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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 11-20-2020, 6:25 AM
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Default Qualified Immunity Back In The News: Reuters Special Report

In a sense, this long-ish piece is just a rehash of several, previous cases. In another sense, it notes that the NRA, SAF, FPC and Everytown For Gun Safety, along with Black Lives Matter all seem to agree on something. When such disparate groups agree, maybe it's time to take a serious look.

Special Report: When cops and America's cherished gun rights clash, cops win

Quote:
...“Andrew Scott made a fateful decision that night: he chose to answer his door with a gun in his hand. That changed everything. That is the one thing that — more than anything else — led to this tragedy,” Conway wrote in her Sept. 18, 2014, decision to toss out the lawsuit.

Conway’s ruling lays bare a sometimes tragic conflict inherent in the U.S. legal system. This conflict, fostered by the Supreme Court in recent years, pits Americans’ cherished gun rights against formidable legal protections for police accused of excessive force in the country with the most heavily armed citizenry in the world. When that conflict plays out in court, as it did in the Scott case, cops often win...

In her decision, Conway determined that Sylvester was legally justified to use deadly force because Scott was holding a gun, and that the officer was thus entitled to immunity. Conway’s decision was later upheld by the 11th Circuit Court of Appeals. The courts’ rulings meant, in effect, that Scott gave up his Fourth Amendment rights when he exercised his Second Amendment rights.

Police using deadly force against lawfully armed civilians is an inevitable result of having an “armed society” in the United States, said Adam Winkler, a professor at the UCLA School of Law and an expert on gun policy. “When you have a right to have arms, you have a right to carry around something other people would see as a threat,” Winkler said. “Generally, we allow police officers to use force when they feel threatened. And merely possessing a gun raises that threat.”...

Cases like these are why some gun rights advocates want qualified immunity to be reined in. “These cases are rare, but they shouldn’t happen at all. When they do happen, law enforcement should be held liable,” said Alan Gottlieb, founder of the Second Amendment Foundation, a Bellevue, Washington-based group that filed a brief in support of Mauck and the Scott family’s failed attempt to appeal their case to the Supreme Court. Gottlieb said police officers should not be able to cite the mere presence of a gun as a threat that justifies the use of deadly force.

Another gun rights group, the Firearms Policy Coalition, based in Sacramento, California, also favors reform of qualified immunity, Director of Legal Strategy Adam Kraut told Reuters. The National Rifle Association, the most influential U.S. gun rights group, did not respond to requests for comment on the issue...

Everytown for Gun Safety, a group financed by former New York City Mayor Michael Bloomberg that pushes for stricter gun controls, says that making it easier to hold cops accountable for excessive force could help reduce gun violence. If cops knew they might be held financially liable for their actions, the thinking goes, they might be less inclined to escalate in encounters with armed civilians.

Some high-profile incidents that have become rallying cries in the Black Lives Matter movement have helped draw public attention to the clash of policing and the Second Amendment...

The prevalence of guns in American society makes the jobs of police all the more difficult and dangerous. Researchers at Harvard University and elsewhere have shown that both killings of police and police shootings of civilians are more likely in states with higher rates of gun ownership...

Conway now conducted the two-part analysis judges apply when cops request immunity: whether the force used was reasonable in the circumstances or clearly excessive and in violation of the plaintiff’s constitutional rights, and whether police should have known at the time that their actions violated “clearly established” legal precedent.

This test, opponents of qualified immunity say, sets too high a bar for plaintiffs to hold cops accountable for killing or seriously injuring civilians. Supreme Court interventions in recent years in favor of police have only raised that bar higher — in particular, by requiring that the details of a case be nearly identical to any clearly established precedent...
The frustrating part is that the article continually hints at the idea that 'eliminating guns from society' would help 'solve' the problem.
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  #2  
Old 11-20-2020, 3:24 PM
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The frustrating part is that the article continually hints at the idea that 'eliminating guns from society' would help 'solve' the problem.
That is always without fail the Leftist Liberal answer to all violence related problems.

Conveniently ignoring the millions of times annually that firearms prevent violence to law abiding citizens who possess them.
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Old 11-20-2020, 3:47 PM
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We're talking about qualified immunity for the police here, folks. Given the trigger-happiness that we sometimes see from some officers, as outlined in the above article, this "qualified immunity" that the police get does concern me. They shouldn't get a "free pass" after shooting someone who is simply exercising a Constitutional right. I'm thinking about that fellow in Richmond who got shot while sleeping in his car.

https://www.nbcnews.com/news/us-news...d-fire-n971241

I know, "gun reported stolen", the NBC folks say. Maybe it was, maybe it wasn't, and if it was a private FTF sale, then even if it had been stolen, he may not have known it (he also might have--that's the point--we don't know). They also say he had an "extended magazine", which may simply mean "greater than 10 rounds", i. e. a standard capacity magazine (this is NBC, after all). Of course, the cops simply saw that he had "a gun" in his lap, nothing more, obviously not concealing it, and when he woke up, they opened fire and killed him.
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Old 11-20-2020, 6:12 PM
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Needs to be stripped from the Police, Politicians, and all government employees where the concept is employed. A2
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Old 11-20-2020, 6:25 PM
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Originally Posted by Cowboy T View Post
We're talking about qualified immunity for the police here, folks. Given the trigger-happiness that we sometimes see from some officers, as outlined in the above article, this "qualified immunity" that the police get does concern me. They shouldn't get a "free pass" after shooting someone who is simply exercising a Constitutional right. I'm thinking about that fellow in Richmond who got shot while sleeping in his car.

https://www.nbcnews.com/news/us-news...d-fire-n971241

I know, "gun reported stolen", the NBC folks say. Maybe it was, maybe it wasn't, and if it was a private FTF sale, then even if it had been stolen, he may not have known it (he also might have--that's the point--we don't know). They also say he had an "extended magazine", which may simply mean "greater than 10 rounds", i. e. a standard capacity magazine (this is NBC, after all). Of course, the cops simply saw that he had "a gun" in his lap, nothing more, obviously not concealing it, and when he woke up, they opened fire and killed him.
Not saying I disagree with your assessment on those particulars regarding that incident, however, there are many more egregious cases, namely the homeless guy in Albuquerque (Albuquerque has had several egregious incidents in fact) and those cases like that fella Daniel Shaver. Those cases should make any red blooded Americans blood boil. They are definitely too numerous but I'm not so sure removing qualified immunity entirely is the solution. Officers need to feel confident in their effectuation of public safety. There must be a balance of "free for all" and "good common sense" that goes beyond mere "articulable happenstance". The huge conundrum is who applies the measurement so it has meaning vs a rubber stamp (good or bad).
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Old 11-20-2020, 6:52 PM
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The Andrew Scott case immediately brought to memory an almost same incident in Inglewood Ca in July 2008. Kevin Wicks, a postal worker, 38 answered the door at midnight, to loud banging. With a pistol in his hand. And was immediate hit with a barrage of gunfire.

OOPs Wrong address. At the time the PD released some photos supposedly showing cause for shooting. And claimed Wicks had raised the gun at them, and fired first. Problem with the photos in the papers was that all the holes in the outside of the steel skinned door. Were nicely inward puckered "entrance holes". Showing that all of the shots that hit the door were from outside the residence.

The first officer to fire in this incident. Was still under investigation for another shooting in May 11 just 2 months before. Which resulted in the death of an unarmed "suspect".


Quote:
Ragan is still under investigation for a May 11 shooting in which he and his partner fired multiple rounds at a car, killing 19-year-old passenger Michael Byoune. Police said at the time the officers believed the car was heading toward them and that gunshots were coming from within.

Officials said the officers apparently did not identify themselves before opening fire. The car’s occupants were unarmed.

Byoune and his companions were fleeing the same gunfire that had drawn Ragan and his partner to the scene, said Byoune’s cousin, John Benoit, 29.

“They put him back on duty after he did that
?” Benoit said Tuesday of Ragan. “It’s crazy.”

In Monday’s shooting, officers responding to a report of a family disturbance said Wicks pointed a gun at them as he answered his door. His family claims that officers had gone to the wrong apartment, which police deny.
Really troubling that QUALIFIED IMMUNITY is a thing created by CASE LAW. And has never been legislated into existence.
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Old 11-20-2020, 8:43 PM
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Originally Posted by pacrat View Post
The Andrew Scott case immediately brought to memory an almost same incident in Inglewood Ca in July 2008. Kevin Wicks, a postal worker, 38 answered the door at midnight, to loud banging. With a pistol in his hand. And was immediate hit with a barrage of gunfire.

OOPs Wrong address. At the time the PD released some photos supposedly showing cause for shooting. And claimed Wicks had raised the gun at them, and fired first. Problem with the photos in the papers was that all the holes in the outside of the steel skinned door. Were nicely inward puckered "entrance holes". Showing that all of the shots that hit the door were from outside the residence.

The first officer to fire in this incident. Was still under investigation for another shooting in May 11 just 2 months before. Which resulted in the death of an unarmed "suspect".




Really troubling that QUALIFIED IMMUNITY is a thing created by CASE LAW. And has never been legislated into existence.
The irony? Our soldiers would immediately call BS on many of the "forced engagements' because they are held to a much higher standard, meanwhile your typical "free agent" blackwater (or whatever the new war profiteer contractor name is) type contractor has a much more lenient, akin to our typical police departments, forward operating instruction and leniency. Outrage is justified, why should enemy combatants be treated better than US citizens? The real problem is ROE and who decides. I've met a crap-ton of real soldiers who were deployed multiple times who absolutely can't stand how things are. Problem is there are a lot of barney fife and kissing cousins agencies that are barely strung together. Larger agencies haven't even figured it out, there is almost no hope for the rag-tag, back-water, clown show type agencies. I'm not sure what the answer is but something needs to be done to create more uniformity and universal standards. That's the Feds job and they are doing a poor job IMO. Uniformity is lacking and that leads to confusion, multiple sets of rules, and random spurts of self granted "authority". That is dangerous for all of us who may come into contact with those rouge actors who feel empowered.
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Old 11-21-2020, 3:13 AM
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...There must be a balance of "free for all" and "good common sense" that goes beyond mere "articulable happenstance". The huge conundrum is who applies the measurement so it has meaning vs a rubber stamp (good or bad).
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...Problem is there are a lot of barney fife and kissing cousins agencies that are barely strung together. Larger agencies haven't even figured it out, there is almost no hope for the rag-tag, back-water, clown show type agencies. I'm not sure what the answer is but something needs to be done to create more uniformity and universal standards. That's the Feds job and they are doing a poor job IMO. Uniformity is lacking and that leads to confusion, multiple sets of rules, and random spurts of self granted "authority". That is dangerous for all of us who may come into contact with those rouge actors who feel empowered.
As you initially say, that's the conundrum or, maybe more accurately, part of the conundrum.

The lack of 'uniformity' is a result of our law enforcement system in the U.S., which Constitutionally and logistically is divided into various jurisdictions. As a result, the Feds cannot create an overarching 'set of rules' which universally apply. Logistically, each law enforcement agency has a specific role, at least in theory, and each role entails, to one degree or another, a different type of 'criminal;' e.g., some are potentially more violent than others, some need to be handled in specific ways, many are best handled on an individual basis, what are the laws and permissible latitude in dealing with those 'types' of 'criminal' activity, etc. Constitutionally, there are limits to Federal authority over police powers; i.e., see the 10th Amendment.

