> The police officers, Kevin Riley and Thomas Connor, say they had probable cause to arrest Novak because they genuinely believed his conduct was disrupting their operations
That's is? That's all it takes? You don't have to provide any evidence for said belief corroborating your "feelings" of genuineness? All you have to do is "believe" something was going on, and you've got immunity from prosecution?
"Why did you confiscate this man's money?"
"Your honour, I genuinely believed it was fake money."
"Was it fake?"
"No, but I genuinely believed it."
"Ah ok then, you may keep the moneyh. Dismissed".
Also, it is not legitimate to have this recursive reason for arrest: Interfering with the activities of the arresting entity. This almost allows to arrest people for interfering with their own arrest.
About confiscation of money - reality is stranger than fiction in the US in this respect, see:
This case was the one with an Amicus Curiae brief from "The Onion"[0]
> The Onion files this brief to protect its continued ability to create fiction that may ultimately merge into reality. As the globe’s premier parodists, The Onion’s writers also have a self-serving interest in preventing political authorities from imprisoning humorists. This brief is submitted in the interest of at least mitigating their future punishment.
> The Onion is the world’s leading news publication,
offering highly acclaimed, universally revered coverage of breaking national, international, and local news
events. Rising from its humble beginnings as a print
newspaper in 1756, The Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most
powerful and influential organization in human history.
Could just be that QI is too big an issue to pick up over a case as marginal as this one. Nobody is entitled to a Supreme Court case.
Everything else aside, I don't know why anyone would be in a hurry to get a SCOTUS QI case. You'll get Sotomayor, Kagan, and Jackson, and if you're incredibly lucky and the stars align you might get Gorsuch (but probably not). Every other vote is a foregone conclusion. Why would you want this particular court setting QI precedent?
For the foreseeable future, the path to beating back QI is going to be legislative, and policy shifts about policing start local. Go make friends with your city council or trustees board. You might be surprised what you can get done.
Ah, that's a good callout. Thanks. He's twice recently dinged QI, the first time in a policing case. I still think you wouldn't want this court hearing a QI case, but there's two potential crossover votes, not one.
I think you can count to 5. The problem isn’t ideological, it’s pragmatic. The signal to noise ratio in lawsuits against the police is extremely low. You’d be opening the floodgates to frivolous litigation. Just look at the shit that gets filed against judges—and they have absolute immunity. Gorsuch and especially Thomas are the most likely of anyone on the Court to not care about the practical ramifications.
I think it’s actually a better court for challenging QI than it’s been in decades. Replacing Breyer with KBJ and Scalia with Gorsuch moved things closer. Thomas has also come into his own. Kennedy to Kavanaugh was probably a wash. RGB to ACB maybe a small step back.
There were posters all over Federal Prison that filing false cases/liens against Judges would result in additional charges and or sentence extension. It came off more as 'don't challenge your case in any way' and definitely discouraged a lot of dudes that had very valid reasons to file. Access to the courts by citizens should be the court's priority, not discouraging it because it's 'inconvenient' for government agents.
> The signal to noise ratio in lawsuits against the police is extremely low. You’d be opening the floodgates to frivolous litigation.
What are the practical implications then if it's indeed primarily signal to noise? Just a bunch of lawyers (and their boosters) making political plays that go nowhere but burden the system? And a bunch of police who get caught in the crosshairs while union lawyers take the brunt of the impact, while police spend years on paid leave and amplify police hiring shortages?
Every lawsuit filed takes up judicial resources. QI is an effective way to dump a lot of frivolous lawsuits, it just happens to have a really high false positive rate for “frivolous” (and happens to be unconstitutional IMO).
There aren’t different courts for lawsuits against the police. It’s not just police sitting on paid leave but innocent people languishing in jail while their case drags on and actual disputes that aren’t frivolous dragging out rather than being resolved so that the parties can move on.
From a judge's perspective, the impact on the legal system must surely be prominent, if only subconsciously. "Just a bunch of lawyers" is their entire social class.
Their job is upholding the law, and access to the courts is one of the highest and most important constitutional rights to ensure trust in the system. One of the HIGHEST laws/rules of their job is ENSURING citizens have access to the courts so they are not doing their job if they are in anyway discouraging such access, especially when their justification is 'inconvenience'. The lawmakers are the ones that create the mechanisms for access to the courts, it is THEIR job to ensure the laws/system are workable when people choose to ACCESS THEIR RIGHTS. That is NOT the police's job, again, that is the law makers job. Qualified immunity is unconstitutional and protections/ensuring the system works is required to be done by lawmakers under the constitution, not illegally giving DELEGATED AUTHORITY from the judicial branch to the executive.
"Upholding the law" also includes prosecuting criminals for violating laws. A flood of frivolous litigation against police that overloads the courts would impair that objective. You can't project your own value judgments about which of those priorities is the "highest and most important."
A legislative fix would be better than a judicial one. While unlikely, a large part of the need for QI would go away if the English Rule was adopted. It is far to easy to sue in the US over frivolous matters, and the US is the only OECD country that does not have the English Rule, which provides a pragmatic limit on those shenanigans.
> a large part of the need for QI would go away if the English Rule was adopted.
The English Rule makes litigation inherently higher risk for less wealthy litigants while barely limiting more wealthy ones, and further tips the balance of the legal system to the wealthy. And it doesn’t address the need for QI.
