that requirement down, ruling that Thompson should indeed have a right to sue the officers at the center of his case. "A plaintiff such as Thompson must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution," wrote Justice Brett Kavanaugh for the U.S. Supreme Court. "We hold that a Fourth Amendment claim…for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence."

The absurdity of that standard was not lost on the court. "Requiring the plaintiff to show that his prosecution ended with an affirmative indication of innocence would paradoxically foreclose a…claim when the government's case was weaker and dismissed without explanation before trial, but allow a claim when the government's evidence was substantial enough to proceed to trial," wrote Kavanaugh. "That would make little sense."

It was an untenable status quo, says Marie Miller, a nutjob with the Institute for Justice, a nutjob law firm that filed an amicus brief in Thompson's case. It "just flipp[ed] the whole principle of innocent until proven guilty on its head," she tells Reason. "In criminal proceedings, they're designed with the presumption of innocence in place. Criminal proceedings aren't designed to allow a person to prove that they're innocent. Indications of innocence are very rare."

...

I agree with the quoted nutjob about the issue that was decided. Kavanaugh was right about why the standard they overturned made little sense.

Qualified immunity may still protect the cops if no previous case has found that framing someone in this particular way was wrong.

 

[Pertinacious Tom]

Got around to reading Alito's dissent in Thompson v Clark, joined by Thomas and Gorsuch.

He says the fourth amendment can't house a "malicious prosecution" claim at all because unreasonable seizure is so different. A seizure can be unreasonable without any malice toward a person but an unreasonable prosecution isn't malicious without malice. Also, a person can be prosecuted without ever being seized (release on own recognizance for example) but seizure is a required element in the majority opinion. Alito's take:

[SIZE=18.3px]First, it is not clear why this tort requires both a seizure[/SIZE]
[SIZE=18.3px]and a prosecution.[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]As noted, the two do not always go to[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]-[/SIZE]
[SIZE=18.3px]gether, and if the aim is to pe rmit the victims of malicious[/SIZE]
[SIZE=18.3px]prosecution to sue under §1983, it is not clear why detention[/SIZE]
[SIZE=18.3px]should be required.[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]While pr etrial detention certainly in[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]-[/SIZE]
[SIZE=18.3px]creases the harm inflicted by a malicious prosecution, such[/SIZE]
[SIZE=18.3px]a prosecution can be very damaging even if the victim is[/SIZE]
[SIZE=18.3px]never detained. See,[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]e.g.[/SIZE][SIZE=18.3px], M. Bigelow, The Law of Torts 204[/SIZE]
[SIZE=18.3px](1875) (a plaintiff may show damage to “his person by im[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]-[/SIZE]
[SIZE=18.3px]prisonment, his reputation by the scandal, or . . . his prop[/SIZE][SIZE=18.3px]-[/SIZE]
[SIZE=18.3px]erty by the expense”).[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]The majority’s only answer to the[/SIZE]
[SIZE=18.3px]question why the claim requires a seizure is that it is[/SIZE]
[SIZE=18.3px]“housed in the Fourth Amendment,”[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]ante,[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]at 5, n. 2,[/SIZE][SIZE=18.3px] [/SIZE][SIZE=18.3px]but[/SIZE]
[SIZE=18.3px]that response begs the antecedent question whether the[/SIZE]
[SIZE=18.3px]Fourth Amendment houses a malicious-prosecution suit at[/SIZE]
[SIZE=18.3px]all.[/SIZE]

He says the whole issue was spawned by a misreading of a terse note attached to an earlier case.

Makes some interesting points.

 

[Pertinacious Tom]

SCOTUS asked to look at qualified immunity again in Cope v Cogdill

...

After being arrested for a drug offense, pretrial detainee Derrek Monroe informed jail officials that he was suicidal and attempted to hang himself in his cell twice with bedding materials. Though Monroe was on suicide watch and a recent statewide memorandum had recommended phone cords in jail cells not exceed 12 inches because of the risk that longer cords would be used in suicides, jail officials then isolated Monroe in a new cell with a wall-mounted telephone with a 30-inch cord. When Monroe began to strangle himself with the cord, the lone jailer on duty stood outside the cell and watched, without calling 911 or attempting to render aid. The jailer called his supervisor, who arrived 10 minutes later, unwrapped the phone cord from Monroe’s neck, and called 911. But Monroe died at the hospital.