It's just like what has been dubbed the "Constitutional Sheriffs Movement." Who does have the legal authority to govern the actions of a sheriff and to whom or what does a sheriff owe allegiance? The County supervisors? The Governor? The people who elected the sheriff? The Constitution? (Which would beg the question: "Which 'understanding' of the Constitution?) As we see with COVID and gun control efforts, it's an hotly debated issue, even in legal circles.

There's also the complication that, even if a single agency were deemed as 'controlling,' you would always have what you reference as "rogue actors." In the context of the issue at the forefront of this discussion, the death of innocent civilians exercising their Constitutional rights, the usual 'remedy' process of suing in the Courts is of little comfort to the deceased. In fact, in a meaningful sense, it's been argued that the problem isn't a "lack of uniformity" in standards so much as these types of "rogue" individuals violating existing standards.

Naturally, there's also the vast majority of legitimate actors in law enforcement. Not only are they confronted daily with groups of individuals who don't think/believe the laws should be applied to them, they must also confront those who know the laws apply to them, but don't care; thus, terms such as "sovereign citizen," "criminal," and "lawless." Add to that the actual need for officer safety.

Of course, there's also the debates over "right/wrong" vs. "legal" vs. "ethical" vs. "moral."

All of this is further complicated by the courts, a litigious society, "ambulance-chasing" lawyers, political agenda, social agenda, the media, et al.

It's not quite as 'simple' as a specific branch of Government doing a poor job; though, granted, there is also some of that in play due to not only "rogue actors" at various levels of Government, but flat out incompetence as well. Unfortunately, it is this very 'complexity' which is actually the source of conflict in that it's unlikely that any, single level and/or branch of Government, let alone a specific Government agency, could derive a one-size-fits-all or even a generally applicable set of standards which would simultaneously fit the criterion regionally, socially, Constitutionally, circumstantially, et al. Yet, 'everyone' seems to agree that something needs to be done in that 'everyone' understands the concept of doing the same thing over and over again, expecting different results.

In other words, in many ways, it's a self-feeding cycle where the 'uniformity' you desire, with a certain amount of legitimacy, might not be possible short of a change to our entire system that would launch yet another self-feeding cycle of complexities which would have to be addressed prior to achieving the 'uniformity.'
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Old 11-21-2020, 11:11 AM
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yeah yeah. Qualified immunity, let's talk about cops ... blah blah.

Can we talk about the EASY part of this conversation? What about qualified immunity for people who have plenty of time to think before they take action? What about the DA's who file charges for enjoined laws, or without evidence (or worse, evidence to the contrary)? What about people who refuse to follow the law at all? What about the sheriffs who decided to willfully destroy firearms when their owners legally ask for them back? What about officers who lie to confiscate items they have no legal reason to confiscate?
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Old 11-21-2020, 1:20 PM
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Some level of qualified immunity will always exist, much like some level of "good Samaritan laws" will always exist (where regular people are held harmless against claims that their help in case of an emergency was not correct).

Remove protections for the providers, and they will stop the service. There is no way anyone is going to help anyone else, or enforce the law, if they can be held liable for any mistake or even for just following the protocol.
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Old 11-21-2020, 1:24 PM
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What needs to change is the details of how qualified immunity works and what is considered protected. Civil rights of any kind must be protected, which includes being armed, especially at home.

A change where a legally armed person is seen no differently than a "driving while black" person, with a clear understanding that neither can be considered a threat on its own, would solve quite a bit of the problem.
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Old 11-21-2020, 1:28 PM
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Bigger concern than qualified immunity is the concept of the "no knock warrants" and self defense in such a situation. Someone breaking down my door and yelling "I'm the police" is not a good system - anyone can yell "I'm the police."

There has to be an immunity for the homeowner, not the police in such a situation. Defending one's home takes precedence over government wanting to get in. I am concerned with what would happen if a police team tried to get into my house in the middle of the night by mistake...
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Old 11-21-2020, 4:27 PM
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Originally Posted by IVC View Post
What needs to change is the details of how qualified immunity works and what is considered protected. Civil rights of any kind must be protected, which includes being armed, especially at home.

A change where a legally armed person is seen no differently than a "driving while black" person, with a clear understanding that neither can be considered a threat on its own, would solve quite a bit of the problem.
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Bigger concern that qualified immunity is the concept of the "no knock warrants" and self defense in such a situation. Someone breaking down my door and yelling "I'm the police" is not a good system - anyone can yell "I'm the police."

There has to be an immunity for the homeowner, not the police in such a situation. Defending one's home takes precedence over government wanting to get in. I am concerned with what would happen if a police team tried to get into my house in the middle of the night by mistake...
Add to the list.................CAF, aka Civil Asset Forfeiture.

The NO KNOCK and CAF are unintended consequences of THE WAR ON DRUGS. And QI, protects bad actors for any but a very few wrong doings by LE.

QI.....One such QI legal atrocity is "Jessop v Fresno". $225,000 split between 2 crooked thieving cops is a NON ISSUE for LEGAL redress. QI invoked, and they are free to go.

NoKnock.....Dead law abiding citizens, and cops serving them, far too often, ATRIBUTED TO MALFEASANCE AND INCOMPETENCE. But covered by QI. Even babies in their cribs getting their faces blown off by flashbangs. OOPs..... WRONG ADDRESS! QI invoked, and off they go.

CAF...... aka POLICING FOR PROFIT. Fills police pockets with 5 BILLION $ A YEAR. And has turned into a LICENSE TO STEAL. For many unscrupulous LE Agencies. To the point that many such fund their entire dept with its misuse.
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Old 11-21-2020, 4:38 PM
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The frustrating part is that the article continually hints at the idea that 'eliminating guns from society' would help 'solve' the problem.

Eliminating libtards would.
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Old 11-21-2020, 7:24 PM
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Needs to be stripped from the Police, Politicians, and all government employees where the concept is employed. A2
I think the swamp creatures have done more damage than we will ever know for fact...
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Old 11-21-2020, 8:55 PM
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Add to the list.................CAF, aka Civil Asset Forfeiture.
...
There is a simple answer. See Article I, Section 11 of the Idaho Constitution, which reads in part, "Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony."
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Old 11-21-2020, 11:50 PM
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There is a simple answer. See Article I, Section 11 of the Idaho Constitution, which reads in part, "Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony."
Unfortunately, that's not necessarily ironclad protection. Red Flag laws have been and are being attempted which would (it is felt), evidently, be held legal even with that Constitutional prohibition.

2018 - Idaho proposal would start Idaho’s path toward gun confiscation

2019 - Idaho Senate Opens Door to Gun Confiscation Orders with SJR101 Vote

2020 - Idaho Republican Lawmaker Says He Supports Gun Confiscation Law

While they've been defeated (so far as I know), thus far, it's only a matter of time.

Remember, we felt that it could never happen in California either. Now look at us.
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Old 11-22-2020, 12:54 PM
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As you initially say, that's the conundrum or, maybe more accurately, part of the conundrum.

The lack of 'uniformity' is a result of our law enforcement system in the U.S., which Constitutionally and logistically is divided into various jurisdictions. As a result, the Feds cannot create an overarching 'set of rules' which universally apply. Logistically, each law enforcement agency has a specific role, at least in theory, and each role entails, to one degree or another, a different type of 'criminal;' e.g., some are potentially more violent than others, some need to be handled in specific ways, many are best handled on an individual basis, what are the laws and permissible latitude in dealing with those 'types' of 'criminal' activity, etc. Constitutionally, there are limits to Federal authority over police powers; i.e., see the 10th Amendment.

It's just like what has been dubbed the "Constitutional Sheriffs Movement." Who does have the legal authority to govern the actions of a sheriff and to whom or what does a sheriff owe allegiance? The County supervisors? The Governor? The people who elected the sheriff? The Constitution? (Which would beg the question: "Which 'understanding' of the Constitution?) As we see with COVID and gun control efforts, it's an hotly debated issue, even in legal circles.

There's also the complication that, even if a single agency were deemed as 'controlling,' you would always have what you reference as "rogue actors." In the context of the issue at the forefront of this discussion, the death of innocent civilians exercising their Constitutional rights, the usual 'remedy' process of suing in the Courts is of little comfort to the deceased. In fact, in a meaningful sense, it's been argued that the problem isn't a "lack of uniformity" in standards so much as these types of "rogue" individuals violating existing standards.

Naturally, there's also the vast majority of legitimate actors in law enforcement. Not only are they confronted daily with groups of individuals who don't think/believe the laws should be applied to them, they must also confront those who know the laws apply to them, but don't care; thus, terms such as "sovereign citizen," "criminal," and "lawless." Add to that the actual need for officer safety.

Of course, there's also the debates over "right/wrong" vs. "legal" vs. "ethical" vs. "moral."

All of this is further complicated by the courts, a litigious society, "ambulance-chasing" lawyers, political agenda, social agenda, the media, et al.

It's not quite as 'simple' as a specific branch of Government doing a poor job; though, granted, there is also some of that in play due to not only "rogue actors" at various levels of Government, but flat out incompetence as well. Unfortunately, it is this very 'complexity' which is actually the source of conflict in that it's unlikely that any, single level and/or branch of Government, let alone a specific Government agency, could derive a one-size-fits-all or even a generally applicable set of standards which would simultaneously fit the criterion regionally, socially, Constitutionally, circumstantially, et al. Yet, 'everyone' seems to agree that something needs to be done in that 'everyone' understands the concept of doing the same thing over and over again, expecting different results.

In other words, in many ways, it's a self-feeding cycle where the 'uniformity' you desire, with a certain amount of legitimacy, might not be possible short of a change to our entire system that would launch yet another self-feeding cycle of complexities which would have to be addressed prior to achieving the 'uniformity.'
Well said. It's a cluster to be sure. I just hope the emotional reactionist don't drown everyone else out and make the situation even worse. Wouldn't surprise me though in our current environment.
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Old 11-22-2020, 1:17 PM
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IVC & Pacrat make very good points as well. Those cases should fall under some type of federal protection. There must be a way to grant permissions on a state level without it overriding standing on the federal level. There must be a federal check and constitutionality oversight.
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Old 11-22-2020, 4:41 PM
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Originally Posted by Anonymous_Ghost View Post
IVC & Pacrat make very good points as well. Those cases should fall under some type of federal protection. There must be a way to grant permissions on a state level without it overriding standing on the federal level. There must be a federal check and constitutionality oversight.
There is just such an oversight check already in place. It is called the COURTS. Especially SCOTUS. It was designed to be the place where unconstitutional laws go to die.

The problem is that our system 3 BRANCHES of checks and balances has a thumb on the scales.

That thumb belongs to leftist activist politicos. Who have stacked the courts with leftist leaning activist judges that like the recently departed hag RBG. Don't believe that our constitution even means what it says. And have been legislating from the bench for far too long.

ACTIVIST JUDGES are the very source of QI.
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Old 11-23-2020, 7:27 AM
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...ACTIVIST JUDGES are the very source of QI.
Not... precisely.

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

Quote:
Government officials may be protected by either absolute or qualified immunity. Absolute immunity generally applies to legislators who are conducting their legislative functions as well as prosecutors and executive officers who are conducting adjudicative functions. Qualified immunity applies in a broader range of situations and is a more appropriate balance between the need of government officials to exercise their discretion and the importance of protecting individual rights. Cabinet members receive only qualified immunity, so presidential aides should not receive a higher degree of immunity. Their job is not so sensitive that it requires absolute immunity. This does not affect the ability of courts to dismiss meritless claims against government officials.

