2nd Amendment Rights Violation Lawsuits?

[RANGER295]

My understanding is that qualified immunity does not protect against civil rights violations or perhaps more properly put, when one's constitutional rights are clearly violated and the government official reasonably should have known that the action violated a constitutional right.

Now, in multiple cases the Supreme Court has clearly ruled that the second amendment is an individual right. What exactly that individual right applies to granted is still being hashed out but it clearly is an individual right.

The lawsuits challenging the laws individually are arduous and take it seems a decade or more to finalize. I believe taking a civil litigation approach could be quicker.

Could our side start filing violation of rights suits against individual officials enforcing and administering laws and programs that violate constitutional rights? Following orders is not a defense for a violation of rights. These type of suits could be not only against law enforcement but also for example bureaucrats that administer CCW programs or other regulations. Essentially the goal would be to nullify a law because law enforcement and bureaucrats would be personally afraid to enforce it or administer it. It may take a public information campaign to make sure that everyone reasonably knows the 2nd Amendment is an individual right

I would think the benefits to this approach would be potentially quicker outcomes, pockets that are not nearly as deep as challenging the state directly, and my understanding is if we had a loss in this type of case it would not necessarily establish bad case law to the same extent one of our actual legal challenges would.

I cannot be the first one to have this thought so what am I missing?

[Robotron2k84]

Piercing QI can have a pretty high bar, and the courts have to agree that abuse happened. Given the makeup of the Ninth, they will always (through en banc) defer to legislative authority, so long as it’s left-leaning. U.S.C. 1983 cases are federal.

Unless SCOTUS continually polices the Ninth, the appeals court will get their way, and the last couple of QI cases to hit SCOTUS have been decided in favor of QI, and not against it.

[mdimeo]

[40calfunk]

USC 1983 case just filed at the end of June in USDC-Eastern District (Frye v. Sheriff Withrow) for denial of LTC renewal and lack of due process...out of San Joaquin County.

Thread here.

Complaint here.

[RickD427]

My understanding is that qualified immunity does not protect against civil rights violations or perhaps more properly put, when one's constitutional rights are clearly violated and the government official reasonably should have known that the action violated a constitutional right.

Now, in multiple cases the Supreme Court has clearly ruled that the second amendment is an individual right. What exactly that individual right applies to granted is still being hashed out but it clearly is an individual right.

The lawsuits challenging the laws individually are arduous and take it seems a decade or more to finalize. I believe taking a civil litigation approach could be quicker.

Could our side start filing violation of rights suits against individual officials enforcing and administering laws and programs that violate constitutional rights? Following orders is not a defense for a violation of rights. These type of suits could be not only against law enforcement but also for example bureaucrats that administer CCW programs or other regulations. Essentially the goal would be to nullify a law because law enforcement and bureaucrats would be personally afraid to enforce it or administer it. It may take a public information campaign to make sure that everyone reasonably knows the 2nd Amendment is an individual right

I would think the benefits to this approach would be potentially quicker outcomes, pockets that are not nearly as deep as challenging the state directly, and my understanding is if we had a loss in this type of case it would not necessarily establish bad case law to the same extent one of our actual legal challenges would.

I cannot be the first one to have this thought so what am I missing?

Two points:

1) Where did you get the idea that Qualified Immunity does not apply to alleged civil rights violations?

2) You're correct that Qualified Immunity no longer applies once a right becomes clearly established. But you have to remember that there is a high bar. You also have to remember that there is considerable case law holding that LEO's may rely upon the validity of statutes. They are not required to independently determine the constitutionality of statutes they enforce (Refer to the U.S. Supreme Court's decision in Brown v Maryland). To date, none of California's significant laws affecting the Second Amendment have been found unconstitutional in a final decision. We're getting kinda close with Duncan and Miller, but both of those cases are still in play.

You can file a lawsuit, and pay all of the associated expenses, but until you can show that the right allegedly violated has been "clearly established", you're gonna lose.

[pacrat]

Two points:

1) Where did you get the idea that Qualified Immunity does not apply to alleged civil rights violations?

2) You're correct that Qualified Immunity no longer applies once a right becomes clearly established. But you have to remember that there is a high bar.
You also have to remember that there is considerable case law holding that LEO's may rely upon the validity of statutes. They are not required to independently determine the constitutionality of statutes they enforce (Refer to the U.S. Supreme Court's decision in Brown v Maryland). To date, none of California's significant laws affecting the Second Amendment have been found unconstitutional in a final decision. We're getting kinda close with Duncan and Miller, but both of those cases are still in play.

You can file a lawsuit, and pay all of the associated expenses, but until you can show that the right allegedly violated has been "clearly established", you're gonna lose.

Gee, I was always under the impression that this;

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things ...