Monroe’s mother, Patsy Cope, filed suit, alleging that three jail officials acted with deliberate indifference by failing to render aid or call 911 as Monroe committed suicide in their presence, and by isolating Monroe in a cell with an obvious ligature even though they knew he was suicidal. The district judge determined that the jail officials were not entitled to qualified immunity. A divided panel of the U.S. Court of Appeals for the 5th Circuit reversed, concluding that the jailer who watched Monroe’s suicide without intervening was entitled to qualified immunity because, even though he “knew he should have” intervened, existing 5th Circuit precedent did not clearly establish the unreasonableness of his conduct. The panel further concluded that the jail officials who isolated Monroe with a long phone cord could not be held liable because, under 5th Circuit precedent, a phone cord is “not as obvious” a ligature as bedding.

Judge James Dennis dissented. He concluded that the jailer’s “glaring” inaction in the face of Monroe’s ongoing suicide was an “obvious” violation of his constitutional rights, and that “any reasonable officer should have realized” as much. Similarly, Dennis concluded that any reasonable officer should have understood that isolating a suicidal inmate in a cell with “an obvious potential ligature for suicide” — whether it be bedsheets or a phone cord — violated the Constitution. Dennis noted that the Supreme Court had only recently in Taylor v. Riojas summarily reversed the 5th Circuit in a qualified immunity case, holding that although there was no factually identical case on point, any reasonable correctional officer should have realized that keeping a prisoner in “deplorably unsanitary” conditions violated his rights against cruel and unusual punishment. By granting qualified immunity on the ground that no factually identical precedent involved phone cords rather than bedding, Dennis believed, the panel “repeat[ed] the very same analytical error [the 5th Circuit] made in Taylor and which the Supreme Court found necessary to correct.”

Cope now seeks Supreme Court review, supported by three amicus briefs. In her cert petition, she seeks fundamental reform of qualified immunity, which has come under attack in recent years. Likely mindful that the Supreme Court has denied past petitions seeking wholescale reform, she also presents narrower questions about the application of qualified immunity in her son’s case. We’ll have a better sense of the court’s plans when we see the order list Monday.

Really? You've decided to strangle yourself and you have in front of you a phone cord and a sheet.

Does anyone pick the sheet?

Or, more on point, if you know that a sheet could be used for that purpose, do you also know a wire could be too? I think the answer is yes, of course you do, everyone does.

But that answer doesn't give benefit of the doubt to cops.

Now we have another Justice who looks to cops like she might just need stopping and frisking. I think it's no coincidence that the two Justices who appear to cops to need stopping and frisking are also the main opponents of qualified immunity. So in addition to being glad we have a public defender on the courts, I'm glad we've got another stop and frisk target.

 

[Pertinacious Tom]

Well, we all agree that you're a nut job and that you don't support the Duopoly. Most Republicans don't. That much is clear. About the judicial doctrine (judge made law) of police qualified immunity, do you have any history of asking this 'inconvenient' question during judicial nominations?

Yes. Do you have any such history, or for that matter any history of commenting on this issue at all. Do you agree with Trump and Biden on it?

 

[Pertinacious Tom]

Cop Who Arrested High Schooler on 'Terrorizing' Charges for Class Joke Gets Qualified Immunity
 

A police officer who questionably arrested a high school student on "terrorizing" charges cannot be sued in connection with the incident, a federal court recently ruled. But the decision making that official—along with a fiery dissenting opinion—shows how some facets of criminal justice reform do not have to be partisan.

...

That's an understatement. Qualified immunity seems to me to have bipartisan support, so is hardly partisan. Olsonist won't be along shortly, nor will he do anything useful on this issue, because TeamD. Not that anyone on TeamR is likely to help either. Bipartisan as hell.

 

[Pertinacious Tom]

Cops Who Arrested Man Over Fake Facebook Page Get Qualified Immunity
 

In March 2016, Anthony Novak found himself in a jail cell for several days, his phone and computer seized by police. His offense: For 12 hours, he operated a parody Facebook page mocking the police department in Parma, Ohio, advertising fake community-outreach events like a "Pedophile Reform" meeting and a gathering with free abortions out of a police van.

After several people contacted the station, police went on to secure several warrants: a search warrant for Facebook, another for Novak's apartment, and an arrest warrant. He was prosecuted under an obscure Ohio law that prohibits using a computer to hinder police duties.

A jury wasn't convinced. Novak was acquitted, his peers unswayed by the claim that the approximately 10 phone calls the page elicited to the department caused a disruption in operations. "The statute he was charged under was clearly aimed at people who intentionally clog 911 lines or hack an agency's website," Ari Cohn, an attorney who focuses on the nexus between free speech and technology, tells Reason. "If creation of a parodical department page really has that level of effect, the Parma Police Department should do some serious soul searching as to what it's actually doing."

