While we're at it, let's have the Supreme Court clarify that aside from identifying yourself, you have the right to remain silent during a Terry stop.
It seems pretty obvious that if you have the right to not answer officer's questions in consensual encounters (where you're not suspected of a crime) and arrests (where you're charged with a crime), you should also have the right to remain silent during an investigative detention.
But just because it's obvious doesn't mean it's legally protected.
It turns out that the Supreme Court has declined opportunities to clearly establish the right to remain silent during a Terry stop.
Which means that in some cases, a person can be charged with obstruction if they refuse to answer an officer's questions during a Terry stop. Worse yet, if a court later finds that the officer has violated a person's constitutional rights by arresting them for refusing to answer questions, qualified immunity prevents the victim from being compensated for the injustice, because the right to remain silent during a Terry stop is not considered "clearly established."
Here's a link to a piece titled "Obvious But Not Clear: The Right to Refuse to Cooperate with the Police During a Terry Stop." It was published in the American University Law Review in 2020. Written by a University of Denver law professor and an attorney who graduated from that university, it reviews all of the relevant case law and urges the Supreme Court, other courts, and state legislatures to "clearly define" the right, which would remove qualified-immunity protections for officers who violate that right.
The Supreme Court should just not be allowed to select the cases they review. If lower courts and legal experts think there's a genuine circuit split or pressing legal issue that needs to be resolved, they should be able to force the Supreme Court to issue an opinion.
The commenter above doesn't understand how courts work.
When a court declines to hear an appeal, they are simply saying that the below court handled the case appropriately. By choosing not to hear it, they ARE ruling on it by maintaining the lower courts decision.
To say that SCOTUS "refuses" to hear cases on Terry cases, they are saying that the lower courts were correct.
It's not like they are dodging their responsibilities when declining to hear an appeal. That's how the system works - otherwise literally every losing party would appeal every single case to the supreme court.
You have absolutely no clue what you're talking about. Even if we're playing by the book, the Supreme Court can choose not to grant cert because they believe a compelling circuit split hasn't yet emerged, stare decisis, they don't believe the controversy is ripe, they think it's a matter for someone else like the legislature, they don't have space on the docket, etc. Not granting cert is absolutely not an endorsement of legal interpretation by a lower court.
Beyond that, idea that justices wouldn't, even subconsciously, use the power to choose their own docket to favor their own policy preferences is just naive.
> When a court declines to hear an appeal, they are simply saying that the below court handled the case appropriately.
No, they emphatically are not.
When a courts with discretionary appellate jurisdiction (in the US federal judiciary that's mostly the Supreme Court) declines an appeal, it is not the same as saying the court below is right, its saying “we have limited time and this case and the question it presents isn't important enough for us to spend time reviewing in detail, either procedurally or on the merits”.
There are fairly well-known factors that influence decisions to take cases by the Supreme Court (the issue having a thin record at the apellate level being a negative factor, a conflict between the circuits on a question being a positive one, among many others) that have nothing to do with whether the case is right or wrong, but have more to do with whether it raises issues that have been well vetted and for which there is some urgency (as arises from inconsistent application of the law) to resolve.
> To say that SCOTUS "refuses" to hear cases on Terry cases, they are saying that the lower courts were correct.
No, they aren't.
> It's not like they are dodging their responsibilities when declining to hear an appeal.
In general, no, because making those decisions on hearing cases is their responsibility. The particular decisions can be instances of non-, mis-, or mal-feasance in those duties, though.
In the status quo it's not necessarily that the judge in a lower court recommend a being escalated to the Supreme Court or any higher Court, it's the defense that appeals and their appeal can be denied
Any decision in a civil case that has the weight of a final judgment can be appealed by the affected party. The cause of action in all of these cases alleging a violation of civil rights (like the right to silence during a terry stop) is 42 U.S.C. § 1983: "Civil action for deprivation of rights". The plaintiff would be the one filing the appeal, because lower courts have largely dismissed their claims; dismissal with prejudice is considered a final judgment.
The point about the status quo is that when there's uncertainty about what the actual law is, law enforcement picks a side and goes with it, and everyone else has to live in that reality. When there's genuine ambiguity as to how the law is actually supposed to apply, the Supreme Court shouldn't be able to just deny cert because they like what the government picked and are therefore beneficiaries of the legal uncertainty.
The situation in which lower courts would ideally try and kick something like this up to the supreme court is exactly when they start saying things like this in their opinions: "We hold that Alexander’s claim on this point cannot overcome the officers’ qualified immunity, because “it was not clearly established that an individual has a First Amendment right to refuse to answer an officer’s questions during a Terry stop.” Surprisingly few courts have ruled on this precise issue; the parties point to no cases from this circuit directly on point. The sparse case law that does exist, however, indicates no consensus that a defendant has a First Amendment right not to answer an officer’s questions during a stop like the one at issue here."
