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So I recently returned from a brief trip to California from Oregon. When I crossed the border, I lost my right to open carry and furthermore there is no way for an out of state resident to get a CCW (temporary or otherwise) so I was effectively disarmed and my rights violated. In fact, it happens to all people who visit California . "This provision makes it a crime for someone acting under color of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. It is not necessary that the offense be motivated by racial bias or by any other animus."----- So why cannot a Federal Grand Jury (in California or Elsewhere) indict the officials involved ? Maybe some attorney can answer that one.
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Well, the answer is illustrated in the notes and amendments. -
There are two reasons:
1) The elements of the offense - To pursue a criminal case, the prosecutor must show all elements of the offense charges, and must show them to a "beyond a reasonable doubt" standard. You're going to have considerable doubt with the "willfully" element. You may sincerely believe that the officials actions deprive you of a civil right, the prosecutor may sincerely believe it, but that don't matter. It's necessary to show that the defendant willfully violated the right. Such a defendant can easily raise doubt by arguing that the legislation advocated was for a proper purpose and not for the purpose of violating a right.
2) The above point don't really matter. In any case the official(s) are immune from prosecution. The principle of legislative immunity is well-established in both federal and state law. Please check out the 1998 Supreme Court decision in Bogan v Scott-Harris. Although that is a civil liability case, the holding is equally applicable to criminal cases (it's not easy to find a criminal case to cite due to the lack of such cases being filed).Last edited by RickD427; 06-08-2024, 3:32 PM.If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life.Comment
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Legislators may have immunity but Police do not have absolute immunity. Everyone is on notice by Supreme Court decisions that the right to keep and bear arms is an individual right. Personally, I think anyone who is arrested for exercising a constitutional right would have the right to sue and that official should be held criminally liable. Each and every police officer has sworn to uphold the Constitution of the United States, Clearly in California they do not.Comment
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California has converted one of the rights guaranteed by the Bill of Rights into a crime for US Citizens who are not residents of California. That don't look right to me. Does that not make the California government tyrannical and criminal?
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Ted,
Please review the U.S. Supreme Court's 1827 decision in Brown v Maryland. It sends your argument into the toilet. That decision creates a presumption that laws are constitutional until they are found otherwise. LEO's are not expected to be constitutional scholars.
You are correct that each LEO swears an oath to uphold the constitution, but that oath also includes a duty to enforce the law.
If an LEO enforces a statute that you believe to be offensive to the constitution, the officer has committed no crime for which they may be prosecuted. While you are correct that LEOs do not possess absolute immunity as do legislators and prosecutors, they do hold qualified immunity. So long as the law they are enforcing is presumptively constitutional under Brown, they remain protected by qualified immunity.
I'll make a pre-emptive comment regarding the anticipated path of this discussion, and to the inevitable demonstration of "Godwin's Law." It goes something like this - If the law required a LEO to seek out and assassinate everyone on a list given them by a superior - would you do it? My answer is "No", because I would not be a LEO under such a regime. But this same hypothetical doesn't really illustrate the duties of the LEO - it implicates the government that would pass such a law.If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life.Comment
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The crucial argument that makes the whole discussion be pointless is the following:
The OP started out by saying that his constitutional rights are being infringed. That may be his opinion, but legally speaking, it is a false statement. California has laws that govern the carrying of guns. Those laws are valid, and constitutional. This remains true until such time that a court decides otherwise. Given that this hasn't happened yet, the OPs rights are not being unconstitutionally infringed. Therefore, it is logically impossible to indict the people who designed these laws or voted for them, or the officers who enforce them, for doing something unconstitutional. End of discussion.
If the OP disagrees with these laws, they are free to go to a suitable court (could be a state or federal court) and start a case. Warning: there are already lots of these cases around, and most have already lost, and some are currently in progress and haven't won yet.
And as RickD427 explained earlier: Even if those laws are eventually found to be invalid (for example for being unconstitutional), legislators have very wide ranging immunity (and that is considered a good thing), and law enforcement has similar immunity as long as they stay within the law, as currently in force.
In the meantime, the OP's opinions and $5 will get me a coffee at Starbucks. My suggestion would be that instead of posting legally wrong drivel here, the OP should vote for politicians that share his opinions.meowComment
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According to your theory, if California passes a law that a certain color people must ride in the back of the bus, then law enforcement should enforce that until a court finds it illegal? No, I think not. The Supreme Court has already spoken on that issue. A law enforcement officer would be conscience bound to uphold the Constitution and not enforce the law, or perhaps you don't agree with that? If so, then their oath to support the Constitution literally means nothing. Likewise, the court has spoken on the 2nd amendment and that is fundamental right of every law abiding citizen. Police know there is a second amendment right, yet they enforce unconstitutional California laws anyway. All in violation of their oath to support the Constitution. It is also a violation of , deprivation of rights under color of law.Comment
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The OP appears to be an Oregonian, so he can't vote here.
Oregon is broken too because it does not recognize CA CC permits.Benefactor Life Member, National Rifle Association
Life Member, California Rifle and Pistol AssociationComment
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If the law takes effect, then yes: law enforcements are legally required to enforce it (RickD427 might be able to find more details). But such a law would never take effect: the courts would very quickly accept a challenge to it, and given how blatantly unconstitutional it is, would enjoin it. This happens with some gun laws too, recent examples abound.
So your example is theoretical and not realistic. Can we talk about real issues instead, please?
False. A sworn officer (note the word sworn in there) upholds the law, the constitution of the state, and the constitution of the US. Not his conscience, nor his opinions. If the laws and constitutions disagree with each other, they will likely defer to the courts, whose purpose is after all to resolve such contradictions. Any officer who deliberately breaks the law because it disagrees with his opinion or conscience should not hold that job. RickD427 already explained above the resigning is one good (perhaps the best) choice in that situation.A law enforcement officer would be conscience bound to uphold the Constitution and not enforce the law, ...
If that was true in the way you mean it, much of California law would not exist. Yet it objectively does. Ergo your statement must be false: a mis-interpretation of what the court said.Likewise, the court has spoken on the 2nd amendment and that is fundamental right of every law abiding citizen.
By the way, in Bruen the court said: Yes, it is fine for NYS to have a system for issuing CCW permits, as long as that system actually issues such permits, and doesn't require a "heightened need" for a permit. Your reading of Bruen is simply a fantasy.
meowComment
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According to your theory, if California passes a law that a certain color people must ride in the back of the bus, then law enforcement should enforce that until a court finds it illegal? No, I think not. The Supreme Court has already spoken on that issue. A law enforcement officer would be conscience bound to uphold the Constitution and not enforce the law, or perhaps you don't agree with that? If so, then their oath to support the Constitution literally means nothing. Likewise, the court has spoken on the 2nd amendment and that is fundamental right of every law abiding citizen. Police know there is a second amendment right, yet they enforce unconstitutional California laws anyway. All in violation of their oath to support the Constitution. It is also a violation of , deprivation of rights under color of law.Comment
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