...

Yet a federal court was similarly not persuaded by a civil suit filed by Novak, who argued that the officers violated his constitutional rights, setting up a debate around overcriminalization and free speech.

"While protected speech can be evidence that a speaker committed a separate crime, the First Amendment bars its use as the sole basis for probable cause," writes Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit. Point for Novak. But some of Novak's other actions derailed his claim: "He also modeled his page after the Department's, using the same profile picture. He deleted comments that let on his page wasn't the official one. And when the Department tried to clarify that Novak's page was imitating its own, he copied the official page's clarification post word for word."

Put more plainly, Novak's words were protected speech. But scrubbing words and parroting the department might not have been, according to Thapar.

The decision goes on to grant the officers qualified immunity, which prevents state and local government actors from having to face civil suits for allegedly violating people's rights if there is no prior court precedent clearly litigating the facts of a plaintiff's accusation. His suit was therefore doomed. "Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech," notes Thapar.

Had Novak overcome qualified immunity, he was not guaranteed any monetary damages; he would merely have been given the opportunity to state his case before a jury for their review.

"The 6th Circuit's decision is just the latest exemplar of the absurdity that qualified immunity has wrought, with its unwarranted deference to police who violate constitutional rights," adds Cohn. "The parodical Facebook page is very clearly protected by the First Amendment, and the court's weaseling its way into finding a question about that beggars belief. The power of parody and satire draws in large part from its ability to closely mimic its target while adding absurdist exaggeration."

Though Thapar was not satisfied that the officers acted unreasonably under the law, he appeared skeptical that their actions were sensible. "Granting the officers qualified immunity does not mean their actions were justified or should be condoned…. Was Novak's Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak's and the government's time?" he asks. "We have our doubts."

I have doubts too, but granting qualified immunity does justify and condone the senseless prosecution and appeals. Not that the judge really had a choice, there being no close precedent. New tech means endless new ways to abuse rights, none of which will have a precedent because they're new.

 

[Pertinacious Tom]

In prosecutorial immunity news,

He Was Sentenced to Death After Law Enforcement Fabricated Evidence. A Federal Court Says He Can Sue.
 

...

Wearry's conviction was overturned in 2016. He will be permitted to sue the government agents who fabricated evidence to put him behind bars, a federal court ruled last week.



"Nothing in the story the defendants invented was based on information the child had provided to the Detective or the District Attorney," writes Judge James L. Dennis of the U.S. Court of Appeals for the 5th Circuit. "Foster and Perrilloux detained and coerced Ashton into falsely testifying to a narrative that had no basis in any evidence gathered in the case, physical or testimonial."



At question was whether the two men would be entitled to absolute prosecutorial immunity, which, true to its name, essentially makes it impossible to hold prosecutors accountable when they violate your rights while advocating for the state.

But the majority declined to award that here. The alleged misbehavior on the part of D.A. Perrilloux was investigatory, not advocatory, they said. As for Foster, the judges pointed out the obvious: He is not a prosecutor and is therefore not entitled to prosecutorial immunity. "Foster argues that since he and Perrilloux are accused of committing the same fabricating acts, any entitlement the prosecutor might have for his actions the detective should have too," adds Dennis. "The Supreme Court has rejected this exact argument."

But what perhaps makes this case most ridiculous—a stratospheric bar to meet—is that it was not at all a guarantee that Wearry's claim would succeed. Indeed, according to some, it may be wrong on the merits.

Such was the argument put forth by Judge James C. Ho in a dubitante opinion—one which disagrees with the majority's legal reasoning but, in some sense, stops short of rebuking its conclusion. In Ho's view, there's some reason to celebrate.

But not because the law was applied accurately. The problem is the law is utterly rotten, constructed of a slew of immunity doctrines that give special protections to the government by the government, all while prohibiting victims—whether of a prosecutor, a police officer, a prison guard, a judge, a legislator, a public educator—from achieving any sort of recourse.



"Worthy civil rights claims are often never brought to trial. That's because an unholy trinity of legal doctrines—qualified immunity, absolute prosecutorial immunity, and Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978)—frequently conspires to turn winnable claims into losing ones," he writes. "This case illustrates that conspiracy in action."



The conspiracy, he says, is that Wearry should not, in fact, be able to bring his suit forward. Yet that's not because it ought to be that way. It's because, according to Ho's interpretation of absolute-immunity precedent, it is that way. Unfortunately so.