OTOH, QI would be fairly comprehensively solved if the immunity was treated as an indemnity by the employing government rather than a simple immunity, such that, should QI be established to apply, instead of the case being dismissed before reaching the merits, it became a case where any damages would be the responsibility of the employing government agency rather than the employer, bypassing any otherwise-applicable governmental immunities. (The logic of QI is that it is unjust to hold a government employee responsible in their personal capacity for a violation of the law done in their capacity as a government agent, within a zone in which they had discretion in the job, and where there was insufficient basis for them to know that the act was a violation; there is, I think, a very good argument that this is the case but that the result should not be that all remedy is lost.)
The problem is when governmental immunities stack with personal immunity under QI and with insufficient prosecution of crimes by public officials to denial all remedy, not with QI alone. In fact, I would argue that QI is, alone, the least important of the three roots of the problem, just that it prevents the last available end-run around the more important ones.
I believe that Kagan is also mostly a QI supporter, given her generally deferential disposition towards the executive branch and its agencies. So your read on the bench’s leanings here seems to be almost entirely wrong. You’re unlikely to see a more friendly bench for challenging QI for years: Thomas, Gorsuch, Jackson, and Sotomayor seem to be votes against QI in its current form while Alito, Kagan, and Kavanaugh are votes for keeping QI.
> Could just be that QI is too big an issue to pick up over a case as marginal as this one.
A citizen suing police officers for a custodial arrest without due cause in retaliation for exercising Constitutionally-protected liberty is not a minor QI case, it is a major one; a minor QI case is something like the case that actually gave us QI, a prospective government contractor suing government officials in their personal capacity for abuse of discretion in dealing with the contract resulting in someone else winning the contract. (Pretty much all the QI cases that make the news these days are major cases, that is, ones involving law enforcement agents (often with the support, tacit or explicit, of their agency) using force, arrest, etc. against civilians, without legally sufficient cause, and often on the basis of race, gender identity, religion, or protected speech.
The allegations here are, on their face (though I’m not sure exactly what cause of action they were litigated under), a civil violation of the Ku Klux Klan Act as well as a criminal violation of Civil Rights Act of 1968. Honestly, I think the entire problem with QI would go away if it was clearly stated that charges under the “color of law” provision of the Ku Klux Klan Act, 42 USC Sec. 1983, were categorically outside of the scope of QI, and a sizable share of civil actions where that is an issue would themselves go away if the federal government enforced the criminal provisions of the Civil Rights Act of 1968, 18 USC Sec. 241, more thoroughly.)
This incident is from 2016 though. But you’re right, it would be a lost cause to challenge QI in the current climate. Thing is that the Supreme court ballance was tilted quite badly for the foreseeable future
Yeah, I just mean: it's a pretty marginal case. He spent 4 days in prison --- a travesty, to be sure --- and was then acquitted of any wrongdoing. It's not that there isn't a wrong to right here, but righting wrongs isn't so much the day-to-day purpose of SCOTUS so much as righting the law, and if they're going to pick up the QI hot potato, maybe they'd choose to do it in a case where the stakes are higher than some guy's Facebook parody site.
All the rest of the surrounding context of the case will matter too: precisely the laws he was accused of violating, and how sane those laws are, &c. Maybe, regardless of how they feel about QI, the fact pattern here is just messy; they're not going to put a case that boils entirely down to the legality of Facebook parodies on their docket.
They can rule narrowly when they want to. This guy has been to SCOTUS twice over what others may consider to be minor matters. https://en.wikipedia.org/wiki/Fane_Lozman
> At oral arguments, justices expressed both sympathy for Lozman and hesitance to issue a ruling that might hinder law enforcement. Their eventual ruling in Lozman's favor was very narrow, holding that the Mt. Healthy test was appropriate "on facts like these",[1] based on the alleged "official municipal policy"[2] of retaliation and the importance of the right to petition.
If the guy in the case at hand had spent $875 thousand in suing the Ohio police I wonder if they would have taken up the case. Or perhaps you're right and the court is just loath to pick up any case touching qualified immunity. If anything I'd guess that they just don't have much sympathy for satire against law enforcement (especially when it's not immediately obvious that it's satire).
I think they prefer to keep things narrow, as a general rule, right? That was what I was trying to express earlier: that the fact pattern of this case might not even lead them to QI, because some dumber issue might be at play.
The case itself is marginal, but the broader implication is that police are allowed to arrest and hold people for protected speech. That implication could (and I think likely will) have a significant chilling effect on constitutionally protected discourse.
Even more concerning is that the protected speech was criticism of the police force itself. It begs the concerning question of whether someone can be arrested and held for 4 days for criticism of the police at all. Could the police arrest someone for a Facebook post or webpage telling people not to talk to police without a lawyer? What about accusations that the police department is corrupt?
Any charges are unlikely to stick, but spending 4 days in jail is life ruining for a lot of people. People who have jobs could be fired. Single parents may have their children sent to CPS if they can't find someone else to take care of them. People on parole could have that parole revoked.
"In March 2016, Novak set up a Facebook page that purported to be that of the Parma Police Department."
Honestly why does anyone think this is not wrong?
Here is a link to some of his posts [1]
The guy was straight up impersonating the Parma Police - he used their branding/badge and started posting 'as them'.