Clearly Established the rights it says "shall not be violated".

https://reason.com/2020/05/19/qualified-immunity-supreme-court-jessop-theft-kelsay-police-brutality/

Last year, the U.S. Court of Appeals for the 9th Circuit Court decided that two police officers in Fresno, California, who allegedly stole more than $225,000 in assets while executing a search warrant, could not be sued over the incident. Though "the City Officers ought to have recognized that the alleged theft was morally wrong," the unanimous 9th Circuit panel said, the officers "did not have clear notice that it violated the Fourth Amendment."

In other words, the cops didn't have enough warning to know that stealing is an encroachment on one's constitutional rights. So it goes with qualified immunity, a legal doctrine that shields public officials from certain civil lawsuits as long as their misconduct has not been explicitly spelled out in pre-existing case law. The Supreme Court yesterday declined to hear that case, Jessop v. Fresno, along with two other cases pertaining to qualified immunity.

Jessop has all the baffling characteristics so often at the center of qualified immunity rulings. Amid the absence of a near-identical court precedent, we're supposed to believe that the officers in question could not have been aware that their conduct was constitutionally dubious.

The 9th CIRCUS ruling was nothing short of an egregious miscarriage of judicial power.

Which infers that cops are just too damn stupid to have ever read the Bill of Rights. Or to KNOW, that Ca PC actually already has "Clearly Established Laws" making theft and larceny illegal.

[AttnyCFrye]

Current qI doctrine presents a very high bar to civil suits against state officials.

For example cops stole $40000 from an evidence locker, and the officers received qualified immunity because no court had previously said it was unconstitutional to steal somebody’s money from the evidence locker.

The law has to be “clearly established”, and that currently means a court specifically said that exact behavior was unconstitutional.

You might be able to get past qi if a ccw issuing agency is abusing may-issue discretion, because there’ case law exactly on point. Maybe! But you probably couldn’t sue an agency for damages for refusing your specific model of pistol, since no court has said bans on certain models is unconstitutional.

So basically, suing for money damages is very very hard, and the right strategy is generally to sue to enjoin the unconstitutional behavior, and then collect legal fees.

That's not the bar to obtaining 1983 relief. QI will apply in recovering monetary damages. My 2A 1983 suit seeks declaratory and/or injunctive relief and that is available to the court, even as a precedent.

As you point out, once "clearly established", people will be able to start using 1983 for monetary damages for 2A violations in our 9thCir realm (imagine that! What!)

Right now, we need to blaze the legal trail and establish rulings with 1983 suits - and then some real teeth will sink in with 1983 suits and Sheriff's like Pat Withrow who violate people's rights blatantly.

[RANGER295]

Two points:

1) Where did you get the idea that Qualified Immunity does not apply to alleged civil rights violations?

2) You're correct that Qualified Immunity no longer applies once a right becomes clearly established. But you have to remember that there is a high bar. You also have to remember that there is considerable case law holding that LEO's may rely upon the validity of statutes. They are not required to independently determine the constitutionality of statutes they enforce (Refer to the U.S. Supreme Court's decision in Brown v Maryland). To date, none of California's significant laws affecting the Second Amendment have been found unconstitutional in a final decision. We're getting kinda close with Duncan and Miller, but both of those cases are still in play.

You can file a lawsuit, and pay all of the associated expenses, but until you can show that the right allegedly violated has been "clearly established", you're gonna lose.

1) Perhaps I am using incorrect terminology. Perhaps a constitutional right is a better phrase than a civil right. I do not have an extensive legal background especially in that area. My understanding was based on reading I have done online in forums (I know not the best source for concrete facts) regarding other non 2nd A rights and a couple of law firm websites.

2) I realize the bar is high but I would think we may be close to a point where this strategy may be effective at nullifying certain laws. Other groups are doing it quite successfully. There are many LEO's that are afraid to use force even when they are in the right because of potential liability based on all the high profile cases in recent years.

EDIT: For the record, I am not in a situation where I am looking to do this because I have personally had a violation against me such as a denial or mags confiscated or any other similar violation. I am just spitballing general potential strategies that I thought of.

[curtisfong]

Perhaps a constitutional right is a better phrase than a civil right

Don't let anyone convince you of this. This is exactly how we have lost as much ground as we have.

[pacrat]

Originally Posted by RANGER295 View Post
Perhaps a constitutional right is a better phrase than a civil right

^^^^ FIFY ^^^^ https://www.google.com/search?q=civi...hrome&ie=UTF-8

Civil rights are personal rights guaranteed and protected by the U.S. Constitution and federal laws enacted by Congress, such as the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Civil rights include protection from unlawful discrimination.

Don't let anyone convince you of this. This is exactly how we have lost as much ground as we have.

^^^^ THIS ^^^^ Liberals with agendas, are notorious for intentionally obsfucating the CORRECT definition of words. In order to subvert the narrative associated with those words/definitions.