To establish a defense of good-faith immunity, a government official must prove both objective and subjective elements. The official must not have actually known and also should not have been able to know that his actions were illegal. Accordingly, many claims will be resolved on summary judgment, and officials will have the freedom to use their discretion in carrying out their tasks. The record thus far does not show whether this standard is met...
It was an 8-1 decision. The 8 Justices?

Lewis Franklin Powell, Jr.

Quote:
...Powell compiled a generally conservative and business-aligned record on the Court...
William Joseph Brennan, Jr.

Quote:
On the Supreme Court, Brennan was known for his outspoken progressive views...
Byron Raymond White

Quote:
During his service on the high court, White wrote 994 opinions. He was fierce in questioning attorneys in court, and his votes and opinions on the bench reflect an ideology that has been notoriously difficult for popular journalists and legal scholars alike to pin down...
Thurgood Marshall

Quote:
Marshall served on the Court for the next 24 years, compiling a liberal record that included strong support for Constitutional protection of individual rights, especially the rights of criminal suspects...
Harry Andrew Blackmun

Quote:
Appointed by Republican President Richard Nixon, Blackmun ultimately became one of the most liberal justices on the Court. He is best known as the author of the Court's opinion in Roe v. Wade...
William Hubbs Rehnquist

Quote:
...Considered a conservative... Though he remained a member of the conservative wing of the court, Associate Justices Antonin Scalia and Clarence Thomas were often regarded as more conservative...
John Paul Stevens

Quote:
...A registered Republican when appointed who throughout his life identified as a conservative, Stevens was considered to have been on the liberal side of the court at the time of his retirement...
Sandra Day O'Connor

Quote:
...As a moderate Republican, O'Connor tended to approach each case narrowly without seeking to establish sweeping precedents. She most frequently sided with the Court's conservative bloc...
The point is that you had Justices who were generally considered 'Conservative' and 'Liberal' joining in the opinion.

Since 1982, there's been an increasing trend of SCOTUS upholding Qualified Immunity and applying it to various actors of the Government. However, now, someone we often accuse of being a "activist judge," Justice Sotomayor, is, along with one of our favorites, Justice Thomas, joining in the chorus regarding a need for 'change'...

Quote:
...in 2017, Justice Clarence Thomas analyzed the historical landscape and concluded that qualified immunity reflects “precisely the sort of freewheeling policy choice[s]” that the justices have “disclaimed the power to make.”... And in addition to Justice Thomas, Justice Sonia Sotomayor in recent years has criticized the Supreme Court’s qualified immunity case law, describing it as “sanctioning a ‘shoot first, think later’ approach to policing” that hollows constitutional protection...
Where the accusation of 'activism' comes from is that there is no legislative background; i.e., it's a concept which the Court derived as a 'legal doctrine' without benefit of legislation. Or, if you prefer, it was 'invented' by the Judiciary and, thus, was tantamount to a legislative action; something which, Constitutionally, the Judiciary is ostensibly prevented from doing. However, that too is a source of debate in legal circles insofar as what the Judiciary, particularly SCOTUS, is empowered to do vis a vis 'setting precedent.' Even Justice Scalia noted that Qualified Immunity is (or can be) a 'sensible scheme;' though he objected to the process by which it was invented and has 'evolved'...

Quote:
...We find ourselves engaged, therefore, in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented— rather than applying the common law embodied in the statute...
So, in a 'process' context, you might be able to make the argument that it came about due to 'activism' in the Judiciary. But, what also has to be acknowledged in that context is that it was an activism supported by various ideological bents in the Judiciary due to a generally held 'necessity' for some form of Qualified Immunity.

In other words, times have changed and what was once 'agreed upon' as 'necessary' is now being considered as having been 'taken too far' and in need of retooling. This gets at the core of the problem. Disparate groups agree that it's necessary. Disparate groups agree that something needs to be done in terms of how broadly (and readily) it is now being applied. However, how do you get disparate groups to agree on a demarcation of boundaries?

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Old 11-23-2020, 3:32 PM
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Sorry Trapped but on that particular day in 1982. Those 8 Judges wore the mantle of "activism" along with their robes.

And their ACTIVIST F'up has been incrementally expanded in all the lower courts. As well as SCOTUS.

https://ij.org/frequently-asked-ques...arily%20matter.

[B]
Quote:
“Qualified immunity” is a special protection for government officials the U.S. Supreme Court created in 1982 as an act of judicial policymaking. By default, all government officials are immune from liability if they violate your rights. Whether your rights were actually violated doesn’t necessarily matter.

Under qualified immunity, government officials can only be held accountable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional. If no such decision exists—or it exists, but just in another jurisdiction—the official is immune, even if the official intentionally violated the law.

To show that a right is clearly established, a victim must identify an earlier decision by the U.S. Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If no decision exists, qualified immunity protects the official by default. For example, a Texas appeals court recently held that a prison guard who pepper sprayed an inmate in his locked cell “for no reason” did not violate a clearly-established right because similar cited cases involved guards who had hit and tased inmates for no reason, rather than pepper spraying them for no reason.

Do courts need to decide whether the Constitution was violated before granting qualified immunity?
No. As explained above, the clearly-established test requires a victim to identify a nearly identical earlier decision by the U.S. Supreme Court or a federal appeals court in the same jurisdiction. But thanks to the Supreme Court’s 2009 decision in Pearson v. Callahan, courts may—and frequently do—decide cases without addressing whether the actions at issue violate the Constitution. Such a system fosters what some scholars call “constitutional stagnation” since courts may simply ignore the underlying constitutional issues and decide cases under qualified immunity.


For instance, when a police officer shot a 10-year-old child while trying to shoot a nonthreatening family dog, the Eleventh Circuit U.S. Court of Appeals held that the officer was entitled to qualified immunity because no earlier case held it was unconstitutional for a police officer to recklessly fire his gun into a group of children without justification. The Court also declined to establish that rule. Not only was the officer let off the hook in that case, but the very same officer could act the same way again, and would still be entitled to qualified immunity.


Atrocities of malfeasance and illegal actions by cops, now have a GREEN LIGHT. Leaving citizens adrift in a society trapped between criminals and criminal cops, with NO CHANCE OF LEGAL REDRESS.

Bringing us to the point of far to many instances such as "Jessop v Fresno".

Read that above quote and weep for lost justice. After the Jessop fiasco. Going forward it will be next to impossible for a citizen to prevail in a USC-1983 suit against a cop. Which created the "CIRCLE JERK" vortex of. Every jurisdiction that doesn't ALREADY have a specific 1983 ruling against them for every law on the books nationally. WILL NEVER AGAIN HAVE A 1983 RULING AGAINST THEM.

Another nationwide LICENSE TO STEAL granted to those tasked with protecting citizens from theft. Amid all other abuses conceivable under existing laws that us peons are bound to abide by.
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Old 11-23-2020, 9:16 PM
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Sorry Trapped but on that particular day in 1982. Those 8 Judges wore the mantle of "activism" along with their robes...
And, as I said, you might be able to make that argument from a 'process' standpoint.

However, you are only presenting one-side of the argument and emphasizing the negative effects without recognizing the reasons for the perceived necessity which engendered its creation.

Qualified Immunity: Both Sides of the Debate

Quote:
...It was in 1967 that the U.S. Supreme Court first gave a police officer qualified immunity. In Pierson v. Ray, the U.S. Supreme Court held that a police officer acting in good faith was not liable for a false arrest. The Warren Court had two reasons for giving qualified immunity in the case. First, it wrote that courts had been granting qualified immunity for many years prior to §1983, and that Congress did not specifically ban qualified immunity in that section. The Warren Court then expanded that qualified immunity to acts undertaken by public officials in “good faith." Legal scholars have since questioned this reading of the law. Secondly, and perhaps more important to the Warren Court, the Supreme Court feared that police would not seek to arrest suspects or do their jobs as diligently if they feared being held liable. “A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does" Chief Justice Earl Warren wrote.

Fifteen years later, in Harlow v. Fitzgerald the Supreme Court greatly expanded the doctrine to become closer to what it is today. In that case, an 8-1 decision, the Supreme Court said that public officials have immunity unless the official knew or should have known that their actions violated the plaintiff's constitutional rights. It replaced the previous “good faith" test with something more “objective." This test is now the analysis courts use when determining if qualified immunity protects an officer from a lawsuit...

...However, in the Supreme Court's own words, qualified immunity is an officer-friendly doctrine that protects “all but the plainly incompetent or those who knowingly violate the law."...

...the facts must be “sufficiently clear" that a reasonable officer would understand that they are violating a constitutional or statutory right...

There are several arguments made to continue the doctrine of qualified immunity as it currently exists, including:
  • Officers and public officials need qualified immunity to carry out their jobs. Public officials, and particularly police officers, perform vital tasks that may require split-second decisions...Taking away qualified immunity could lead to officers being hesitant to act when it is most needed.
  • Removing qualified immunity could open up public officials and police to unwarranted lawsuits...
  • Officers do not have absolute immunity...
  • The narrow interpretation of clearly established precedent is appropriate. Officers should not be forced to apply an abstract right under the Constitution to specific circumstances in split-second decisions...
  • Officers must have room to make mistakes or have moments of bad judgment...
Several arguments against qualified immunity as it currently stands include:
  • Liability is necessary to hold officers accountable for excessive force...
  • The fear of rampant lawsuits against police are overblown...
  • The current doctrine as applied today in courts leads to hairsplitting and it is often impossible for plaintiffs to meet the burden.
  • The doctrine is applied inconsistently and can greatly depend on the judge or judges involved in the case...
Both sides have valid points, to one degree or another. Those points are also open to critique. Which is precisely where there is debate and why there are two (or more) 'sides' to the discussion.

How often do we post on this site essentially the same argument as... "Congress did not specifically ban qualified immunity?"

If the law doesn't forbid it, then it is presumed LEGAL, is it not?

Is it 'judicial activism' to apply/note/use as precedent that which is LEGAL?

Thus, the real question isn't even so much in the 'process' by which Qualified Immunity was 'created.' The real question is tied to how it has been expanded and applied by the Courts and whether that expansion/application is merited or even legitimate (or legitimately applied).

The problem, as we are discussing, is one noted by Scalia (see post above) and alluded to at the end of the piece linked to in the above quote where 'experts' are questioning the reading...

Quote:
...We find ourselves engaged, therefore, in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented— rather than applying the common law embodied in the statute...
Quote:
...Qualified immunity provides an imperfect device for achieving the proper balance of the significant interests inherent in any scheme seeking to provide accountability for governmental misconduct...
Or... As I phrased it...

Quote:
Originally Posted by TrappedinCalifornia
In other words, times have changed and what was once 'agreed upon' as 'necessary' is now being considered as having been 'taken too far' and in need of retooling. This gets at the core of the problem. Disparate groups agree that it's necessary. Disparate groups agree that something needs to be done in terms of how broadly (and readily) it is now being applied. However, how do you get disparate groups to agree on a demarcation of boundaries?

Last edited by TrappedinCalifornia; 11-23-2020 at 9:19 PM..
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Old 11-24-2020, 3:04 AM
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Not reposting entire quote. Just the parts that are relevant today, and how we got so far down the slippery slope.


Quote:
...It was in 1967 that the U.S. Supreme Court first gave a police officer qualified immunity. In Pierson v. Ray, the U.S. Supreme Court held that a police officer acting in good faith was not liable for a false arrest.