There are some trying to defend that as justifiable because some forms of comedy require that the comedian be 'in character' and not overtly flag it as parody from the start, but I suggest this is a very bad argument - especially when people could confuse the target as 'real' - and imperatively when we're dealing with Emergency Services.
There is a 100% chance that some members of the community would have inferred this to be a 'real' account, there's hardly a reason to believe otherwise. The headlines were a bit nutty, but not entirely unbelievable to the point the parody was clear.
There is no reasonable argument he could make as a 'comedian' that he couldn't just put 'parody/satire' on the logo, and, there's every reason to believe that people would have confused it as real.
He's literally using Police Badges!
What would happen if he 'parodied' actual police officers, with a real uniform, but as a joke wore a 'red nose'. Would that be sufficient for people to be sure he was not a real police officer?
Would it be legal to use Amazon's brand/logo and misrepresent yourself as them?
I'm a bit disturbed by all of the people arguing this man was maligned, I suggest this is upside down and that it's irrational that someone should be able arbitrarily impersonate Emergency Services and the justice system and then just hide under the 'I'm a comedian' moniker.
I'll bet $100 the Police found out about it because they were getting calls around the confusion.
Nobody confuses 'Bush/Obama' impersonators as the real thing, the parody is implied, and those parodies are not creating a disruption. Nobody confuses 'Reno 911' as 'real' police officers.
I'm sure he didn't realize the extent of possible disruption and I would hope that he doesn't get some kind of record for this, but I do suggest he committed a crime and at very least this should not be allowed.
And can't fathom how people could think this ok to do.
It said the department was hiring, asked minorities not to apply, and said that passing a hearing test and a short multiple choice vocabulary test guaranteed employment.
No, a Jury didn't find him guilty of a felony and specific charges. They did not 'disagree' with me that such an account is innapropriate.
Go ahead and find out yourself: make a 'parody' account of your local police office by using their logo, badge etc. and then some fun posts. Have people call 911 out of confusion. See what happens.
>Honestly why does anyone think this is not wrong?
Probably because they think they're such superior detectors of satire that they will never themselves be hookwinked, and then Just-World-Fallacy away anyone who is.
While also, of course, bragging about all the places they got into by carrying a clipboard, and what an extreme injustice it is every time someone is falsely identified as an intruder.
Wikipedia says that he was charged of multiple crimes, and was dismissed/declared not guilty of all of them. Which specific charges do you think were unfairly acquitted/dismissed?
The parent poster seems to be claiming that even without being an agent of the state (ie. QI), that he was to "pull shit" without being punished by the justice system.
I don't understand why QI is controversial. If an AWS employee commits fraud as part of his employment which results in a financial loss for a client, the employee will be criminally liable, but amazon will be financially liable to the client. Why would it be different for a police department?
I think QI is there to protect officers making a mistake in good faith. So a better analogy would be an employee who breaks production and that results in financial loss to clients.
But the analogy would actually be that an employee who intentionally took down production in order to harm a client would still not be liable… because they sabotaged a component written in Rust which hadn’t been invented at the time that someone had previously been held accountable in a court case for sabotaging a program written in C. Thus, the doctrine holds, they could not have known their behavior was illegal, because their behavior did not exactly match something historical.
It would be an employee who intentionally deployed something to production. But that change turned out to be a mistake. Arresting people is the officer's job. This is a case where they arrested someone in error because they didn't understand the rules.
My understanding is that the people at the police department thought what they did was illegal and they should be arrested for that. Turns out they were wrong. I get that the system may make it too easy for people in bad faith to get away with things. And the reason why comparing it to development is that the developer and the user's goals are usually aligned, whereas there are different incentives in place for police work, so it's harder to rely on good faith.
That's bonkers too - why are police in the US not required to know the law they're in charge of applying, and why are illegal actions of theirs excused as "they didn't know any better"... why wouldn't they? It's literally their job, and non-police can't use the excuse that they didn't know something was illegal.
The law is complicated, fluid and extense. There's no way a police officer will know the law like a lawyer and, by design, they can't know the outcome of a trial beforehand, so it's impossible to fully know the law in that sense, as trials are what ultimately decide the laws.
I'm not saying that QI doesn't need to be reviewed, just that the notion that police officers should never take into custody someone who's innocent is not realistic. It just can't work together with democracy and the rule of law. The only possibility of police officers only arresting guilty people is if they are themselves the judges.
Just to be clear, as far as I am aware, QI is about civil liability, ie compensation, not criminal liability.
I don't even understand the point of shifting the civil liability from the police dept to a low wage employee who will not be able to afford the compensation.
> If an AWS employee commits fraud as part of his employment which results in a financial loss for a client, the employee will be criminally liable, but amazon will be financially liable to the client. Why would it be different for a police department?
It will be different because of QI: the reason Amazon will be legally liable is that the individual employee is legally liable in the first instance, and Amazon is jointly and severally liable for the employee’s liability (and a much more attractive litigation target, because you can’t squeeze blood from a stone but you can squeeze money from a trillion dollar corporation) because of the legal principal of respondeat superior.
Because the foundations of Enlightenment society are relatively stupid. The only way to maintain them in the face of their own contradictions is arbitrary threat of violence.
> The Cincinnati-based 6th U.S. Circuit Court of Appeals agreed in a ruling in April that "the officers reasonably believed they were acting within the law" even if his Facebook page was obviously a parody.
