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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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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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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?

Last edited by TrappedinCalifornia; 11-23-2020 at 7:50 AM..
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  #22  
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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  #23  
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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  #24  
Old 11-24-2020, 3:04 AM
pacrat pacrat is offline
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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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^^^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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