[RANGER295]

^^^^ FIFY ^^^^ https://www.google.com/search?q=civi...hrome&ie=UTF-8

Civil rights are personal rights guaranteed and protected by the U.S. Constitution and federal laws enacted by Congress, such as the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Civil rights include protection from unlawful discrimination.

^^^^ THIS ^^^^ Liberals with agendas, are notorious for intentionally obsfucating the CORRECT definition of words. In order to subvert the narrative associated with those words/definitions.

Thank you. This was my understanding. I go back to my point that other groups are quite successfully using similar tactics. We are always on the defensive. If we are going to make any ground, we need to go on the offensive.

[JDoe]

Thank you. This was my understanding. I go back to my point that other groups are quite successfully using similar tactics. We are always on the defensive. If we are going to make any ground, we need to go on the offensive.

[RickD427]

1) Perhaps I am using incorrect terminology. Perhaps a constitutional right is a better phrase than a civil right. I do not have an extensive legal background especially in that area. My understanding was based on reading I have done online in forums (I know not the best source for concrete facts) regarding other non 2nd A rights and a couple of law firm websites.

2) I realize the bar is high but I would think we may be close to a point where this strategy may be effective at nullifying certain laws. Other groups are doing it quite successfully. There are many LEO's that are afraid to use force even when they are in the right because of potential liability based on all the high profile cases in recent years.

EDIT: For the record, I am not in a situation where I am looking to do this because I have personally had a violation against me such as a denial or mags confiscated or any other similar violation. I am just spitballing general potential strategies that I thought of.

Ranger,

Nearly all of the case law concerning Qualified Immunity involves matter of Civil Rights or Constitutional Rights. For the purposes of our discussion, and for the case law involved, we can treat the two as being synonymous.

Law enforcement officers need some amount of immunity in order to make balanced operational decisions. If they become too overly concerned about the prospect of being sued, then they're going to act optimally in field situations, just as you describe in your posting.

But you have to be careful with grants of immunity. Pretty much by definition, any grant of immunity is gonna deprive an aggrieved person of a remedy.

The U.S. Supreme Court gave a good treatment to this balancing point in Saucier v Katz. Saucier held that a right must be "Clearly Established" before a LEO could be civilly fanged for violating that right.

What Saucier did, was pretty much apply the concept of "ex post facto" to the civil liability of LEOs.

Let's use Pacrat's posting above as the example. He cites the case where Fresno LEOs seized $225K during a traffic stop. Some folks can believe that this is good police work, officers are expected to employ civil forfeiture statutes s a method of reducing crime. Some folks can believe that such seizures are unconstitutional (or a theft). The groovy thing here is that folks are free to hold their own beliefs until there is a court decision that resolves the issue. Under Saucier, the officers are immune, because there is no resolution that their view of the law was wrong.

But once the question is finally resolved, Saucier ends the Qualified Immunity.

Going back to your original posting, you're correct that Supreme Court has held that the Second Amendment is an individual right. But what you're missing is that there is no final case decision that any of California's firearms laws violates that right. We're getting close to such a final decision in Duncan, but we're not there yet.

[pacrat]

Let's use Pacrat's posting above as the example. He cites the case where Fresno LEOs seized $225K during a traffic stop. Some folks can believe that this is good police work, officers are expected to employ civil forfeiture statutes s a method of reducing crime. Some folks can believe that such seizures are unconstitutional (or a theft). The groovy thing here is that folks are free to hold their own beliefs until there is a court decision that resolves the issue. Under Saucier, the officers are immune, because there is no resolution that their view of the law was wrong.

For clarity ........... Jessop v Fresno had nothing to do with a traffic stop. Or civil asset forfeiture. It was Service of a Warrant on a premise. Regarding Gambling Machines. IIRC. And the cops again disconnected security cameras on the premises, then allegedly made rare gold coins disappear into their pockets. Because they weren't seized or forfeited. Because there was never a receipt, nor were they invoiced into evidence.

Similar circumstances as to the nice officers in Orange County who disconnected security cameras, then proceeded to steal and eat consumable cannabis products. On the one camera they missed. And got high on duty in the process.

Jessop was a much grander scale monetarily, and after the camera mishap in OC. The Fresno cops made sure they killed ALL THE CAMERAS.

Cops who are supposedly held to a higher standard. Who first thing disconnect cameras to hide from any source of transparency. Should IMHO be immediately fired.

The public in general, no longer trusts cops, because of the actions of cops.

ETA .... "Clearly Established" legal terminology, is just another of those "OBSFUCATORY DEFINITION" issues I mentioned earlier. CE has become nothing but a verbal "shuttlecock" in the legal game of badminton between Crooked Cops looking for a WAY OUT. And leftist courts trying their best to protect the States Enforcers from themselves.

Reminds me of the 9th Circuit Judge who publicly claimed that "EVEN A KINDERGARDNER KNOWS THAT STEALING IS WRONG".