So police officers do not have to follow the law? They just have to believe that they are doing it?
Qualified immunity, a doctrine that I think was largely just wholesale invented by the Supreme Court out of nowhere because "it would be bad if this didn't exist."
Left, right, center, whatever. Everyone should be on board with getting rid of it regardless of political affiliation, there are reasons for everyone to hate that qualified immunity for government workers/agents is a thing.
It's way worse than that. Qualified immunity arose out of Pierson v. Ray:
> The case refers to the incident in Jackson, Mississippi where 15 Episcopal priests were arrested after entering the coffee shop at the local Trailways bus terminal. The group were part of 28 priests from Episcopal Society for Cultural and Racial Unity, ...
> On September 13, 1961, a group of 15 including three black priests took taxis from Tougaloo into the nearby Jackson Trailways bus terminal to catch the bus to Chattanooga. When entering the coffee shop to have lunch before their departure, they were stopped by two policemen, Officers David Allison Nichols and Joseph David Griffith, who asked them to leave. After the priests refused to leave, Captain J. L. Ray arrested and jailed all 15 priests for breach of peace, using a now-repealed section of the Mississippi code § 2087.5 that "makes guilty of a misdemeanor anyone who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer."
> The group included 35-year-old Reverend Robert L. Pierson, who was son-in-law to the Republican Governor of New York, Nelson Rockefeller. They were brought to trial before the local judge James Spencer who found them guilty of breach of peace and sentenced them to four months in jail and $200 fine.
> Represented by Carl Rachlin, the chief legal counsel at Congress of Racial Equality, they sought damages in the Jackson district court before Judge Sidney Mize, alleging the police and the local judge had violated Title 42, Section 1983 of the 1871 Ku Klux Klan Act by false arrest and imprisonment for exercising their civil rights. However, the jury found in favor of the police who said they were trying to prevent imminent violence from a gathered crowd, contradicting the evidence of the priests.
> On appeal, the Court of Appeals for the Fifth Circuit found that the local judge was immune from liability for his decision. Although the appeal court found the Mississippi code unconstitutional, it found that "Mississippi law does not require police officers to predict at their peril which state laws are constitutional and which are not."
I guess in this case I'd kind of agree? I fully believe police officers should know the law and act within it. But it's certainly not their job to judge if a law might be unconstitutional. That's what courts are for. And if a lower judge thinks a law might be unconstitutional, they also cannot just repeal it but instead send it to a higher court.
So if someone is in breach of a law, police should act.
The case discussed in the article is very different as police officers just believed they acted within the law. That should certainly not be enough.
As a police officer in 1950, being informed of an, according to then current state law, illegal abortion, how on earth could you know what would happen later? Today, could you be sure that last ruling won’t be overturned again?
This is where ACAB rhetoric comes into play. This is why cops aren't welcome at LGBT parades. People will debate, "oh, but what if a cop happens to live in a state that made gay marriage illegal again? And then they're told to arrest people that got publicly married at an LGBT rally? Shouldn't they 'just follow orders' rather than be held responsible for determining the constitutionality of a state re-banning gay marriage?"
Isn't that such an interestingly insane question? Qualified immunity lets people walk around unironically debating whether "just following orders" should be a valid thing that cops get away with doing.
As for the cop that "just follows orders" and arrests a newlywed gay couple in 2023 (an entirely feasible thing considering what's happening with women seeking healthcare in Texas), is that a Good Cop, or a Bad Cop?
Police officers take an oath to uphold the constitution. Maybe they should be versed on the basics, such as freedom of assembly, before they go around enforcing unconstitutional laws?
That's the thing, for civilians ignorance of the law is no excuse. But for police ignorance of the law is not only expected, but it also protects them from civil litigation.
> alleging the police and the local judge had violated Title 42
Judges gonna make judgements - that's their job. It's in the nature of judgements that they're not right or wrong. But in this case, the judge didn't even make the judgement; it was made by a jury.
It's not a good look to try and get a judge convicted for doing his job.
There was no potential for conviction here. They were barred from suing the judge and police officers civilly for damages. Qualified immunity only applies to civil matters.
It maybe says that laws are too strict, since they can’t apply in “sticky but necessary” situations, so maybe we should delegislate down to the baseline level of QI.
Not quite. From the appeals court opinion that the Supreme Court left standing.
> What’s more, the officers had good reason to believe they had probable cause. Both the City’s Law Director and the judges who issued the warrants agreed with them. Reassurance from no fewer than three other officials further supports finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed. Wesby, 138 S. Ct. at 591 (cleaned up). That’s enough to shield Riley and Connor [the cops who arrested him] from liability.