Fifteen years later, in Harlow v. Fitzgerald the Supreme Court greatly expanded the doctrine to become closer to what it is today. In that case, an 8-1 decision, the Supreme Court said that public officials have immunity unless the official knew or should have known that their actions violated the plaintiff's constitutional rights.
It replaced the previous “good faith" test with something more “objective." This test is now the analysis courts use when determining if qualified immunity protects an officer from a lawsuit...

...However, in the Supreme Court's own words, qualified immunity is an officer-friendly doctrine that protects “all but the plainly incompetent or those who knowingly violate the law."...

...the facts must be “sufficiently clear" that a reasonable officer would understand that they are violating a constitutional or statutory right...

Officers do not have absolute immunity...{no longer true post Jessop}
Everything bolded in the above that I quoted is as if it never existed. The slippery slope that SCOTUS created with their activism in 1982. Outside determining "good faith" on a case by case basis. As in "Pearson v Ray".

Has been added to until after Jessop. It is a BIG HAIRY BLANKET IMMUNITY used by cops who knowingly and willingly overstep the laws they swore to enforce, to cover their butts. Even when they know damn well that their actions are ILLEGAL, AND UNCONSTITUTIONAL.

Quote:
[1].... How often do we post on this site essentially the same argument as... "Congress did not specifically ban qualified immunity?"

[2].... If the law doesn't forbid it, then it is presumed LEGAL, is it not?

[3].... Is it 'judicial activism' to apply/note/use as precedent that which is LEGAL?
^^^That quote is nothing by deflective semantic double speak^^^

[1].... It has never been congress's job to ban SCOTUS creations. Especially BEFORE they create them.
I don't believe they legally can pass laws limiting what SCOTUS can and cannot rule. That would be a definite politicians wet dream.

[2][3] .... Wrong... the LAW DOES FORBID IT! 14th A.... says;...
Quote:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
When SCOTUS created "case law/precedent" on QI. in direct contradiction to the "equal protection" clause of the 14th. Through judicial activism. They created a SPECIAL CLASS of citizens which are now empowered to directly "abridge the privileges or immunities of citizens" and even steal from them at will. [Jessop]


SCOTUS's function is as arbiters of laws. Had they stuck with the narrow focus policy of "good faith basis" post Pearson. Citizens today would not be at the mercy of ROBBER COPS.

That is a good article, thank you. But it was published on June 25, 2020. And conveniently fails to mention JESSOP. And SCOTUSs refusal of cert. on May 18, of 2020. Which in and of itself, is further activism by setting a precedent of "anything goes" for QI. By letting intentional illegal malfeasance on the part of cops. Stand under the umbrella of QI.

SCOTUS created QI...... and greased that first step of the slippery slope.............SCOTUS has broadened the protective scope of QI................SCOTUS now condones theft, and all other illegal acts by cops including blatant Constitutional Rights violations. Under QI. [Jessop]

That sir is ACTIVIST JUDGES at work over the last 38 yrs on the issue of QI.
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Old 11-24-2020, 4:50 AM
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Originally Posted by pacrat View Post
^^^That quote is nothing by deflective semantic double speak^^^
Tell that to those who repeatedly post here that if it's not forbidden by law, then it's legal. In fact, there are a good number of things which are not forbidden by law which may not be right or moral or ethical, but are deemed legal in court. (See the 9th's conclusion in Jessop below.) There is often more than a semantic difference between the terms legal, right, moral, and ethical.

Quote:
Originally Posted by pacrat
[1].... It has never been congress's job to ban SCOTUS creations. Especially BEFORE they create them.
I don't believe they legally can pass laws limiting what SCOTUS can and cannot rule. That would be a definite politicians wet dream.
Okay. But, you then have to rely on the Judiciary to ban the SCOTUS creation of "Qualified Immunity," a Judiciary which, with a broad spectrum of support within the community, created it for what was and still is felt to be necessary reasons.

Quote:
Originally Posted by pacrat
[2][3] .... Wrong... the LAW DOES FORBID IT! 14th A.... says;...

When SCOTUS created "case law/precedent" on QI. in direct contradiction to the "equal protection" clause of the 14th. Through judicial activism. They created a SPECIAL CLASS of citizens which are now empowered to directly "abridge the privileges or immunities of citizens" and even steal from them at will. [Jessop]
First, SCOTUS did not hear the case, which means it's not national precedent. Second, you are misrepresenting the 9th's statement...

Quote:
Appellants’ Fourteenth Amendment claim suffers the same fate. Appellants argue that the City Officers’ theft of their property violated their substantive due process rights under the Fourteenth Amendment. Assuming that to be true, however, the City Officers are entitled to qualified immunity because that right was not clearly established. We have not held that officers violate the substantive due process clause of the Fourteenth Amendment when they steal property seized pursuant to a warrant. The Seventh Circuit is the only circuit that has addressed the related question of whether the government’s refusal to return lawfully seized property to its owner violates the Fourteenth Amendment; it held that the substantive due process clause does not provide relief against that conduct. See Lee v. City of Chicago, 330 F.3d 456, 466–68 (7th Cir. 2003). Because the City Officers could not have known that their actions violated the Fourteenth Amendment’s substantive due process clause, they are entitled to qualified immunity against Appellants’ Fourteenth Amendment claim.

CONCLUSION

We sympathize with Appellants. They allege the theft of their personal property by police officers sworn to uphold the law. If the City Officers committed the acts alleged, their actions were morally reprehensible. Not all conduct that is improper or morally wrong, however, violates the Constitution. Because Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant, the City Officers are entitled to qualified immunity.
Short version, the appellants didn't overcome the test criteria according to the 9th. We can argue whether that analysis was valid/legitimate in that specific case, but you have to be cautious in making it a blanket pronouncement of 'absolute immunity' being conferred, especially on a national basis, due to that decision. In fact, your reference to abridging the privileges and immunities is another way of phrasing the appellant's argument, not the Court's statement...

Quote:
Beyond the effects on constitutional law, Jessup and Ashijian’s lawyers also warned the justices about the real-world consequences of the panel’s decision. “Any police officer in the Ninth Circuit is therefore free to pilfer property listed in a warrant at will and successfully claim immunity if hauled into court,” they wrote. “The decision below will thus expose more than 60 million individuals in nine States to the arbitrary power of every unscrupulous law enforcement officer who enters their home armed with a warrant—an outcome the founders, who fought a revolution in part to end the petty tyranny of officers wielding warrants, would have shuddered to imagine.”
In fact...

Quote:
That is precisely the problem. Legal academics, judges, and even some Supreme Court justices have sharply criticized the Supreme Court’s rulings on qualified immunity in recent years. The judicial doctrine shields state and local officials from federal civil-rights lawsuits if their alleged misdeeds aren’t contrary to “clearly established law.” In some cases, this is an easy hurdle for plaintiffs whose rights are violated to overcome. But as the Ninth Circuit case shows, the high court’s qualified-immunity precedents can often lead to absurd outcomes.
Which is what I've been saying all along; i.e., that how Qualified Immunity is applied today has caused people, across the ideological spectrum, to question whether it has been taken 'too far.' That doesn't mean Qualified Immunity is intrinsically 'bad.' It means that the courts seem to be interpreting too broadly in favor of Government officials when it comes to the test laid out in Harlow v. Fitzgerald.

You're also ignoring (or failing to mention) that...

Quote:
The petitioners’ arguments (and those of the amici curiae who have sought leave to file briefs supporting the petition) all assume that the defendant officers indeed stole petitioners’ property. The respondent City and officers emphasize that they do not concede this point. Respondents categorically deny that they stole petitioners’ property... The record is replete with evidence indicating that the petitioners’ theft accusations are flimsy.
Which is why you see the "assuming" and "if" qualifiers in the 9th's full statement regarding the 14th Amendment and their conclusions. In other words, it was never adjudicated whether the police did, in fact, "steal" the money. That wasn't even the question posed in the application to SCOTUS...

Quote:
Whether it is clearly established that the Fourth Amendment prohibits police officers from stealing property listed in a search warrant.
As the 9th noted, it simply assumes that the underlying crime occurred. In that sense, so do you; i.e., your argument hinges upon the idea that the police are being protected from criminal/unconstitutional actions. The reality is that Qualified Immunity is established prior to adjudication of guilt/innocence. Thus, while common sense may suggest guilt, one cannot presume guilt as part of the 'test' in establishing Qualified Immunity. Which, again, is actually part of the problem being debated. As was indicated in the piece you deemed a "good article," it states...

Quote:
The Supreme Court has told lower courts to waive qualified immunity in cases that are very similar. It is not enough to show that a previous case denied an officer qualified immunity for broadly similar circumstances or actions. Instead, the facts must be “sufficiently clear" that a reasonable officer would understand that they are violating a constitutional or statutory right.
This is where the hang up is. There doesn't appear to be a standard for "sufficiently clear" as it is being applied by the courts. In fact, that is what I just quoted from an 'analysis' of Jessop; i.e., many feel that "qualified-immunity precedents can often lead to absurd outcomes."

Quote:
Originally Posted by pacrat
SCOTUS's function is as arbiters of laws. Had they stuck with the narrow focus policy of "good faith basis" post Pearson. Citizens today would not be at the mercy of ROBBER COPS.
Once again, that's a part of the debate. Flip it. Had SCOTUS stuck with a narrow focus policy, where would Government officials be at? Would they be vulnerable to the same 'whims' of application raising questions about Qualified Immunity, where they would be "at the mercy" of... who?

Quote:
Originally Posted by pacrat
That is a good article, thank you. But it was published on June 25, 2020. And conveniently fails to mention JESSOP. And SCOTUSs refusal of cert. on May 18, of 2020. Which in and of itself, is further activism by setting a precedent of "anything goes" for QI. By letting intentional illegal malfeasance on the part of cops. Stand under the umbrella of QI.
Almost right. It was "Last updated June 25, 2020." I don't know when it was actually written. The fact that it fails to mention Jessop can also be construed to mean that it wasn't considered to set the type of 'precedent' you are claiming it did. But, who knows why editors do what they do?

Quote:
Originally Posted by pacrat
SCOTUS created QI...... and greased that first step of the slippery slope.............SCOTUS has broadened the protective scope of QI................SCOTUS now condones theft, and all other illegal acts by cops including blatant Constitutional Rights violations. Under QI. [Jessop]

That sir is ACTIVIST JUDGES at work over the last 38 yrs on the issue of QI.
You are presenting personal interpretation as 'fact.' As I've pointed out, a couple of times now, rather than 'condoning theft and all other illegal acts by cops,' SCOTUS Justices ARE asking questions, particularly Thomas and Sotomayor; strongly suggesting a reappraisal/retooling is in order.

Last edited by TrappedinCalifornia; 11-24-2020 at 5:18 AM..
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Old 11-24-2020, 5:43 PM
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Originally Posted by pacrat
[2][3] .... Wrong... the LAW DOES FORBID IT! 14th A.... says;...

When SCOTUS created "case law/precedent" on QI. in direct contradiction to the "equal protection" clause of the 14th. Through judicial activism. They created a SPECIAL CLASS of citizens which are now empowered to directly "abridge the privileges or immunities of citizens" and even steal from them at will. [Jessop]
Quote:
First, SCOTUS did not hear the case, which means it's not national precedent. Second, you are misrepresenting the 9th's statement...
Jessop was heard in the 9th. I never inferred otherwise. I also don't recall claiming it was national precedent per se. But did state that SCOTUS created QI. Which is. And has been added to by lower courts. Which the 9th did in Jessop. And SCOTUS affirmed by denying cert. I misrepresented nothing.