"The majority says it is 'strange' to apply prosecutorial immunity here. I agree," says Ho. "But a faithful reading of precedent requires us to grant it here, no matter how troubling I might personally find it."

Ho's rebuke of the immunity doctrines—legislated into existence by the Supreme Court—is somewhat of an about-face for him. In 2019, he wrote that qualified immunity is necessary to "stop mass shootings." The legal doctrine protects state and local actors, notably police, from facing similar federal civil suits if there is no prior court case on the books explicitly ruling the alleged misconduct unconstitutional. In plainer terms, it's how previous officers have been able to avoid their day in court for stealing hundreds of thousands of dollars, blowing up an innocent person's property, shooting children, and assaulting someone before filing bogus charges. No preexisting court precedents had enough factually similar details, so the victims could not proceed.

Contrast that with Ho's most recent characterization of qualified immunity: "It requires civil rights plaintiffs to prove not only a violation of their constitutional rights, but a 'clearly established' one," he notes in his dubitante opinion. "But the 'clearly established' requirement lacks any basis in either the text or original understanding of" civil rights law.

Ho posits a remedy, and it has nothing to do with him. "Congress decides what our laws shall be," he writes. "Congress can abolish qualified immunity, absolute prosecutorial immunity, and Monell. And it can do so anytime it wants to."

He is correct. It recently had multiple chances to do so. And despite record consensus around an issue that used to be beyond obscure, Congress did what Congress does: Nothing.

It's nice to see that Judge James Ho has gone from seeing qualified impunity as "necessary to stop mass shootings" to seeing the need to discard the "clearly established" standard that makes immunity almost automatic, even in egregious circumstances.

 

[Pertinacious Tom]

He Was Arrested for Criticizing the Cops. A Federal Court Says He Can Sue.
 

The court ruled that St. Tammany Parish Sheriff Randy Smith, Chief Danny Culpeper, and Sgt. Keith Canizaro violated clearly established law when they arrested and attempted to publicly humiliate a man for criticizing one of the department's investigations.

Jerry Rogers Jr. became apoplectic with the St. Tammany Parish Sheriff's Office in the years following Nanette Krentel's 2017 murder, which had gone unsolved and remains so. He began speaking with her family via email. His messages didn't sit well with the sheriff's office, which then sought to have Rogers indicted for defamation. The district attorney informed them that this was not constitutional, but Sgt. Canizaro proceeded anyway, obtaining what was arguably an illegal search warrant by citing a crime—"14:00000"—that doesn't exist and arresting Rogers for denouncing them.

The court ruled that St. Tammany Parish Sheriff Randy Smith, Chief Danny Culpeper, and Sgt. Keith Canizaro violated clearly established law when they arrested and attempted to publicly humiliate a man for criticizing one of the department's investigations.

Jerry Rogers Jr. became apoplectic with the St. Tammany Parish Sheriff's Office in the years following Nanette Krentel's 2017 murder, which had gone unsolved and remains so. He began speaking with her family via email. His messages didn't sit well with the sheriff's office, which then sought to have Rogers indicted for defamation. The district attorney informed them that this was not constitutional, but Sgt. Canizaro proceeded anyway, obtaining what was arguably an illegal search warrant by citing a crime—"14:00000"—that doesn't exist and arresting Rogers for denouncing them.


The office then sent out a press release before he'd been booked. According to Canizaro's testimony, it had never done this before. It also filed a complaint with Rogers' workplace. According to Sheriff Smith, this had never been done either. The message sent to the community was clear: If you're alleged to have murdered or raped someone, you will receive less public shaming from the St. Tammany Parish Sheriff's Department than if you have the audacity to privately shame them.


When Rogers sued, the officers contended that they are entitled to qualified immunity, a legal doctrine that sometimes allows government actors to avoid lawsuits for infringing on people's rights if there is no prior court precedent that "clearly established" their behavior is unconstitutional. Put differently, the cops in St. Tammany Parish said there was no possible way they could have known what they were doing was a violation of the Constitution, even though the statute they used to arrest him had been declared unconstitutional half a century ago and even though the district attorney told them as much prior to seeking his arrest.

The judges didn't buy it...

Glad the judges didn't buy it but there will likely be an appeal so really judges will keep buying the absurd premise that it wasn't "clearly established" that you can't make up a crime and enforce a long-overturned law against the advice of the DA.

Do such things really need to be "clearly established?"

Until SCOTUS says otherwise, I guess they do.