"you should also have the right to remain silent during an investigative detention."
You do. You have to expressly state that you are invoking your 5th ammendment right if they haven't charged you yet.
The thing that allows it to happen anyways is qualified immunity. The court is saying you have that right, but they won't hold the cop accountable for violating it because because it's not clear/official enough.
When I was younger (Actually I was pulled over about a year ago for no reason.). I was pulled over for basically an old car, and hair below my ears. I didn't want to say anything, but knew if didn't kiss their badge, I might get pricy ticket.
The one time I didn't answer their rediculious questions, like, "Where you are going. What are you buying at Safeway. It seems strange you are buying dinner at 10 pm". These were the actual questions.
She walked around my car looking for something to ticket, and then said I was speeding. A $350 ticket.
Yea, I tried to fight it, but she actually showed up in court, and the judge sided with the Police Officer.
(In California their was a bill that would essentially legalize jaywalking. It was drafted because cops were using jaywalking violations to harass, and intimidate citizens. Basically, I have nothing on you, but I could site you for jaywalking.
Governor Neusome vetoed the bill. I get where he was comming from, but still disappointed.
I don't know the solution other than every cop, including undercover cops, should have a camera on every minute of their shift. Only using a bathroom could the cop flip the cover on the camera.
Those tapes should be allowed to be retrieved in an easy fashion by anyone. If cops resist, their are many people in line for that job.)
The start of a solution is to remove the USSC-created fiction of government immunity. A few money judgments against individuals and they will all shape up.
Note that a private person doesn't have their civil lawsuit attorney file a motion to dismiss because of immunity. Giving government bad actors immunity causes behaviors that are harmful. Black Lives Matter would do well to look at this, if they are interested in the causes of government misconduct.
No, they will all just quit. There is no job on Earth that you could fill, from teacher to plumber to police officer, that literally anyone would do if they were held personally responsible for doing their job wrong on the job.
It's insane that people want to strip this worker protection away from workers.
There has to be some kind of balance against the overwhelming power law enforcement wields over citizens. Maybe totally removing qualified immunity isn't the answer. But something needs to change to curtail abuse. I have no idea what that might be - even stepping up internal enforcement of policy and proper procedure might have the unintended consequence of law enforcement becoming reluctant to do their jobs.
> There is no job on Earth that you could fill, from teacher to plumber to police officer, that literally anyone would do if they were held personally responsible for doing their job wrong on the job.
Most private jobs have no immunity from liability for workers for torts done on the job; in most the employer is also liable and often a more attractive litigation target—more money, more motivation to settle, more likely to pay a judgement it settlement. But the worker isn't immune, and it's regularly sued when the employer is.
And yet, people work all kinds of jobs with neither absolute nor qualified immunity.
A DoD Information Assurance Vulnerability Management professional is required to sign a document that says they will be personally responsible if a breach occurs on their watch due to error on their part. An IAVM protects intellectual property. A cop protects lives. I consider lives more important than intellectual property - so why shouldn't a cop have to sign the same type of document?
There is a big difference between an honest mistake and willful actions that sabotage the job. For the latter normal employees are being held personally responsible. There is no reason prosecutors / police / similar should be the exception. They've committed criminal acts. Let the fuckers suffer the same fate they've imposed on their victims at taxpayers expense.
> There is a big difference between an honest mistake and willful actions that sabotage the job
Willful sabotage is not protected by QI.
> They've committed criminal acts.
Criminal liability isn't affected by QI (it is affected by absolute immunity, but that only applies to things that are mandatory, not discretionary, parts of the job.)
So I take it then that willfully ignoring a law and withholding an exculpatory evidence is not a crime then. Nice. Basically license to screw one's life without any consequences.
This is a very American system solution and it won’t work. People go on and on about getting rid qualified immunity but it’s only a partial immunity and cases are still fairly frequently lost. Look at what happens in those cases—-the city pays a lot of money. The cops suffer no consequences at all. They pay nothing. They even often get overtime for participating in the trial.
Lawsuits are a failed means of regulation when it comes to state actors (they are a failure in regulating other things as well but that’s a different conversation). It’s time we admit that instead of insisting we just need this one more tweak.
Let’s put in place real political accountability and then empower politicians to make genuine reforms—-even over the objections of civil service unions.
If the police unions don’t like your laws they don’t enforce them. If they really don’t like you, they don’t show up at your house when there’s an intruder. If they really really don’t like you, they are the intruder.