LEOs all Give Oath to uphold the Constitution. It is absofreak'nlutely asinine for the court to claim they didn't know stealing property taken with a warrant is illegal. Which grants them a license to steal, under color of court authority. Court issues warrant, then court grants QI in SJ. Stopping and public trial of malfeasance.

Jessop was an atrocity by the 9th that SCOTUS affirmed by cert refusal. Jessop is not a SCOTUS precedent. But it is LAW in the 9th, and citable nationwide as such. And by the 9th granting QI in a Summary Judgement. Effective stopped the courts from ever even hearing any "evidence" of any theft.

Effectively granting a SPECIAL CLASS, blanket immunity for theft under color of a warrant/authority. In 9 states and 2 Island territory jurisdictions, that comprise approx 1/4 of the country. And setting a precedent, that is citable nationwide.

Quote:
Originally Posted by pacrat
SCOTUS created QI...... and greased that first step of the slippery slope.............SCOTUS has broadened the protective scope of QI................SCOTUS now condones theft, and all other illegal acts by cops including blatant Constitutional Rights violations. Under QI. [Jessop]

That sir is ACTIVIST JUDGES at work over the last 38 yrs on the issue of QI.

Quote:
You are presenting personal interpretation as 'fact.' As I've pointed out, a couple of times now, rather than 'condoning theft and all other illegal acts by cops,' SCOTUS Justices ARE asking questions, particularly Thomas and Sotomayor; strongly suggesting a reappraisal/retooling is in order.
BullCh!t..........I've claimed nothing a "fact" that is my own opinion. Must I pepper a post with "IMO"s before you cut the crap of falsely claiming otherwise?

The last sentence in the Jessop conclussion. IS A DROP MIKE MONENT IN TIME. THAT CLEARLY SHOWS THE 9TH'S DISDAIN FOR THE CONSTITUTION.

Quote:
Because Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant, the City Officers are entitled to qualified immunity.
They are IMHO clearly claiming that only Enumerated Rights that they have previously proclaimed are adjudicated Enumerated Rights. Are actually Enumerated Rights. The HUBRIS STENCH is strong in the 9th.

Justices asking questions is a far cry from SCOTUS actually undoing the harm they created for citizens.

Only when they step up, and do as they as a body, have done over 300 other times in the past. Which is overturn themselves. Will there actually be any resolution of the issue of QI. And hey WTH, they may just screw it up worse.

Until that time. IMHO based on what I have read and seen concerning the issue of QI. The Courts hold no justice for citizens victimized by QI protected ROBBER COPS.
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Old 11-24-2020, 7:23 PM
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Well articulated by both. These classic banters are what makes this place special IMO. The classic egg/chicken conundrum. I do tend to lean towards Pacrat's position and agree that Pandora's box was opened by judges who didn't fathom the ramifications of their decisions. it's much too easy to manipulate circumstances to "fit" within the box of immunity. So much so, that it's not uncommon to hear them openly discussed among officers as to "what to say" to achieve desired immunity results. This is precisely why these particular issues continually rear their ugly head and remain so divisive and elusive for equability in application. The answers and solutions won't come easy to be sure.
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Old 11-24-2020, 8:14 PM
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... I misrepresented nothing.
How you are 'misrepresenting' it is that you are placing your personal spin on what the decisions mean. Not to mention you never informed readers that it was heard by the 9th and denied cert by SCOTUS; instead, continually referencing what the role of SCOTUS is. Remember, even in this section of the site, not everyone is up to speed on specific cases.

Quote:
Originally Posted by pacrat
It is absofreak'nlutely asinine for the court to claim they didn't know stealing property taken with a warrant is illegal.
For instance, calling it 'asinine' may be a common sense understanding, one that many people, across the ideological spectrum agree with; but it didn't set the kind of precedent you appeared to be alluding to. As I said...

Quote:
Originally Posted by TrappedinCalifornia
We can argue whether that analysis was valid/legitimate in that specific case, but you have to be cautious in making it a blanket pronouncement of 'absolute immunity' being conferred, especially on a national basis, due to that decision. In fact, your reference to abridging the privileges and immunities is another way of phrasing the appellant's argument, not the Court's statement.
Quote:
Originally Posted by pacrat
Jessop was an atrocity by the 9th that SCOTUS affirmed by cert refusal.
I guess I was too subtle by simply linking to an article surrounding Thomas' dissent in Baxter. Jessop was ONE of, I believe, THREE Qualified Immunity cases SCOTUS denied cert on that week. (I can't remember the name of the 3rd at the moment.) You've just hung your hat on the more egregious case, but it is not the only one out there and not all of them are as intuitively clear cut.

Likewise, as I said, the standard for Qualified Immunity isn't guilt or innocence. In theory, the standard (and the problem) is or was what Thomas said in his dissent in Baxter...

Quote:
Regardless of what the outcome would be, we at least ought to return to the approach of asking whether immunity “was ‘historically accorded the relevant official’ in an analogous situation ‘at common law.’”
It is, in essence, the same argument I've cited a couple of times from Scalia...

Quote:
...We find ourselves engaged, therefore, in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented— rather than applying the common law embodied in the statute...
In application, the standard being used has been muddled; i.e., as the 9th notes in Jessop (bold emphasis mine)...

Quote:
Although courts were formerly required to determine whether plaintiffs had been deprived of a constitutional right before proceeding to consider whether that right was clearly established when the alleged violation occurred... the Supreme Court has since instructed that courts may determine which prong of qualified immunity they should analyze first. Pearson, 555 U.S. at 236. Addressing the second prong before the first is especially appropriate where “a court will rather quickly and easily decide that there was no violation of clearly established law.” Id. at 239. This is one of those cases.
This is something you even highlighted from an article criticizing Qualified Immunity...

Quote:
To show that a right is clearly established, a victim must identify an earlier decision by the U.S. Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If no decision exists, qualified immunity protects the official by default.
That article is not the only one citing this. In the article I provided... Qualified Immunity: Both Sides of the Debate ...

Quote:
The next issue is to determine when a right is “clearly established." Under the current doctrine, a right is clearly established when the Supreme Court or the relevant federal appeals court has already treated the conduct as unconstitutional, or where a public official's conduct is “obviously unlawful"...

The result is that judges now look to past court cases to see whether there is a similar set of facts on record that would put the officer on notice that their actions violated the “clearly established" statutory or constitutional rights of another...

The Supreme Court has told lower courts to waive qualified immunity in cases that are very similar. It is not enough to show that a previous case denied an officer qualified immunity for broadly similar circumstances or actions. Instead, the facts must be “sufficiently clear" that a reasonable officer would understand that they are violating a constitutional or statutory right...
The reason it is now 'muddled' is that it is less likely that a specific precedent can be found which is completely analogous to a given case. Thus, as you saw in Jessop, the 9th did a good deal of "inferring" from other cases they deemed 'precedent.' Thus, what you claim...

Quote:
Originally Posted by pacrat
...it is LAW in the 9th, and citable nationwide as such. And by the 9th granting QI in a Summary Judgement. Effective stopped the courts from ever even hearing any "evidence" of any theft.
...is partially true. It has not effectively stopped the courts; but, it does provide a potential "out" if the judges in a Qualified Immunity case, based on similar circumstances, choose to use it as precedent to infer what they wish.

THAT is the basis of what Scalia, Thomas, Sotomayor, and an host of others are getting at. You are, as I noted before, making the same argument as the appellants in Jessop, declaring it to be a "BIG HAIRY BLANKET IMMUNITY." That is ONE interpretation from ONE SIDE of the discussion. What Scalia, et al. are saying is that the problem is otherwise; i.e., that rather than creating 'binding' precedent, the situation is now 'amorphous' in terms of relying on a given court's interpretation, ostensibly based on some relevant precedent, and is thereby generating a confused/confusing mass of decisions which can be used to 'justify' virtually anything based, not on the law, but on the predilections of a given judge/court.

Their solution is a return to, for lack of a better term, 'black letter law' and determining the relevance of Qualified Immunity based on that. Part of the problem with that approach is that, in essence, it's a "reinvent the wheel" methodology that would still be susceptible to judges/courts inferring 'precedent' in a manner similar to the problem now; just from a wider pool of cases. At least that appears to be part of the counter argument.

What it boils down to is that 'everyone' wants more definitive guidance regarding what is considered Qualified Immunity. As a practical matter, SCOTUS is declaring an inability to do so based on the potential variations, limited number and variety of cases heard with each session, etc. That's why Scalia and Thomas argue for a return to 'common law.'

In another sense, it's been argued that the Court is attempting to shift responsibility to Congress, asking them to "do their job" and legislatively create something akin to "Qualified Immunity." The problem with that is that the courts felt compelled to 'create' it themselves as Congress didn't and still refuses to do so; much for the same reasons being exhibited by the courts, too much complexity. Whatever standard is set will always have exceptions and, thus, someone is always going to be unhappy.

Quote:
Originally Posted by pacrat
I've claimed nothing a "fact" that is my own opinion.
You continue making statements, often in an hyperbolic manner, that THIS is... That's not qualified as "your" opinion. That's an inference of 'fact' and, as I've demonstrated, those 'facts' are often disputed; not by me, but by legal experts.

Quote:
Originally Posted by pacrat
The last sentence in the Jessop conclussion. IS A DROP MIKE MONENT IN TIME. THAT CLEARLY SHOWS THE 9TH'S DISDAIN FOR THE CONSTITUTION.
The last line...

Quote:
As the panel opinion acknowledges, the lack of clearly established law at the time of the incident compels the conclusion that the City Officers are entitled to qualified immunity.
... is exactly what I just showed. It is what I said in my previous post...

Quote:
Originally Posted by TrappedinCalifornia
This is where the hang up is. There doesn't appear to be a standard for "sufficiently clear" as it is being applied by the courts. In fact, that is what I just quoted from an 'analysis' of Jessop; i.e., many feel that "qualified-immunity precedents can often lead to absurd outcomes."
Quote:
Originally Posted by pacrat
They are IMHO clearly claiming that only Enumerated Rights that they have previously proclaimed are adjudicated Enumerated Rights. Are actually Enumerated Rights.
Thus, the word 'enumerated' and the term 'incorporated.' Remember, there are reasons why we are still arguing over what 200+ year old statements actually mean. It's precisely the source of the arguments presented by Living Document proponents; i.e., how do you apply an interpretation of 'original intent' to a modern context? It's why...

Quote:
Originally Posted by pacrat
SCOTUS's function is as arbiters of laws.
...SCOTUS isn't just an arbiter of laws, it is the FINAL arbiter. It's why...

Quote:
Originally Posted by pacrat
Justices asking questions is a far cry from SCOTUS actually undoing the harm they created for citizens.
...SCOTUS starts by asking questions. It's why...

Quote:
Originally Posted by pacrat
Only when they step up, and do as they as a body...
...and/or Congress takes an hand (), it will remain a self-feeding cycle where the 'uniformity' desired might not be possible short of a change to our entire system. As you say...

Quote:
Originally Posted by pacrat
And hey WTH, they may just screw it up worse.