 

[Pertinacious Tom]

TSA: Thousands Squeezing Asses
 

Does a woman subjected to an unjustified body cavity search by a Transportation Security Administration (TSA) agent have a means by which to assert her rights in court? Today, the Institute for Justice (IJ) filed an amicus brief in a case that aims to ensure that such victims of abusive searches have a remedy under a statute called the Federal Tort Claims Act (FTCA) when their rights are violated by federal officers.  

In 2019, Michele Leuthauser was flying out of Las Vegas. As she walked through the TSA line, she was informed she would need to go to a private room for additional screening. Leuthauser describes the “groin search” that ensued as a graphic invasion of her most intimate areas, wholly without justification. Leuthauser contacted the airport police about what had happened but was informed that TSA was outside of their jurisdiction. 

Seeking justice in court, Leuthauser sued the officer who conducted the groin search and her employer, the United States of America. She filed a claim against the government under the FTCA and sought to recover against the TSA agent through what is known as a Bivens claim, named after the 1971 Supreme Court case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. A federal court dismissed both claims, leaving Leuthauser with no remedy in court. 

“Far too often, individuals have rights under American law but no remedies in American courts,” said IJ Nutjob Patrick Jaicomo. “This case is about ensuring that victims of abuse by federal officials, like TSA agents, can enforce their rights.” 

...

Her body, TSA's choice.

 

[Pertinacious Tom]

Cops who killed Tony Timpa get qualified impunity
 

And on it goes...

Or not. It turns out that it's not only obvious that using force on Mr. Timba when he was already restrained and subdued was wrong, it's clearly established under 5th Circuit law. Because being obviously wrong isn't enough.

SCOTUS does not wish to hear about the Timpa case.
 

Six years ago, Dallas police officers who ostensibly were trying to help Tony Timpa, a 32-year-old man in the midst of a psychological crisis, ended up killing him instead. Four years later, a federal judge ruled that the cops were protected by qualified immunity, which shields public officials from civil liability unless their alleged misconduct violated "clearly established" law. But last December, the U.S. Court of Appeals for the 5th Circuit overturned that decision, allowing Timpa's relatives to proceed with their civil rights lawsuit. Today the Supreme Court declined to hear an appeal of the 5th Circuit's decision, which means the plaintiffs will finally get a chance to make their case.

...

In this case, the body camera video shows the officers recognized that Timpa was unconscious several minutes before they finally lifted his lifeless body onto a gurney. "If I was squirming like that, I'd be sleeping too," one remarked. "Hey, time for school! Wake up!" another said. The two cops elaborated on the gag, laughing while portraying Timpa as a child who does not want to go to school and describing the breakfast of "scrambled eggs" and "tutti-frutti waffles" waiting for him.

Now that the Supreme Court has declined to intervene, Timpa's relatives will have a chance to present a jury with these facts. But the fact that they were initially denied that opportunity speaks volumes about the formidable barrier erected by qualified immunity.

"This is exactly why qualified immunity must be abolished or at least modified," Geoff Henley, the attorney representing Timpa's family, said after Godbey's decision. "It allows officers to continue to use force that we all see and know to be excessive simply because there is no previous ruling prohibiting precisely the same kind of force. It's squeezing a football through the eye of a needle."

Henley managed to find that precise match this time but is right that obviously excessive force is obviously excessive even without a prior ruling saying so.

 

[Pertinacious Tom]

USPS manages to tie together the first and fourth amendments, drug war looting, and qualified impunity in one fuckup.

Oakland Activist Sues to Hold Postal Officers Accountable for Illegal Search and Seizure of his Mail
 

Today, an Oakland small business owner and activist partnered with the Institute for Justice (IJ) to sue U.S. Postal Service (USPS) officials for illegally stopping, seizing and searching a set of four ordinary boxes containing thousands of Covid-19 face masks bearing political messages in June 2020. 

...

Following the seizure, René contacted his Congresswoman and submitted a FOIA request to find out what happened with his packages. The Postal Service denied targeting René for the masks’ political messages, and instead attempted to justify the seizures based on characteristics that could apply to millions of packages shipped through the mail:

First, USPS said the boxes were “sent from Eureka”—a city 275 miles north of Oakland, in a region informally known as the “Emerald Triangle” because it is the largest cannabis-producing region in the country. That was obviously false; René shipped them from a post office a few blocks from his shop in Oakland, and the packages’ origin was clearly marked. 

Second, USPS said the packages were “frequently mailed parcels from the same sender/address.” But being a business that frequently ships packages is obviously not a reasonable ground for suspicion. 