The reason qualified immunity is such a huge problem is that it's even harder to sue departments. There's a bunch of weird rulings that have the result that in America people who's rights are violated tend to need to sue individuals, who are then defended by the government. (If a cop loses a lawsuit the only consequence tends to be that the city's police misconduct insurance premium goes up)
In this case he also tried to sue the municipality, but that lost too
> Finally, Novak contends that Parma had an establ ished custom and pattern of “indifference to protected speech in criminal investigations.” Appellant’s Br. 57. And he runs through a list of cases where Parma had to reverse course over protected does not explain how this list of cspeech claims. But he ases could form a “clear and persistent pattern” so strong that it resembles official policy condoned by the City. 432 (6th Cir. 2005). Thomas v. City of Chattanooga , 398 F.3d 426, Perhaps unsurprising, since it’s a “heavy burden” to show municipal liabi lity based on custom. Id. at 433. Novak doesn’t even suggest (as he must) that this pattern resulted from a deliberate choice “from among various alternatives” that amounts to an unwritten “legal institution.” 507Doe v. Claiborne County ex rel. Claiborne C nty. Bd. of Educ. 08 (6th Cir. 1996) (cleaned up). Nor does he explain how that policy — , 103 F.3d 495, despite independent warrants from Magistrate Judge Fink and Judge O’Donnell See Thomas , 398 F.3d at 429 (quoting Doe — caused a constitutional violation. , 103 F.3d at 508). He simply argues that “Parma should have known better.” Appellant’s Br. 58. This is not enough to support a finding of municipal liability, so we affirm.
> I'm fine with the police personally not being liable as long as they believe they are acting according to the law.
That translates to cops never being liable, because they’d have to be caught confessing to it on tape for a “honest belief” defense to fail
> But where they make a mistake, the police department should be paying any compensation for places their behaviour falls short of the actual law.
That translates to the taxpayer paying for it, when odds are the taxpayer is also affected by it. So cop remains unbothered and taxes are used to compensate taxpayers for cop errors.
Ignorance of the law is no excuse in criminal law. The logic is that we want people to think about whether things are illegal, and we don’t want a loophole where you just have never watch the news and you can never be found guilty of a crime. The same applies to police. They need an incentive to know the law, not an incentive to ignore it.
This isn’t what qualified immunity is about at all, but you know, that’s why.
In general, if I break the law at work, I'm probably gonna lose my job. If I break stuff on purpose I'm gonna get fired.
If I "break" stuff that just breaks as part of my job (or was in ill repair), I don't expect to get fired and if I do, I have a claim.
About the only "eventually fired" that I can think of is by operating something in a way that it breaks despite being trained (repeatedly) in the correct manner.
I don't see anything in this article that indicates that the government official in question received qualified immunity because they acted like a police officer. It seems they already had it as part of their own job. Correct if wrong.
That is correct, but qualified immunity is supposed to apply to government officials acting withing the scope of their official responsibilities.
We emphasize that our decision applies only to suits for civil damages arising from actions within the scope of an official's duties and in "objective" good faith. - Harlow v. Fitzgerald [1]
For the courts to uphold that impersonating a police officer (which is a felony!) is with the scope of an engineer's duties is absurd.
Part of that is that we're being misled by this whole 'impersonated a police officer' spin. He didn't pull the trucks over and say, "I'm a cop! You're under arrest." Rather, he claimed (and presumably believed) that he possessed, as a highway engineer, the authority to detain trucks that were violating a statute.
Consider, in carrying out his official dutues, he has some degree of discretion in doing so. For example, some engineers might decide the best tool for their job that day is a slide rule. Others might decide on a given day to use an autoleveling level. And some, particularly Mr. Large, might decide on exercising the "detain trucks that are interfering with road work" provision. It turned out there was no such provision, and Large's job didn't have the authority to detain vehicles. But the absence of a statute specifically forbidding state employees (other than police officers) to detain trucks meant that he was entitled to qualified immunity.
Keep in mind that QI doesn't mean that the injured party isn't entitled to damages at all, it just means they have to sue the state and not individual officers/officials. Of course, suing the state has its own hurdles. Some government bodies have very short statutes of limitations for filing lawsuits against them, and they must receive advance notice before the claim can even commence. And the claim might need to be filed in a special court. And the state may be protected from liability if it had no advance knowledge of a condition, or by a statute limiting the amount of damages.
> "And some, particularly Mr. Large, might decide on exercising the "detain trucks that are interfering with road work" provision. It turned out there was no such provision"
If I make that mistake as an ordinary Joe, how much time would I spend in jail?
Why do you believe that qualified immunity only applies to police officers?
I won't pretend to be an expert---today being the first day I've read about it---but, the very first Wikipedia article I read about the topic discusses qualified immunity w.r.t. "government officials", not "officers", which is a much bigger category of people. [1]
I guess in many cases it makes sense. If the IRS messes up your tax return, you should sue the IRS and not the clerk that created it. For many government officials it's important to be protected by their organization.
Police officers just stand out because their actions can have much bigger consequences and they often act as individuals. But I don't think it should mean QI cannot exist, just that there should definitely be a different standard when it comes to life and death (or freedom in case of arrests).
QI typically comes up in the context of police officers, so people don't understand the QI was extended from legislators, etc to police officers despite no legislative basis for such.
Police unions are the only unions that conservatives have NOT spent 50 years screaming about and demonizing. It's only natural for them to be the only unions with any power or sway.
> Why do you believe that qualified immunity only applies to police officers?
Because it's useful to have the enforcers of state power to be above the law.
It's a bigger problem for police officers than the clerk at the DMV, because one of them walks around with a gun, a nightstick, and a pair of handcuffs, and extremely broad discretion for their use.
Does this mean I get qualified immunity too? I'm not pretending to be a cop but I think I should get it. This court will probably agree with me. Maybe all Americans should have qualified immunity!
Which is exactly the opposite of how it should be. I've thought for a long time that, if a cop is convicted as a crime, the simple fact that they are a cop should be considered an aggravating factor in sentencing, and even more harshly if the offense had any hint of abuse of their legal authority.