Last edited by TrappedinCalifornia; 11-24-2020 at 8:20 PM..
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Old 11-24-2020, 8:28 PM
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Well articulated by both. These classic banters are what makes this place special IMO. The classic egg/chicken conundrum. I do tend to lean towards Pacrat's position and agree that Pandora's box was opened by judges who didn't fathom the ramifications of their decisions. it's much too easy to manipulate circumstances to "fit" within the box of immunity. So much so, that it's not uncommon to hear them openly discussed among officers as to "what to say" to achieve desired immunity results. This is precisely why these particular issues continually rear their ugly head and remain so divisive and elusive for equability in application. The answers and solutions won't come easy to be sure.
You'll note that I never said I disagreed with what he perceives as the outcome.

What I disagree with is how he is presenting the way we got here and the motives behind it. He is presenting one facet of the argument rather than recognizing the rest of the discussion in terms of how we got where we are.

What I have been doing is, not so much playing Devil's Advocate, as presenting the rest of the discussion so it is understood why there is debate over the remedy. As I just observed, you correctly identify the core of the problem when you say it is too easy to 'manipulate' the outcomes.

Quote:
Originally Posted by TrappedinCalifornia
What Scalia, et al. are saying is that the problem is otherwise; i.e., that rather than creating 'binding' precedent, the situation is now 'amorphous' in terms of relying on a given court's interpretation, ostensibly based on some relevant precedent, and is thereby generating a confused/confusing mass of decisions which can be used to 'justify' virtually anything based, not on the law, but on the predilections of a given judge/court.
Okay. The majority agree on that.

There is also a certain amount of consensus over the idea that both the Court and Congress are avoiding their jobs in terms of creating clarity (or, as you've termed it, 'uniformity'). The problem is that both the courts and Congress have acknowledged by their actions (or lack of action) that...

Quote:
Originally Posted by TrappedinCalifornia
Unfortunately, it is this very 'complexity' which is actually the source of conflict in that it's unlikely that any, single level and/or branch of Government, let alone a specific Government agency, could derive a one-size-fits-all or even a generally applicable set of standards which would simultaneously fit the criterion regionally, socially, Constitutionally, circumstantially, et al.
Which is precisely why this topic is, as you say, "divisive and elusive for equability in application."

Put another way, we know what we want, but we're largely stumped as to how to get there.

Last edited by TrappedinCalifornia; 11-24-2020 at 9:29 PM..
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Old 11-24-2020, 8:53 PM
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Here's a 5 November 2020 decision on Qualified Immunity... Calderone v. City of Chicago

Here's an article, originally published by Bloomberg, by I'll give you the Crain's Chicago Business posting of it so you don't have to 'directly support' Bloomberg. It would seem directly relevant to this site as it involves self-defense with a firearm... This Chicago road rage lawsuit has implications for police shootings

Quote:
Can you be fired from a government job for using a firearm in self-defense? That question arose in a recent decision by the U.S. Court of Appeals for the Seventh Circuit. The answer was ... equivocal...

...The story began back in 2017, when a city employee named Keli Calderone, while off duty, was involved in what the court called a “road rage” incident with another driver. Both drivers exited their cars. In the argument that followed, the other driver grabbed Calderone by the hair and threw her to the ground. At that point, Calderone pulled a handgun, which she was licensed to carry, and shot her antagonist, who was seriously injured but survived.

Calderone was arrested and subsequently indicted for attempted murder. Her employer, the city’s Office of Emergency Management and Communications, held a termination hearing. Rejecting her claim that the shooting was in self-defense, the office fired her. Ten months later, a state judge acquitted Calderone of the criminal charges on the ground of justified self-defense. The judge found that having been pushed to the ground, Calderone was “in a vulnerable position to be further injured and subjected to additional great bodily harm.”

Following her acquittal, Calderone was reinstated. Nevertheless, she filed suit against the city for violating her constitutional rights. Also named as defendants were two officials at the agency that employed her. The trial court dismissed the lawsuit, ruling that those officials were protected by qualified immunity because they could not reasonably have been expected to know that Calderone’s actions constituted an exercise of her constitutional rights.

The Seventh Circuit agreed. The panel noted that it had been unable to turn up “a single decision considering the circumstances in which discharging a firearm constitutes self-defense for purposes of the Second Amendment.” Thus, wrote the judges, the question “is a matter of first impression,” for which qualified immunity “is particularly appropriate.” In other words, if the courts haven’t addressed the question, government officials can’t be expected to know the answer...

...The Seventh Circuit’s lengthy response boils down to the proposition that there’s a difference between saying a reasonable government official must surely know that there’s a right to use a gun to defend oneself (which is obviously true) and saying that the same reasonable official also must surely know that a particular set of actions on a particular occasion constitutes the exercise of that right...

The Calderone case isn’t about harm done by law enforcement, but it presents the same challenge: Why should suits against government officials for violation of constitutional rights be limited by what the courts have already decided? Surely we can reasonably expect all public servants to operate with a degree of common sense...
More precisely, the 7th said...

Quote:
Calderone then sued the City and her supervisors in federal court, claiming, among other things, that the City fired her in retaliation for her exercise of her Second Amendment rights. The City moved to dismiss the claims, arguing that Calderone’s conduct was not within the scope of activity protected by the Second Amendment. The district court granted the motion, reasoning that even if Calderone does have a constitutional right to discharge her firearm in self-defense, qualified immunity shielded her supervisors from suit because caselaw has not clearly established that right. We affirm the district court on the sole ground that Calderone’s supervisors are entitled to qualified immunity.
The piece from Bloomberg (and the copy from Crain's Chicago Business) was published... TODAY.

Interesting timing related to this thread and illustrative of the "has not clearly established" rationale which is being increasingly... 'abused' or 'misapplied.'

Not to mention the perceptible thumbing of the nose at Heller.

Last edited by TrappedinCalifornia; 11-24-2020 at 8:59 PM..
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Old 11-25-2020, 12:43 AM
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... I misrepresented nothing.
Quote:
How you are 'misrepresenting' it is that you are placing your personal spin on what the decisions mean. Not to mention you never informed readers that it was heard by the 9th and denied cert by SCOTUS; instead, continually referencing what the role of SCOTUS is. Remember, even in this section of the site, not everyone is up to speed on specific cases.
I've still not misrepresented anything. No matter how many times you make the spurious prevaricative claim otherwise. I have posted my opinions of facts. I never represented my opinions as FACTS.

Are you attempting to Goebbels me?

Now lets look back at what WAS REALLY SAID WHEN. post 13

Quote:
QI.....One such QI legal atrocity is "Jessop v Fresno". $225,000 split between 2 crooked thieving cops is a NON ISSUE for LEGAL redress. QI invoked, and they are free to go.
Gee, I don't see a mention of it being a SCOTUS case.

POST 24
Quote:
That is a good article, thank you. But it was published on June 25, 2020. And conveniently fails to mention JESSOP. And SCOTUSs refusal of cert. on May 18, of 2020. Which in and of itself, is further activism by setting a precedent of "anything goes" for QI. By letting intentional illegal malfeasance on the part of cops. Stand under the umbrella of QI.
POST 25 You said;
Quote:
First, SCOTUS did not hear the case, which means it's not national precedent. Second, you are misrepresenting the 9th's statement...
AGAIN, I never said it was a SCOTUS case. I did clearly state that SCOTUS refused cert. Thus condoning lower court holding. Which also makes it CLEARLY NOT A SCOTUS CASE! And since Fresno is in Ca., also makes it a 9th Circus case which was denied cert.

I try to NOT CREATE the walls of text Trapped is so very fond of. And I have other interests that don't include bringing members "UP TO SPEED" on cases I have mentioned in posts. All are free to google them if they choose.

ETA.... another asinine accusation, which was self refuted in the same post, by the some prevaricator.

POST 28 again

Quote:
How you are 'misrepresenting' it is that you are placing your personal spin on what the decisions mean. Not to mention you never informed readers that it was heard by the 9th and denied cert by SCOTUS; instead, continually referencing what the role of SCOTUS is. Remember, even in this section of the site, not everyone is up to speed on specific cases.
Then later in same post 28 the baseless repeat accuser posted this quote of mine.
Quote:
Quote:
Originally Posted by pacrat
Jessop was an atrocity by the 9th that SCOTUS affirmed by cert refusal.
AND also reposting a quote of mine in reference to Jessop.
Quote:
Quote:
Originally Posted by pacrat
...it is LAW in the 9th, and citable nationwide as such. And by the 9th granting QI in a Summary Judgement. Effective stopped the courts from ever even hearing any "evidence" of any theft.
And again with re quoting my previous posts.

Quote:
Quote:
Originally Posted by pacrat
The last sentence in the Jessop conclussion. IS A DROP MIKE MONENT IN TIME. THAT CLEARLY SHOWS THE 9TH'S DISDAIN FOR THE CONSTITUTION.
Sad that you cast so many aspersions. Then prove yourself a prevaricator by posting quotes of mine that PROVE your own lack of honesty.

EVER THINK OF BECOMING A JUDGE AND JOINING THE 9TH CIRCUS.

Last edited by pacrat; 11-25-2020 at 1:20 AM..
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Old 11-25-2020, 2:10 AM
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...I try to NOT CREATE the walls of text Trapped is so very fond of. And I have other interests that don't include bringing members "UP TO SPEED" on cases I have mentioned in posts. All are free to google them if they choose.
When you're using them as the core basis of your argument, you probably should. It doesn't take a 'wall of text.' It simply takes a sentence or two, with a link. That's particularly true when you, once, note that it's "Jessop v. Fresno" (Jessop v. City of Fresno), but almost exclusively refer to it simply as "Jessop," never having provided a link and only a perfunctory (not to mention a bit hyperbolic) explanation of what the case involved.

Yes. I reference it as Jessop in direct response to you; but, it wasn't necessarily my duty to clarify in that you are the one who introduced it, based a large part of your argument upon it, etc. Yet... I was the one who did provide a link to the case, links to analyses of the case, and quotes from the case for context of not only my replies, but your assertions. In other words, I gave readers a context they didn't have to 'search out' to get 'up to speed' on our discourse.

Quote:
Originally Posted by pacrat
ETA.... another asinine accusation, which was self refuted in the same post, by the some prevaricator.
Would you have been happier if I'd chosen the word... 'emphasized?' Again, a passing mention isn't the same as providing context; particularly given your claims of setting national precedent.

Quote:
Originally Posted by pacrat
Sad that you cast so many aspersions. Then prove yourself a prevaricator by posting quotes of mine that PROVE your own lack of honesty.

EVER THINK OF BECOMING A JUDGE AND JOINING THE 9TH CIRCUS.
What's 'sad' is that a reasonably spirited debate is over in that, as I've often maintained, when you've got nothing put insults to hurl, it means you're out of effective arguments to make.

It's unfortunate that what you failed to pick up on is that what I have been demonstrating is that your posts are so focused on hyperbolic assertions that if you'd spent at least as much effort in providing context for those assertions as you have epithets at me, judges, the courts, "Leftists," et al., there wouldn't have been a need for me (or anyone else) to clarify not only where your arguments stem from, but why they represent a somewhat misleading sense of how things got to where they are and what certain decisions actually represent.

Not to mention why the solution isn't as 'simple' as 'eliminating' Qualified Immunity to bring 'justice' back to the Judiciary and convicting whomever you deem as "robber cops" to bring a sense of 'fair play' back to law enforcement.