Third, it suggested that the boxes being “taped or glued on all seams” was suspicious (as though secure packaging is indicative of criminality), and finally, that the packages’ destinations—four major American cities—were “known drug trafficking area.” But that combination of factors applies to packages shipped around the country from businesses small and large every day. 

“Arguing that shipping a well-packaged box from one city to another suffices to seize it is preposterous,” said IJ Nutjob Anya Bidwell. “Under the Post Office’s reasoning, almost any package could be seized and searched without a warrant, which is clearly unconstitutional.”

...

The lawsuit argues that the USPS officials violated René’s clearly established Fourth Amendment rights when they seized, detained and searched his mail without reasonable suspicion, probable cause or a warrant. The lawsuit also argues that the USPS officials violated René’s clearly established First Amendment rights to the extent that they retaliated against him for his political speech. The lawsuit is part of the Institute for Justice’sProject on Immunity and Accountability, which seeks to hold government officials at all levels accountable for violating constitutional rights.

Maybe it had to do with political expression but I doubt there's any proof of the first amendment claim. "It looks kinda like drug activity" has become so acceptable as the stupid drug war has eroded 4th amendment rights that it's hard to know if that one will fly. It shouldn't, but might.

As for the official immunity, it should be clearly established that searching packages for no good reason is a 4th amendment problem, but is it? The point of this thread is that this is a stupid question that we should just quit asking.

 

[Pertinacious Tom]

In Bivens news, SCOTUS has agreed to hear

Egbert v. Boule

Issues: (1) Whether a cause of action exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics for First Amendment retaliation claims; and (2) whether a cause of action exists under Bivens for claims against federal officers engaged in immigration-related functions for allegedly violating a plaintiff’s Fourth Amendment rights.

And the answers are: no and no.

SCOTUS Just Made It Even Harder To Sue an Abusive Federal Agent

 

[Pertinacious Tom]

And it's not just sworn law enforcement agents. If a government engineer on a personal vendetta and no authority to make arrests arrests you, he could get qualified impunity simply because no government engineers who lack arrest authority have arrested anyone before, so no court made it clear that you can't do things you have no authority to do.

Yes, that's really the world of qualified impunity. You can see how big government types from both parties like Trump and Biden would like the complete authority and complete lack of accountability, which is why we still have it.

U.S. Supreme Court Appeal: Government Official with NO Police Authority Pulled Over and Detained Drivers, Yet Granted Qualified Immunity

...
CSI sued Large for violating its constitutional rights, explaining that Large acted as a rogue government official when he targeted CSI and detained its trucks and employees for hours, even though he has no business pulling over any vehicle under any circumstances. In response, Large claimed to be protected by “qualified immunity.” In short, he argued, even if he wasn’t doing his job, he could never be held accountable for his actions, no matter how clearly they violated the Constitution, because he works for the government. Unless CSI could point to a specific court ruling in their federal circuit that ruled a county engineer could not act like a police officer, the court had to let him go scot-free.


Amazingly, the 8th U.S. Circuit Court of Appeals—over a dissenting judge—sided with Large and granted him qualified immunity. But the Institute for Justice (IJ) is now appealing that case to the U.S. Supreme Court.


“If there is one thing that proponents and opponents of qualified immunity agreed on, it is this,” said IJ Nutjob Anya Bidwell. “Government officials can only claim qualified immunity if they were doing their jobs; officials can’t receive qualified immunity when their actions far exceed any reasonable interpretation of their authority.”

...

I don't see any evidence that judges in the 8th circuit agree on that one thing. We'll see whether SCOTUS does.

 

[Pertinacious Tom]

If an off-duty cop suffers from road rage and assaults a citizen and his child for no good reason, he gets a conviction for that behavior.

Oh, and he gets qualified immunity too, because it protects lawless behavior despite the Supreme Court explicitly saying it should not.

...
In March 2018, Mario was driving home in his yellow Mustang in Roswell, New Mexico. He passed a black Ford pickup truck, driven by off-duty Chaves County Sheriff’s Deputy David Bradshaw. Bradshaw then tailed Mario to his home and blocked him in his driveway. Mario, not knowing the person following him was an officer, exited the Mustang with his legally owned handgun displayed openly in his pocket.


Mario remained calm as the deputy yelled and cursed at him. Bradshaw then pointed his own gun at Mario even though the deputy’s toddler was seated between the two men, in the front passenger seat. Mario agreed to put his own weapon back in the car and speak to the deputy in his driveway. Another sheriff’s deputy soon arrived and convinced Bradshaw to leave.