Doesn’t the first one make sense though? Isn’t the refusal to enforce laws the check the executive branch, at all levels of government, has on the legislature?
I don't think so. They are supposed to set standards or make tweaks for how the law should be enforced. They aren't supposed to outright ignore it.
Just like judges are not supposed to legislate from the bench.
I think the misapplication and unequal enforcement of the law undermines the entire system. Nobody will think it's fair that they get prosecuted and some other person doesn't. Justice for all, my ass.
How about personal accountability of the officers involved? Person X did something illegal and ended up in jail. Officer Y did something illegal, and the taxpayers paid the wrongfully accused.
That’s the ultimate idea but since we have elected government as intermediaries between us and managing the police we need to fix the one in order to fix the other.
If a cop kills someone and the other cops drag their feet on the investigation and then the prosecutors sandbag the case in front of the grand jury, what can I random citizen do?
We need politicians that can and will hold these departments accountable for their performance, including their performance when investigating crimes by cops.
In my view if a prosecutor, judge or cop breaks intentionally or knowingly break the rules, it should be treated as a very serious crime and they should be punished harshly. These people are trusted by society with enormous power over people's lives and their behavior should have the highest integrity. Once people have doubts about the legal system, a civilized society can't really work properly.
A vast majority of the workers in the legal system are doing their job with honesty. It should also be in their interest to get rid of corrupt people.
"A vast majority of the workers in the legal system are doing their job with honesty. It should also be in their interest to get rid of corrupt people."
On thing this misses is that many people violating rights might just be incompetent. Then the corrupt ones use incompetence as a defense.
Be careful what you ask for though. Cops are given a lot of discretion about whether to make an arrest, issue a citation, or a warning, or none of the above.
If you start demanding that they never "break the rules" it could have outcomes you didn't want.
We've already got selective enforcement. Compare how the protestors who stormed the capital during the Kavanaugh hearings got treated compared to those on January 6. look how anti lockdown protestors were treated compared to BLM protestors. If you want a world with selective enforcement you're living in it.
What kind of comment is this? You seem to argue that it's OK to "break the rules" sometimes, and your reasoning for this is something vague about unwanted outcomes? I don't see any substance to this comment. If you have an argument you need to make it more explicit.
I think he's implying that a citizen might be the beneficiary of police not strictly enforcing rules. For example, being issued a warning rather than a citation.
I personally don't find that to be an especially compelling argument to avoid the use of body cameras.
If one frequently finds themselves subject to lax enforcement of laws to their never that points to a systemic issue in the law or it's enforcement
I’m a pretty pro-criminal justice reform guy, but most folks in that camp really don’t understand how very guilty most people in prison are. From first hand experience, the system is already inundated with meritless litigation, appeals, etc. People in person don’t exactly have a lot of better things to do. Innocence Project and similar organizations have to screen hundreds of cases to find the one or two meritorious ones. Ending prosecutorial immunity would mean 99 completely frivolous lawsuits for every one worth considering.
People who are pro criminal justice reform understand people are guilty. But they're trying to solve the actual systemic issues that lead to crime, not just say crime doesn't happen.
Policing doesn’t cause crime and any more than umbrellas cause rain. Systemic issues exist but those issues are more about circumstances that produce criminals (breakdown of family structures, etc.) not policing.
Yes absolutely—people buy umbrellas because of rain, and voters employ police because of crime. It’s a logical error to infer that the presence of umbrellas causes rain, or that the presence of police causes crime.
In this metaphor, rain that doesn't happen to land on an umbrella just isn't observed. The presence of police increases crime statistics, because some marginally illegal activity that happens all the time and is mostly unenforced would be acted on.
have to screen hundreds of cases to find the one or two meritorious ones
And even then, legal merit, long after conviction, brought forward by a team of highly motivated activists, against an indifferent (or often enough even sympathetic) legal system does not equate innocence. Peculiarities of the American legal system and political pressures exacerbate this.
If you find DNA evidence or a video recording to exonerate you, that's great. But if you're in prison because a cop planted drugs on you, there is no DNA evidence. There may not be a video recording of the events. How can you prove your innocence? Sometimes you can't, even when you are.
> Innocence Project and similar organizations have to screen hundreds of cases to find the one or two meritorious ones. Ending prosecutorial immunity would mean 99 completely frivolous lawsuits for every one worth considering.
This is interesting phrasing. It was an often-repeated statement during American history that, "it's better 100 guilty people should escape than that one innocent person should suffer."