As I've said, repeatedly, throughout this thread, the problem with how Qualified Immunity has been (mis)applied has been amply identified; not by me, but by Justices such as Thomas and Sotomayor, by legal experts, and alluded to in numerous decisions. The fact that there is no 'simple solution' to the problem is evidenced by the fact that, for decades, no one has been able to derive one which would be effective and accepted.

That is why the debate exists and takes more than 'bumper sticker' pronouncements to discuss. It's why, across the ideological spectrum, reams of paper have been used and 'walls of text' have been posted regarding the topic. Again... we know what we want, but we're largely stumped as to how to get there.

Unfortunately, hyperbole, insults, and acontextual assertions don't necessarily help with the impasse. Otherwise, we'd likely have been there long ago.
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Old 11-25-2020, 10:35 AM
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The reality is that Qualified Immunity is established prior to adjudication of guilt/innocence.
I think that is the problem/answer right there. The current invocation allows cases to to be dismissed without hearing, or settlement, of facts. Simultaneously the bar that must be met to get past QI requires facts. The logical barrier essentially gives every official QI.

That would suggest a procedural solution, move the QI question to elsewhere in the process. Sentencing perhaps?
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Old 11-25-2020, 4:18 PM
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I think that is the problem/answer right there. The current invocation allows cases to to be dismissed without hearing, or settlement, of facts. Simultaneously the bar that must be met to get past QI requires facts. The logical barrier essentially gives every official QI.

That would suggest a procedural solution, move the QI question to elsewhere in the process. Sentencing perhaps?
It's certainly part of the discussion. At issue is the Judiciary's desire to 'balance' the rights/protections of Government actors doing their job(s) responsibly vs. those who act "irresponsibly" and the public resources necessary to engage in such adjudication. In that vein, you might find this an interesting read... How Qualified Immunity Fails

Quote:
...The Supreme Court’s original rationale for qualified immunity was to shield officials from financial liability...

The Supreme Court’s decision in Harlow v. Fitzgerald, fifteen years after Pierson, expanded the policy goals animating qualified immunity. The Court explained in Harlow that qualified immunity was necessary not only to protect government officials from financial liability, but also to protect against “the diversion of official energy from pressing public issues,” “the deterrence of able citizens from acceptance of public office,” and “the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’”...

In subsequent cases, the Court has focused increasingly on the need to protect government officials from burdens associated with discovery and trial, with the expectation that qualified immunity can protect government officials from those burdens...
It would appear that placing Qualified Immunity determination prior to adjudication for the actual action would be consistent with protections against 'diversion of official energies' and 'discovery/trial.' This would be particularly true in cases where the Government actor is, in fact, 'guilty' of the accused action, but was 'justified' in the action.

But, that would be the core issue involved with your suggestion - At what point should 'justification' be determined and who gets to decide that? Such is directly addressed in the article as to what has led to the "not clearly established" issue...

Quote:
...In 2001, the Supreme Court held in Saucier v. Katz that a court engaging in a qualified immunity analysis must first decide whether the defendant violated the plaintiff’s constitutional rights and then decide whether the constitutional right was clearly established. The Court insisted on this sequence because it would allow “the law’s elaboration from case to case . . . . The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.”

Eight years later, in Pearson v. Callahan, the Court reversed itself and concluded that Saucier’s two-step process was not mandatory. In reaching this conclusion, Justice Alito, writing for the Court, relied heavily on the fact that courts considered the process mandated by Saucier to be unduly burdensome. Justice Alito also explained that the process wasted the parties’ resources, writing that “Saucier’s two-step protocol ‘disserve[s] the purpose of qualified immunity’ when it ‘forces the parties to endure additional burdens of suit—such as the costs of litigating constitutional questions and delays attributable to resolving them—when the suit otherwise could be disposed of more readily.’” Concerns about the burdens of litigation therefore led the Court to allow lower courts not to decide the first question—whether the conduct was unconstitutional—if they could grant the motion on the ground that the right was not clearly established...
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Old 11-25-2020, 4:53 PM
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It would appear that placing Qualified Immunity determination prior to adjudication for the actual action would be consistent with protections against 'diversion of official energies' and 'discovery/trial.' This would be particularly true in cases where the Government actor is, in fact, 'guilty' of the accused action, but was 'justified' in the action.

But, that would be the core issue involved with your suggestion - At what point should 'justification' be determined and who gets to decide that? Such is directly addressed in the article as to what has led to the "not clearly established" issue...
I would agree the current determination within the process is inline with the concept of prevention of diversion; it is however completely lacking on the topic balance and I cannot see an argument otherwise (of course, I only play a lawyer on CG). The idea that a weaker version of QI might "dampen the ardor" is perfectly aligned with what everyone is asking for.

It seems to me that the question of "justified" is a question of fact. Aren't those supposed typically handled by a jury (or judge/panel acting n lieu thereof)?
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Old 11-25-2020, 6:28 PM
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I would agree the current determination within the process is inline with the concept of prevention of diversion; it is however completely lacking on the topic balance and I cannot see an argument otherwise (of course, I only play a lawyer on CG). The idea that a weaker version of QI might "dampen the ardor" is perfectly aligned with what everyone is asking for.

It seems to me that the question of "justified" is a question of fact. Aren't those supposed typically handled by a jury (or judge/panel acting n lieu thereof)?
That is the perceived problem with the current 'balance.' I'd have to guess that the scale is tipped in favor of the Government actor to prevent 'emotion of the moment' rulings/awards and "even if 'X' was 'justified,' my client's rights were infringed upon, so now we have to determine the degree of justification and the degree of culpability." (Unstated in some instances would be the degree of payment a client can be assessed and/or the degree of free advertising which can be garnered in the media... Otherwise known as largely frivolous suits, which is what, I believe, the original intent was concerned with protecting against.)

To avoid all that, it's my suspicion that the courts have been 'hiding' behind the fig leaf of "not clearly established;" as opposed to nefarious judges/Justices, from across the ideological spectrum, going 'activist' in near universal protection of Government officials. (Although, I'm sure there is a modicum of 'activism' where the interest is in protecting judges from their own decisions as well.)

As you suggest, questions of fact are primarily the function of a jury. But, as things currently stand, the courts have 'erred' in favor of determining whether Qualified Immunity would be applied prior to expending the effort to determine 'fact' (e.g., justification). Why? The question of Qualified Immunity may require some 'facts,' but it is largely a question of law; which falls within a judge's purview and can be decided without allowing for the introduction of evidence/witnesses. That is particularly true when you recall what I highlighted in Post #28...

Quote:
The next issue is to determine when a right is “clearly established." Under the current doctrine, a right is clearly established when the Supreme Court or the relevant federal appeals court has already treated the conduct as unconstitutional, or where a public official's conduct is “obviously unlawful"...

The result is that judges now look to past court cases to see whether there is a similar set of facts on record that would put the officer on notice that their actions violated the “clearly established" statutory or constitutional rights of another...

The Supreme Court has told lower courts to waive qualified immunity in cases that are very similar. It is not enough to show that a previous case denied an officer qualified immunity for broadly similar circumstances or actions. Instead, the facts must be “sufficiently clear" that a reasonable officer would understand that they are violating a constitutional or statutory right...
What I've inferred from that is 'a possible reason' why Thomas suggested the "at least" adjustment also presented in that post from his dissent in Baxter...

Quote:
Regardless of what the outcome would be, we at least ought to return to the approach of asking whether immunity “was ‘historically accorded the relevant official’ in an analogous situation ‘at common law.’”
Put another way, what Thomas is giving nod to is the idea that you are not or cannot up end the whole process in one swoop of the pen and the desired outcome may not necessitate it. It's taken decades to reach this point and it's gonna take some time to fix it.

My take away is that he's suggesting an intermediary 'remedy,' the equivalent of determining whether there is a real (as opposed to a frivolous) question regarding justification before 'blindly' applying Qualified Immunity. If there is such a question... THEN... the question of whether Qualified Immunity applies can be determined based on whether the Government actor is traditionally afforded such protection in similar circumstances rather than... A directly analogous case cannot be found or There is some potential justification, therefore Qualified Immunity applies...

It would still be largely a role for a judge rather than a jury, but would be a step in the direction you are suggesting. But, that also reminds us that BALANCE is what is being sought, not overt and complete elimination. For some, including Scalia (and, likely, Thomas), that 'balance' is something for the Legislature to determine. Others feel it is largely a Judicial function in that it requires analysis of individual circumstances related to the specific case. Which is part of why Scalia and, now, Thomas argue that the analysis should be based in 'common law' as opposed to whether direct precedent exists.

Anyway, that's my take.

Last edited by TrappedinCalifornia; 11-25-2020 at 11:16 PM..
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  #37  
Old 11-26-2020, 3:26 AM
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When you're using them as the core basis of your argument, you probably should. It doesn't take a 'wall of text.' It simply takes a sentence or two, with a link. That's particularly true when you, once, note that it's "Jessop v. Fresno" (Jessop v. City of Fresno), but almost exclusively refer to it simply as "Jessop," never having provided a link and only a perfunctory (not to mention a bit hyperbolic) explanation of what the case involved.
PLESSY.....MIRANDA.....HELLER.....MCDONALD.....PER UTA.....BROWN.....ROE

Sorry, but your latest deflective obsfucation doesn't change the FACT that you made multiple false accusations to cast aspersions on me. Then proved yourself to be not simply mistaken. Because multiple repeats of the same unfounded false accusations. Which you knew to be untrue. Rises to the level of willful prevarication. Especially considering your self incriminating muck up of post 28. How about you getting "UP TO SPEED" on the English language. https://www.google.com/search?q=misr...hrome&ie=UTF-8

Quote:
mis·rep·re·sent
verb
give a false or misleading account of the nature of.
THAT'S WHAT YOU DID repeatedly................NOT WHAT I DID ever

Quote:
Would you have been happier if I'd chosen the word... 'emphasized?' Again, a passing mention isn't the same as providing context; particularly given your claims of setting national precedent.
Quote:
[MY ONLY USE OF THE WORD "PRECEDENT" IN THIS THREAD, WAS HERE IN POST 24].....
That is a good article, thank you. But it was published on June 25, 2020. And conveniently fails to mention JESSOP. And SCOTUSs refusal of cert. on May 18, of 2020. Which in and of itself, is further activism by setting a precedent of "anything goes" for QI. By letting intentional illegal malfeasance on the part of cops. Stand under the umbrella of QI.
Please note that "national" isn't used anywhere. So another of you own "SPINS" of what was actually said.
But to clarify my premise for my 'precedent' opinion. Jessop was a published Federal Case that set another bad QI precedent in the 9th. SCOTUS denied cert and let it stand. It is now citable precedent nationwide in all circuits. WHICH IS A FACTUAL STATEMENT.

Quote:
What's 'sad' is that a reasonably spirited debate is over in that, as I've often maintained, when you've got nothing put insults to hurl, it means you're out of effective arguments to make.
What's sad is that it was you that showed deep seated dishonesty. By REPEATEDLY making patently false accusations. THEN PROVE YOURSELF A PREVARICATOR IN POST 28. By posting my quotes that you disingenuously claimed didn't exist. IN THE SAME POST!

You tripped yourself in post 28 and shined a light on your dishonesty.

Now you try to play the victim that somebody "insulted".

You lack the integrity to even admit your false accusations, EVEN AFTER YOU OUTED YOURSELF.