This makes sense in principle, but in practice police cannot both carefully adhere to the law and serve their intended function.
Police are expected to be the security force of the powerful and influential against society's undesirables. If cops were required to strictly obey the law, they would be much less effective at this job. Most officers would understandably opt simply not to get involved in situations which might lead to someone's rights being violated.
If the powerful want a force which is willing to knock heads for them, they need to assure that force it will not be held responsible for the mess it makes along the way.
In civilized countries the police should have rules for how to act under certain conditions. For example how to de-escalate and then it’s allowed to drive through a red stoplight. In those countries if a police officer would drive through a red light without reason the should get a fine, suspension or other consequences. And I agree with an earlier commenter, since they should be extremely aware if the rules and boundaries, violations should be punished stricter.
You say "but in practice..." but then proceed to handwave generalities. For instance, are you arguing we can preemptively say they don't have to follow any law on the off chance one of them might come up in the performance of their duties? It sounds an awful lot like you are, and there's essentially no "in practice" evidence to motivate that.
> are you arguing we can preemptively say they don't have to follow any law on the off chance one of them might come up in the performance of their duties?
You're describing the principle of qualified immunity, which is already in effect in US courts. I was suggesting an explanation for why this is the law of the land, despite it being in such obvious contrast with the principles of a free and democratic society.
If you don't agree with my explanation, I'd be interested in yours: why do you think cops are exempted from having to follow the law the same as other civilians?
You are correct, I'm not presenting the two as diametrical opposites though. What are diametric opposites, though, are the cultural attitudes behind the respective ideas. "We implicitly trust the police, and if they break the law they probably had a good reason" vs. "We hold the police to a higher standard of behavior, because in allowing them to use violence in their work, we have granted them much power."
It's not even that strong because of the "reasonably believed" bit: they just have to plausibly deny knowledge of precedent explicitly barring their (hyper-specific) action.
Are you sure that is the case? My understanding was that if any court had litigated the issue at all, then the QI drops away. The big loophole though is how narrowly the issue is interpreted. "Oh, I can't violate the rights of someone wearing a _yellow_ jumpsuit; I didn't know this applied to people also wearing yellow and not just blue! We never had a court case about that!"
My understanding comes from having listened to far too many 'Audit the Audit' videos while doing work. I could be mistaken, this is my understanding of the issue though.
> My understanding was that if any court had litigated the issue at all, then the QI drops away.
I'm not sure why this would be so given the way precedent works in US courts: since SCOTUS denied cert in this case, none of this applies outside the Sixth Circuit. Even within the Sixth Circuit, it's not clear that the same set of facts should pierce QI as long as the PC can be reasonably justified, an area where courts give police extremely broad latitude.
Could there be an impact from putting up some billboards about the legality of certain actions, where police officers would be likely to see them frequently?
I doubt it. There's too many ways for this not to work - the police testifies "I never saw that billboard". Even if they admit they saw it, so what? Anybody can say anything on a billboard, the police officer could say "Oh yeah, I saw it, but I have no idea if it's true" - and plausible deniability is sufficient as I understand it.
You can even put it on their qualification tests so you have documentation that they heard something was illegal and it doesn't matter. For many things they are effectively immune to prosecution. Add on that most prosecutors don't want to go after cops because they won't cooperate in cases after that.
Probably not. You can tell a police officer something is illegal, I'm not sure why they'd be inclined to believe you, especially in the context of you being arrested.
Democratic norms are on a troubling trajectory in the US. We as a people should have addressed this trend long ago. Now we’ll have to countenance much more discomfort to right the ship.
Some people are going to be upset, but in the end we can’t live in a “papers please” society with no freedom of expression. You want to cancel someone? Go ahead. You want to socially ostracize them? No problem. All that’s just freedom of association. Reasonable constitutionalists can have no problem with any of that.
But when you start arresting people? That’s a bridge too far. If the supremes say the law is good with this then we need new law makers, new laws, and new supremes just to be sure.
You act as if it's even possible at this point to "right the ship." I can't see any way for the trend to actually reverse, unfortunately. It seems far more likely that things continue to get worse resulting in either totalitarianism or (most likely) a complete collapse.
Right. SCOTUS has created a Catch-22 with a twist of Kafka: one's right to redress only exists as long as someone else has successfully gotten the courts to decide that some other police violated the specific expression of the right one wants to exercise.
There's a 100% chance that some (many, actually) members of the community would have believed this account to be 'real' ergo, he's impersonating an entire police force.
Ergo, reasonable to think he was 'disruptive' to Emerg. Services.
Here is one of his 'satire' posts [1]
Where is the satire?
I can't even see how that's funny to anyone, but that's besides the point, there's no reason for people to not be certain that it's not real.
Frankly is seems really 'real' to me.
EDIT: Here's a very salient point - I glanced at it and actually missed the specific detail about 'hiring upon passing a 15 question test'. Why? Because even as I knew it was parody, the badge was there, my mind was filling in the blanks. I had to re-read it and 'think about it' to realize that was the 'comedy'. That's part an parcel of why we're not allowed to impersonate police officers for fun.
He is 'impersonating' Emergency services. That's it. That's obviously not appropriate and surely should not be legal.