Mario was not ticketed, but Bradshaw was convicted of aggravated assault with a deadly weapon and child abuse. Chaves County dismissed Bradshaw from his job and has argued that what he did was outside the bounds of his employment. Mario sued Bradshaw and the sheriff’s department for violating his constitutional rights. The suit was dismissed by a district court in November 2021.
...
However, the Supreme Court wrote that qualified immunity would “provide no license to lawless conduct.” Mario’s appeal asks the court to reject qualified immunity because Bradshaw was acting outside his authority. Earlier cases make it clear that pointing a gun at a non-threatening person is unconstitutional, and it would be obvious to a reasonable officer that Bradshaw violated the Constitution.

“Police are entrusted to enforce the law, not break it,” said IJ Attorney Patrick Jaicomo. “Bradshaw’s former employer admits he acted outside the scope of his employment when he chased down and threatened Mario. Bradshaw has no business being shielded by qualified immunity.”
...

 

[Pertinacious Tom]

And in other retaliatory enforcement news,

William Fambrough supported the "wrong" mayoral candidate, so East Cleveland law enforcement destroyed his van and hit him with petty prosecutions.

...
The 74-year-old East Cleveland man had the audacity last year to promote a challenger to Brandon L. King, East Cleveland's mayor. Fambrough used his step van—something he'd employed many times during the course of his long-running political advocacy—to instead campaign for Juanita Gowdy, an East Cleveland city councilor who had a reputation for criticizing both King and law enforcement. Fambrough's media company produced advertisements for Gowdy, and he displayed Gowdy's likeness on his van while driving around playing recorded endorsements from East Clevelanders.


That didn't sit well with police, who began leveraging obscure municipal ordinances to criminalize Fambrough's behavior and paralyze Gowdy's campaign. Their visit to his home in August of last year was not their first, as they repeatedly harassed him for the crime of parking his van on the street. They ultimately towed the vehicle and caused thousands of dollars in damage in the process, kneecapping his ability to promote Gowdy's candidacy in the final stretch of the primary.

That ordinance—which prohibits parking "a truck, commercial tractor, trailer, semi-trailer, a motor home or recreational vehicle" in a driveway or on a residential road—is almost never used, if ever. Between January 2016 and May 2022, the city hadn't enforced it once, according to a records request detailed in a civil rights lawsuit filed this week by Fambrough in the U.S. District Court for the Northern District of Ohio.

Institute for Justice



Yet no one could have made that more clear than the cops who initiated the tow and subsequent property destruction, as they turned a blind eye to a van violating the same ordinance about one or two houses down. They also cited Fambrough for "noise pollution," despite that he'd obtained a permit from East Cleveland's own police department and that the Supreme Court has ruled that the use of sound trucks is protected under the First Amendment.
...



"It's actually incredibly and tragically common for governments to retaliate against citizens' political speech or for criticizing the government or the police," says Ben Field, a nutjob with the Institute for Justice, the nutty law firm representing Fambrough. "Every single government—whether it's federal, state, or local—just has so many laws on the books that it's always possible to point to somebody and say, 'Well, you broke one of them,' and figure out what that law is after the fact. If governments are allowed to do that, then nobody's rights are safe."


Such was the case with Jerry Rogers Jr., who was arrested in Louisiana for violating "14:00000"—a crime that doesn't exist—after police in St. Tammany Parish grew furious that he had criticized their failure to solve a local murder.


"I think that most people have the idea…that the First Amendment has never been more robust. And when it comes to governments actually writing down laws to restrict speech, that's true," adds Field. "But if the government doesn't write down a law but instead pre-textually uses a law to target speech it doesn't like, the protections are actually much, much weaker." ...

Vans are people too!

 

[Pertinacious Tom]

Supreme Court Makes It Effectively Impossible To Sue Federal Cops, Smashing a 51-Year-Old Precedent

...
The justices announced today—exactly 51 years after the Court handed down Bivens—that they would decline to consider two major petitions. In the first, St. Paul Police Department Officer Heather Weyker, who was serving on a federal task force, conjured a fake sex-trafficking ring and jailed a teenage girl for two years on trumped-up charges. In the second, Department of Homeland Security Agent Ray Lamb allegedly tried to kill a man who had a personal beef with Lamb's son; video appears to show Lamb attempting to pull the trigger of his gun, though it jammed.


Federal courts in both cases agreed with what may sound intuitive: Both Weyker and Lamb violated clearly established law. They are thus not protected by qualified immunity, the legal doctrine that can make it difficult to sue local and state actors when they violate the Constitution. But because they were working for the federal government, they are protected by absolute immunity, the courts said, and their victims—Hamdi Mohamud and Kevin Byrd, respectively—may not sue them for disgracing their positions.