Prosecutorial immunity removes State consequences for violating citizen rights. Lawsuits against the officers/prosecutors/states are some of the lowest consequences we could impose; as another commenter has mentioned often they just result in the State paying out money and little to no individual consequences for bad actors. But even that is at least some discouragement against violating Constitutional rights.
John Adams commented on this by saying, "It is of more importance to the community that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished....when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, 'it is immaterial to me whether I behave well or ill, for virtue itself is no security.' And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever."
He argued that without strong protections from the State for people's rights, that people would stop depending on or trusting the State to secure their rights, and that society would start to slip into extralegal chaos. Citizens would stop looking to the law as a protective force, and instead consider it to be something to avoid and subvert since "virtue itself is no security."
This is a particularly prescient idea today. We tell people to trust the legal system to protect their rights. But prosecutorial immunity undermines that message, because people see that their rights can be violated by the State itself and they will have no legal recourse to fix the situation. When they see that, we run the risk of making them disregard the entire legal system. Why cooperate with the State at all in any capacity; why trust the process when the process doesn't hold itself accountable to its own standards?
We live in a system with double standards, where citizens can be prosecuted, penalized, and even jailed for lying to the police or the FBI under extremely broad criteria, but where prosecutors and the State suffer no personal penalty for withholding evidence from the defense during a trial. How much damage does this do to our institutions? How can we possibly hope to convince ordinary people that an institution with those standards is trustworthy?
> This is a particularly prescient idea today. We tell people to trust the legal system to protect their rights.
I was prosecuted for 'trespassing' and 'misdemeanor assault', after my failed attempt to use a granted court order to free my friend from illegal confinement in a hospital emergency room (ref: my comment history).
I think the prosecutor realized while I was testifying that I was not like the other people he prosecuted, and attempted to elicit truth with his cross examination.
I was convicted by the city court judge, and sentenced to 2 years of unsupervised probation. My attorney said the problem was my accuser was a retired police officer who works for the state's largest non-Walmart private employer.
Still furious at getting steamrolled. Aside from the first judge, who granted habeas corpus on my pro se petition, I've gotten screwed by most the other judges who've considered my subsequent petitions over the years.
I think the Justices in Washington DC will have to do their job on my next petition to their court. Previously I asked to file under seal, which gave the court of appeals and the justices a convenient way to avoid having to deal with my petitions.
Literally, 2-10% of the incarcerated are fully innocent.
If those 99 are truly frivolous, than a petition to dismiss to or request for summary judgement should have them thrown out based on a lack of evidence/standing.
Because leaving things as they are is clearly worse than the scenario you describe, especially since those hypotheyical 99 frivolous lawsuits could be dismissed with very little effort.
Police do not have this immunity and yet somehow they can do their job without being paralyzed by frivolous lawsuits.
Prosecutorial immunity out, but not prosecutorial discretion?
Why should a prosecutor be able to effectively rule some behaviors "not crimes" by declining to prosecute them, when the legislature has decided they are crimes?
Unfortunately, we have decades of laws written overly broad that make huge swaths of behavior into crimes, with the people passing them saying "yeah, but we won't use them that way". At least to me, this is abhorrent and such laws should never be passed, but here we are. If all laws were enforced every time they applied, the vast majority of the population would be in jail.
There is a book called Three Felonies A Day with the same premise. I have not personally read it so I cannot vouch for its accuracy. That being said, this is what the description for the book says:
> The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to “white collar criminals,” state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.
This is a common misconception with technical people. Laws are not computer code. What they mean is not just what they literally say, but what the words means in legal context, and considering precident, and the intent of the legislation.
> What they mean is not just what they literally say, but what the words means in legal context, and considering precident, and the intent of the legislation.
You say that, but... no. Laws are used all the time in ways that clearly weren't the intent of those laws and make no sense. Many prosecutors and cops care about convictions, not "making sense" or "doing the right thing". For example, this one...
> A 17-year-old boy could go to prison for 10 years after being charged as an adult for 'sexting' his girlfriend with explicit photos of himself.
It gets even worse when you consider prosecutors effectively blackmailing people into accepting plea deals (sometimes for things they didn't even do) by laying out 20 "other" charges they plan on leveling at them; charges that clearly were not the "intent of the legislation", but technically can be applied.
Without denying any of the misconduct detailed below:
A prosecutor deciding that he or she will NOT charge someone (like Jussie Smollett or the Portland rioters) is equally bad. If someone clearly did something, they should not skate. That also breeds contempt for the law.
I have witnessed prosecutorial misconduct. According to the state Bar, even though the acts alleged would violate the professional code of ethics, they will only investigate if the court has formally declared that prosecutorial misconduct occurred.