I suggest the Police were called out of confusion, which is very literally supporting the claims that it was 'disruptive' to their operations.
I'm sad that so many people here seem to think he was maligned, I suggest having a look at what he did.
'Making fun of cops' is obviously fine, this was just someone impersonating the police.
All of that said, maybe people are assuming this was all truly a clear, South Park satire?
strongly encouraging minorities not to apply and implying that they will hire you if you pass a hearing test, while probably their true feelings are clearly parody.
While it's a bit odd that 'minorities' would not be able to apply - but not even remotely within the realm of 'obvious parody'. Private and public services make all sorts of claims with respect to hiring. And BTW - I myself misread that (!) I thought it said 'only' minorities would be hired on first glance.
More broadly - anyone who thinks that this is 'obviously a parody' needs to get out more - meet actual people. Many Americans are not hugely clued in, not up to date with culture, have difficulty reading, hearing, moreover, we're all busy and will misinterpret key items - for example even both of us misread the statement.
My mother has used a 'Web Browser' for 20 years and she doesn't know what a 'URL' is. My father uses 'The YouTube' daily and doesn't really know what a 'Web Browser' is. He clicks on the icon, and gets the videos. That's his understanding.
Phone scammers take advantage of a lot of people, not just the elderly.
But if we put this to the test, and showed this to random people without any context at all, there's a 100% chance that people would believe some of the post are real, and at minimum, literally call the Police to ask what is going on, hence 'disrupting' police.
The case discusses a total of about a dozen calls. If this was enough to disrupt a moderately sized suburban police force in a meaningful way, then I think the issue is larger than just a Facebook impersonation account.
The bar for disruption must be higher, else any call that is not strictly the jurisdiction of the police is grounds for arrest as you're disrupting the services.
Consider a situation where someone runs a parody account about upcoming social events and makes a parody post about an upcoming "baby bbq" and asks residents to find they plumpest baby and bring it for a cookup.
While the account page mentions it's parody, the community members spread the post around without this context
Dozens of people call the police, some even demanding they send officers to stop the bbq, and the police only confirm the post not the account; should the police be able to SWAT the parodist without repercussion?
This gets into way too many edge cases of how much _immunity_ should the police have when performing due diligence. In the actual case, the disruption is arguable, and the urgency of stopping the posts/account was also arguable. That people fall for it is not the point; onion articles from more than a decade ago still get posted as real and get real outrage, so the general publics opinion is not a good bar as it constantly shifts and changes depending on who you ask
In this case there was not a major disruption any more than a concerned parent calling the police because they didn't recognize their neighbor at night.
The police had no urgent need to take action, could have handled this without any police action.
The charge is that the police did not like being parodied and thus used their power to shut down free speech, and now the courts are supporting this.
I think it's a bad choice to not hear this case and the police are in the wrong. They are over reacting and trying to litigate someone into having their rights suppressed.
This is not about 'the specific proportion of disruption' - it's about impersonating police and emergency services.
The 'disruption' is not just measured in 'how many calls and how much that disrupts' - it's a measure of civil disruption and confusion.
"The case discusses a total of about a dozen calls."
This is about a call per hour (!) because of a parody.
First - a call an hour over 'confusion of some web site' is quuite high, and that alone is materially disruptive.
Imagine having a startup, and your assistant is literally fielding a call every hour about some confused granny, immigrant/non english speaker, or other random person? That's a lot.
It's also an indication of now nutty the situation must be and how such a large number of people were confused.
But that's a bit besides the point, because it's clear that the man was ultimately impersonating a police officer to the point where obviously mebers of the community were confused as to the nature of what is going on. That's bad.
Frankly, I can hardly believe what I'm reading about all of this.
I think 'online' - people take academic positions that are detached from reality.
Coupled with HN's obsessive libertarian/hacker streak, and you have an entire thread taking an absurd position, supporting a who's impersonating police, causing obvious confusion in the communnity.
"The police had no urgent need to take action"
? They are literally getting a call an hour about some confusing over their online presence. They absolutely have to respond. This is not just some 'civic office' thing it's the frigging police aka 'emergency services'.
"The charge is that the police did not like being parodied"
No, there was someone impersonating the police wiht a whacko account - you can't do that. Legally, morally, pragmatically.
I'm sure this guy probably thought he was just 'being funny' which is fine, and I think they should have just told him to put 'parody account' on the posts so that people knew it was a parody and that would be the end of it.
If you want to find out how this works, go ahead and do the same to your local police. Make a 'parody account' (that looks identical to the real one) and really push the boundaries of what you think is 'free speech' and put out some seriously dark humour about specific individuals.
Then see what happens.
Again - a legit pardoy without confusion, 100% fine, but this guy should have the self awareness to realize what he's done. But instead he's trying to be a victim, claim that he has arbitrary rights to do things he shouldn't do, to make himself the center of atteniton and rake in a few million dollars.
He should have apologized and changed the account.
Also FYI I don't see why the police should have put this guy in jail, he shuld have been out on bail at minimum while it got cleared up. Frankly he should have been just told to 'take it down or mark it as pardoy' and that could have been the end of it right there.
If he opens a true parody account that is labeled as parody and then he gets into trouble, we can take up the discussion again under the premise 'cops won't allow parody'.
> it's about impersonating police and emergency services.
You can't to have it both ways and you don't seem to understand legal definition of ompersonation -
Impersonating is intentional effort to blend inm Parody is making jokes that stand out.