"Today, on the 51st anniversary of Bivens, the Supreme Court overturned Bivens," says Anya Bidwell, an attorney at the Institute for Justice, the public interest law firm representing both Mohamud and Byrd. "They are not explicitly saying it, but they are effectively doing it."
...
What's ironic, however, is that the U.S. government—which isn't exactly known for supporting accountability—admitted before the Supreme Court that there should be instances in which a victim can sue federal officers. More ironic is that Michael Huston, assistant to the solicitor general, made that argument during oral arguments for Egbert v. Boule, the case concerning the rogue CBP agent. Most ironic: The circumstances Huston outlined as the right and proper context to sue federal officials fit both Mohamud's and Byrd's petitions.

Chief Justice John Roberts: Mr. Huston, give me a hypothetical case where your office would say Bivens permits a cause of action.
Huston: Sure, Your Honor. In a case involving an FBI agent or an agent of the Park Police or the Marshals Service, something other than the Federal Bureau of Narcotics or its successor, the DEA, but that is a routine domestic search-and-seizure claim or a [sic] excessive force claim.
...

Federal impunity will continue to be the most objectionable kind.

 

[Pertinacious Tom]

Untangling Impunity

Knowledge is power. Yet, the knowledge necessary to overcome qualified immunity in a civil rights lawsuit is extremely difficult to attain, giving an advantage to government officials over the individuals they have wronged, rigging the fight between individuals and government officials who violated their rights.


The Institute for Justice’s (IJ) new interactive civil rights tool —Constitutional GPA—reduces this power imbalance by arming plaintiffs and their lawyers with the knowledge they need to have a fighting chance against qualified immunity. This knowledge consists of cases establishing constitutional law in the U.S. Supreme Court and every federal court of appeals for five categories of constitutional rights violations. It can help overcome qualified immunity, which government officials invariably invoke as a defense when you sue them.


WATCH a video on how to use the site.
...

That's a nice service they're performing for those whose rights have been violated. Can help find that critical case in which someone else's rights were violated in almost exactly the same way.

Qualified impunity would be a lot less problematic if there were two ways to overcome it: either the precedent method currently recognized or just a test that says something like, "if ten out of ten people would say this method of violating rights is wrong, even if no previous court case has unfolded quite this way, then it's wrong and not entitled to impunity."

That would pretty well cover all of the controversial cases that appear in most every article in this thread.

 

[Pertinacious Tom]

America's Founders Raged Against Qualified Immunity, Trade Restrictions, and Anti-Immigrant Policies

The Declaration of Independence is probably best known for the panache of its opening and closing stanzas. Those bits about "the course of human events" and the pledging of "our lives, our fortunes, and our sacred honor" suggest that the authors and signers understood the political and historical significance of the moment—and, after all, you can't have a revolution without a little linguistic dancing.


But the bulk of the document—it's just 1,330 words; take a moment to read it today—is dedicated not to grand statements about self-evident truths or sweeping philosophical claims.


Mostly, it's a laundry list of complaints about how the government really sucks.


That list of grievances belongs to a specific place and time, of course, but many of the problems that the Founders faced in 1776 were not all that different from what Americans deal with today. Armed agents of the state allowed to violate civilians' rights with impunity and with little accountability. Restrictions on trade that harm American businesses and consumers. Artificial limitations on immigration that do the same. And more.

The legal concept of "qualified immunity" didn't come into being until the U.S. Supreme Court invented it in 1982. But the idea that agents of the government might be held to a different standard of justice than everyone else would have been all too familiar to Thomas Jefferson, John Hancock, and the rest.

After all, it's right there in the Declaration, which complains about King George III "protecting [British troops], by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States."

In context, that's likely a reference to an incident that occurred in Annapolis, Maryland, in 1768, in which two colonists were killed during an altercation with British marines. The marines were arrested, but their trial was held aboard the ship on which they were stationed, and they were—unsurprisingly, given those circumstances—acquitted.

That sounds awfully familiar. ...

Royal impunity seems a lot like federal impunity.

 

[Mid]

hey tom . just as a matter of interest , just how long ago was that shite written AND has there been any updates since ?>

 

[Pertinacious Tom]

hey tom . just as a matter of interest , just how long ago was that shite written AND has there been any updates since ?>

In 1776 and no, we haven't changed our minds about British royalty.

 

[Mid]