The fact is, the people in power will continue to say that those involved in running the system should have immunity. Why? Because according to them (multiple court rulings) the system itself is more important than the people who it governs. Complaints against the judiciary are so secret, that even if the file contain exculpatory evidence, they will refuse to turn it over on the basis that the secrecy is necessary to protect the integrity of the system and uphold the public trust.
Let that sink in...
The only reason things would need to be secret is if the system was covering up misdeeds and not punishing its members appropriately. More people would trust the system if there was transparency and appropriate discipline/oversight.
It's really no wonder that 2-10% of the incarcerated population is innocent.
"Because according to them (multiple court rulings) the system itself is more important than the people who it governs"
I remember reading about a guy who got convicted although he was innocent. In one appeal the appeals court basically said "We know you are innocent but the process was followed correctly so we won't open the case again".
"It's really no wonder that 2-10% of the incarcerated population is innocent."
As far a I know most of these people got bullied by prosecutors into a plea bargain: "We all know you didn't do it but you have the choice to accept 3 years prison or go to court and risk getting 30 years." Tough choice especially if you can't afford lawyers.
It's an interesting proposal, but we have to find some way of fitting intent into the picture, or good prosecutors will be paralyzed. Since this is clearly US-focused, how do other countries do it?
In other countries it's simple; Prosecutors are treated exactly the same as any other citizen. Breaking the law is illegal for them and their institutions.
If 'good prosecutors' will be paralyzed by no longer being permitted to plant evidence, fake testimonies and commit other deplorable acts, them maybe they are not good prosecutors?
Kamala Harris got her political cachet by fixing California's voting system. It is, today, quite difficult for a crooked elections official to produce a fraudulent election result in California. That was not the case before Harris, when California was all-in on wholly electronic voting, with deeply unreliable voting machines.
Unfortunately, Alabama and Louisiana bought the surplus machines. We may hope they have since been retired.
The voters voted for her. We should ask the majority of the voters I suppose. These were known about her even when she got voted in as California senator. Clearly majority of Californians agree with innocents (mainly Blacks) being jailed.
I don't really think many people vote "for" the VP. She was along for the ride on the Biden presidential ticket. It would be interesting to have the VP elected separately from the president. You could even end up like some states where the Governor and Lt. Governor are from different parties.
The media is part of that evil racket. Just see how they lionized Colin Powell, a man deeply involved in genocides and massacres and war crimes. His career got its push from him helping cover up the My Lai massacre and then advocating every Vietnamese boy be shot as they could turn into a Viet Cong soldier.
Seems like we've normalized celebrating terrible people of all historically marginalized backgrounds coming to power. A powerful elite of rich sociopaths, but hey, they're multiracial and there's even some WOC! Progress!
A modest proposal: if you're going to do it, and have the political wherewithal to push it through, do it in _your own_ county/city, then wait for 5 years or so to see the effects. I.e. if Hollywood wants to "defund the police", defund Beverly Hills PD first, see how well that works.
Sick and tired of people proposing harebrained policies that affect everyone else but them.
That's the difference between people who read, and those who don't. On the flip side, I don't know how to pronounce some of the words that I know how to spell, so when I read I sub-vocalize them incorrectly. There's no need to separately learn pronunciation in my native Russian - it's phonetic, with very few, minor deviations. Nor is there a need to learn spelling - it is governed by very few simple rules.
1. Hollywood != Beverly Hills
2. IANAL but I believe this would have to be done on a state or federal level not a local level.
3. Why do you think the change is "harebrained"?
Why do you think that's not what we're trying to do? I am politically active against my local police because their violent policies affect /me/ and people I care about.
It seems pretty obvious that if you have the right to not answer officer's questions in consensual encounters (where you're not suspected of a crime) and arrests (where you're charged with a crime), you should also have the right to remain silent during an investigative detention.
But just because it's obvious doesn't mean it's legally protected.
It turns out that the Supreme Court has declined opportunities to clearly establish the right to remain silent during a Terry stop.
Which means that in some cases, a person can be charged with obstruction if they refuse to answer an officer's questions during a Terry stop. Worse yet, if a court later finds that the officer has violated a person's constitutional rights by arresting them for refusing to answer questions, qualified immunity prevents the victim from being compensated for the injustice, because the right to remain silent during a Terry stop is not considered "clearly established."
Here's a link to a piece titled "Obvious But Not Clear: The Right to Refuse to Cooperate with the Police During a Terry Stop." It was published in the American University Law Review in 2020. Written by a University of Denver law professor and an attorney who graduated from that university, it reviews all of the relevant case law and urges the Supreme Court, other courts, and state legislatures to "clearly define" the right, which would remove qualified-immunity protections for officers who violate that right.
https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?...