Quote:
there wouldn't have been a need for me (or anyone else) to clarify not only where your arguments stem from, but why they represent a somewhat misleading sense of how things got to where they are and what certain decisions actually represent.
A NEED,..... really A NEED!...................Here's a hint Mr HUBRIS.

NOBODY NEEDS YOU TO CLARIFY MY OPINIONS, OR WHAT THEY ARE PREMISED ON.

I don't need you to speak for me.......EVEN THOUGH YOU HAVE REPEATEDLY TRIED TO PUT WORDS IN MY MOUTH, AND MISREPRESENTED WHAT I'VE ACTUALLY SAID.

If someone doesn't understand my opinion or what I based it on. They only need to ask. I WILL REPLY AND CLARIFY.

Well anyone but you that is. Attempting honest discourse with known prevaricators is an exercise in futility that I don't have time for.
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Old 11-26-2020, 7:45 AM
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Originally Posted by pacrat View Post
PLESSY.....MIRANDA.....HELLER.....MCDONALD.....PER UTA.....BROWN.....ROE

Sorry, but...


At this juncture, you are certainly free to ignore the thread; particularly as you appear less interested in speaking to the topic and more interested in flaming me (not to mention the Judiciary, the police, etc.).

Insofar as your accusations of deflection, people are free to go back and read the exchanges. I will provide you a single example, however, of the impression you created and claiming you never used the word "national" is dancing on the head of a pin...

Quote:
Originally Posted by pacrat
That is a good article, thank you. But it was published on June 25, 2020. And conveniently fails to mention JESSOP. And SCOTUSs refusal of cert. on May 18, of 2020. Which in and of itself, is further activism by setting a precedent of "anything goes" for QI. By letting intentional illegal malfeasance on the part of cops. Stand under the umbrella of QI.
When I clarified that it was not "national precedent," you then qualified your statement (bold/italics emphasis mine)...

Quote:
Originally Posted by pacrat
Jessop was heard in the 9th. I never inferred otherwise. I also don't recall claiming it was national precedent per se. But did state that SCOTUS created QI. Which is. And has been added to by lower courts. Which the 9th did in Jessop. And SCOTUS affirmed by denying cert. I misrepresented nothing.

LEOs all Give Oath to uphold the Constitution. It is absofreak'nlutely asinine for the court to claim they didn't know stealing property taken with a warrant is illegal. Which grants them a license to steal, under color of court authority. Court issues warrant, then court grants QI in SJ. Stopping and public trial of malfeasance.

Jessop was an atrocity by the 9th that SCOTUS affirmed by cert refusal. Jessop is not a SCOTUS precedent. But it is LAW in the 9th, and citable nationwide as such. And by the 9th granting QI in a Summary Judgement. Effective stopped the courts from ever even hearing any "evidence" of any theft.

Effectively granting a SPECIAL CLASS, blanket immunity for theft under color of a warrant/authority. In 9 states and 2 Island territory jurisdictions, that comprise approx 1/4 of the country. And setting a precedent, that is citable nationwide.
...leaving non 'legal experts' with an impression that it is, effectively, national precedent. As I explained...

Quote:
Originally Posted by TrappedinCalifornia
...Thus, as you saw in Jessop, the 9th did a good deal of "inferring" from other cases they deemed 'precedent.' Thus, what you claim...is partially true. It has not effectively stopped the courts; but, it does provide a potential "out" if the judges in a Qualified Immunity case, based on similar circumstances, choose to use it as precedent to infer what they wish...
In other words, it may or may not be cited, it may even be persuasive, but it is not binding nationally. (Persuasive and Binding being forms of authority.) That is a factual statement and it is also an important distinction. (Perhaps you can't see it because you understood what you meant; something that wasn't necessarily, potentially, as crystal clear to 'everyone' reading the thread.)

What you appear to desire is making pronouncements based on your understanding of things and only 'clarifying' if someone asks. In a sense, you are writing/posting for those who are, essentially, already 'in the know.' In a discussion (What Anonymous Ghost described as: "These classic banters are what makes this place special IMO."), the others involved will often seek clarity or seek to infuse the clarity (if they can... e.g., remember, non-members) they believe is needed by showing their own understanding of things. Those understandings may not agree with each other; but, that leads to another aspect regarding our relative contributions to this thread thus far.

One of the laments which was occurring just prior to my joining the site was the lack of documentation being provided to support the opinions/pronouncements being promoted so that readers (which includes non-members who can't "ask you" for clarification) might clarify things for themselves. I have done exactly that, offering my take, backed up by quotes from and links to those cases and the analyses which helped form my understanding.

I've been frequently accused of posting 'walls of text.' In a sense and from a certain perspective, that could be considered 'true.' (Although, as I have maintained, if such 'length' is inappropriate, it's a simple fix to eliminate the possibility by limiting the word/character count for a given post; something others skirt by making multiple, sequential posts to create the perception that they've been 'short and sweet' while, often, equalling or exceeding my word count from a single post.)

However, given the limitations to communication on the Internet, where readers cannot 'hear' inflection or 'see' body language, it's often necessary to infuse such 'signals' into the threads by the only means available... words. Since there are limitations to that legally and practically, links help; often with judicious quotes from those links which add to the context, but also add to the word count or the perceived 'wall of text.' I realize that, for some, such is incongruous for what they wish to 'get out of' or 'put into' their experience on this (and many/most) Internet forums. Thus, their posts are often 'truncated' or 'missing' the emphasis needed to effectively convey what they thought/felt they were saying. (Such is further complicated by those who did 'get it' from what was said; particularly those who favor 'shorter' posts, but also tend to have either the subject background or a sufficient awareness of the poster or both to give them a leg up.)

Considering the invective you've hurled at Qualified Immunity and all those associated with it, your opinion of it is clear; even if your 'presentation' of things has been a bit... lacking... in emphasis (which, when combined with the invective and your opinion, can and has led to potential misrepresentation/misunderstanding). Perhaps you are not aware and/or cannot see how what you said is/was not or might not be taken as what you thought you were saying due to the emotional involvement you have with the judicial doctrine. Considering the invective you continue to throw my way, it's clear that my 'challenging' you regarding the 'absoluteness' of your understanding and how you present it has... rankled.

That doesn't make me a 'victim' and it also doesn't make me 'wrong' in what I've said or an example of any of the 'names' you've labeled me with.

At this point, I suggest we allow others to participate in the topic of the thread rather than continuing to turn this into a 'back and forth' between the two of us. I'm sure there are those who agree with you. I'm also fairly certain there are those who agree with me. However, I suspect that the majority are now at or quickly approaching a point where they too are going... ... based on the 'topic drift' from Qualified Immunity to what appears to be a 'personal issue.' Meanwhile, good information is getting 'buried' in the process.

If you take that as a 'condescending wall of text' smacking of 'hubris,' so be it. But, as I said, you're free to ignore the thread from here on out. You've made whatever point you think you needed to make and I've now 'explained' more than I cared to. How about if we let it go at that?

Last edited by TrappedinCalifornia; 11-26-2020 at 8:25 AM..
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Old 11-26-2020, 2:02 PM
pacrat pacrat is offline
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You started the flaming by falsely claiming I misrepresented the issue of QI by stating my opinion. And that I presented my opinions as fact. All shown in YOUR OWN WORDS to be false.

Then falsely claimed I said many things I didn't say, or infer. And didn't say things I definitely did. As evidenced in your own posts.

You spent all that time attempting to denigrate myself, and my opinions with your own false claims, deflections, and obsfucations.

Then proved yourself to be a dishonest prevaricator in POST 28 for all to see.

All I did was point out your multiple lapses of integrity and honesty.

And still you lack the integrity, and honesty to admit it.

Quote:
Attempting honest discourse with known prevaricators is an exercise in futility that I don't have time for.


But I will steadfastly defend myself and my opinions from those that make false claims against me. As YOU have done!
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Old 11-26-2020, 7:07 PM
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Originally Posted by librarian72 View Post
...The current invocation allows cases to to be dismissed without hearing, or settlement, of facts...
As a follow-up to the article I provided in my response above, here is a 2015 piece... THE NEW QUALIFIED IMMUNITY ... from the Southern California Law Review which details an attempt to empirically demonstrate...

Quote:
...By analyzing over 800 published and unpublished qualified immunity decisions, this Article offers the first comprehensive study on the effects of Pearson in the federal courts of appeals. The results are revealing. Most important, this Article shows that Pearson’s procedural rule may affect the substantive development of constitutional law in at least three ways. First, the data suggest that concerns about “constitutional stagnation” may contain some truth. Specifically, although appellate courts are still deciding constitutional questions most of the time, they may not be deciding certain types of questions. Second, there is disparity among circuits regarding whether and how courts are reaching constitutional questions after Pearson. Because circuit courts frequently follow each other’s cases, this disparity may give certain circuits an outsized voice regarding constitutional law. And third, it is possible that Pearson may have an asymmetric impact on constitutional doctrine because of the potential overlap between judges’ substantive constitutional views based on their judicial ideologies and their procedural willingness to decide constitutional questions. Over the long run, this asymmetry between judges may shift the substance of constitutional precedent...
It's a 65 page article. But, you might notice...

Quote:
...Qualified immunity, however, is more than just substantively contested; it also is procedurally problematic. Because a plaintiff must satisfy both parts of the test, a court often could dismiss a civil rights suit without reaching the merits of the constitutional claim. This is particularly true for situations involving new technologies, like Tasers, or new factual or political settings. After all, it is difficult to find “clearly established” law in cases of first impression. So what is a court confronting a novel claim to do? There are at least two options—neither ideal.

First, a court could simply rule against the plaintiff without reaching the constitutional question. In ordinary cases, where a plaintiff cannot satisfy the whole of its burden, a busy court often just dismisses the suit without addressing all the elements of the claim. The same could happen in suits for constitutional torts...

Second, even when the right is not clearly established, a court could decide the constitutional question anyway—thereby setting markers down for future litigants. A court taking this path could reason that although the plaintiff would not be benefited, it is necessary to decide the constitutional question so that doctrine remains fresh as technology and circumstances evolve...
Some of the numbers?

Quote:
...in our post-Pearson sample of 844 published and unpublished circuit decisions that encompass 1,460 total claims, federal courts of appeals exercised their discretion under Pearson to reach constitutional questions with respect to about half of the claims considered (45.5% or 665 claims).

Roughly a quarter of the time (26.7% or 390 claims) courts did not choose to exercise their discretion, opting instead to just declare that the right was not clearly established as was made permissible per Pearson... The remainder (27.7% or 405 claims) involved claims in which the court determined it lacked any Pearson discretion because the constitutional right was clearly established at the time of the violation. In other words, in those cases the court denied qualified immunity...

On the other hand, if one is concerned not only with courts reaching constitutional questions, but also with courts finding constitutional violations where the law is not clearly established (in other words, in the pure Saucier manner), the numbers may be less encouraging. In only one in twenty instances (5.0% or 53 claims) in which qualified immunity was granted did the court recognize a constitutional violation that was not clearly established but that, because of the court’s decision, would be in future cases. This means that in the overwhelming majority of cases in which courts opt to use their discretion to decide the constitutional merits, they are concluding that no right has been violated...
In relation to your concern...

Quote:
...Looking at how Pearson is applied, it appears that circuit courts are deciding constitutional questions more often than not, thus mitigating some of the fear that Pearson would lead to constitutional stagnation. That said, courts appear to be finding constitutional violations at a lower rate after Pearson, which lends some credence to stagnation concerns...
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