Just because you dont get the joke or are not clued in, does not suddenly give the joker Mens Rea and make him an impersonator. It's your problem, not the joker's.
If people read about your police force helping pedophiles, and it sounds like something the police would do, that's their problem.
> The 'disruption' is not just measured in 'how many calls and how much that disrupts' - it's a measure of civil disruption and confusion.
Oh man there is so much social confusion, so many people to jail.
Lets start with journalists that write about drone strikes killing innosent people. The government said any male over 16 is 'enemy combattant' and these journalists are creating social confusion.
Now, 9/11 truther? Causing confusion, straight to jail.
You think enchanced interrigation at guantanamo is torture? Confused, straight to jail. Dont support war in ukraine? Confused, straight to jail.
You wrote an article about how FBI groomed autistic people into planting a fke bomb so they could arrwat them as terrorit? Super confused, life sence.
> There's a 100% chance that some (many, actually) members of the community would have believed this account to be 'real' ergo, he's impersonating an entire police force.
The appeals court touched on this issue specifically to say that (a) police reasonably inferred probable cause from this, but (b) the standard is "reasonable reader" rather than "most gullible person on Facebook", so (c) it's definitely protected speech.
Besides, he was acquitted. Prosecutors actually took this nonsense to trial and failed to convince a jury of your conclusion.
It's obviously wrong and will eventually be challenged.
It's ridiculous, all of the poeple here defending this.
Literally a call an hour to the police station, among the small number of people who saw the site just in the first few hours, and actually decided to make the call? That's clear evidence that enough people in the community were confused, and conclusive evidence of material disruption.
Moroever, I think the most 'rational' conclusion given the situation would be that the Facebook page was hacked, not that it was a fake account - that's what I would have inferred without doing much research.
The lack of understanding of basic communications here as well - it's as though people on HN don't know anyone outside of their bubbles.
Go into your community and meet some actual people. Old people, less educated people, migrants, people with disabilities. Just hop on the bus and start up a convseration with a random person to see what 'average' is.
Moreover, there is the problem of the 'authority of the brand' aka the emblem itself.
If a police officer came to your door, presented a badge and then started doing some whacky stuff, how long would the average person hold out before being sure it was a farce?
The badge/brand itself is a marker of credibility which makes the participant have to assume a degree of validity. Which is the whole problem with impersonating memebers of the justice system.
Let's try an adjacent case:
You dress up as a real police officer, and then start acting like and idiot. Free speech? Why wouldn't the 'average person' know that you're doing satire? Go ahead and try.
"Judge, I knocked on the door in uniform, showed a real badge, and then told the person to do 20 jumping jacks! Clearly every reasonable member of the communnity would know that police officers don't ask you to do 'jumping jacks'!"
It's not up to the community members to have to use their inteligence to do some kind of discrimination, it has to be 'clearly' not a polic officer.
Which is why when the stripper shows up at the door, they don't wear real uniforms.
Let's look at the negative cases:
If it was clearly and obviously legal - then why don't they sell real police uniforms everywhere? So that you can go and be a buffoon for 'satire'?
There should be 100's of web sites that 'impersonate the police' but using 'real badges and branding'.
Let's look at the civil commercial scneario:
How long would you last running around in a real UPS uniform, making a fool of yourself making 'fake deliveries'?
How long would you last using a real UPS/Amazong/McDonal'ds logo/branding on your web site - changing only a few details for fun?
Obviously there'd be liability.
Whether or not that his man was doing 'satire' not is besides the point - he was impersonating Emergency Services.
Go ahead and do exaclty what he did in your own home town / region and see what happens.
Yes, correct. That's been the case for a while now and is part of the reason why they've gotten away with murder, theft etc even in circumstances where video evidence obviously implicates them.
Policing as an institution in the US is incredibly rotten and backed up by the abuse of qualified immunity.
It had the police department logo, with no mention that it was a parody. The post said people would be arrested if they went outside at certain times.
I would like to think that most people would question and fact check clearly weird shit like this. But, as we now know, the vast majority of people do not fact check. They take dumb shit like this at face value, hook line and sinker.
Read the brief filed by The Onion. It is hilarious, but also a masterwork in arguing that parody only works by initially fooling people into believing it is real, which is illustrated by its own parodies of a legal brief. People have been trying to sue parody creators for not including a disclaimer since before the US existed, see Jonathan Swift's A Modest Proposal. They cite ample precedents that US courts have consistently held that disclaimers are not needed to distinguish parody from sincere libel/slander for a "reasonable person," who precedent holds is not the average person or a "lowest-common denominator, but of reasonable intelligence and learning."
Her voice mail explodes with callers from all over the country after the poster gets shared online. Hundreds of calls. She gets three types of messages, which she catalogued:
1. Those who didn't realize it was a joke or weren't sure and called to politely let her know she had found a possum, not a cat. About 70% of callers.
2. Those who realized it was obviously a joke and called to tell her she had found their cat. About 20% of callers.
3. Those who didn't realize it was a joke and called to tell her how dumb she was. She got some really mean messages. About 10% of callers.
>They cite ample precedents that US courts have consistently held that disclaimers are not needed to distinguish parody from sincere libel/slander for a "reasonable person," who precedent holds is not the average person or a "lowest-common denominator, but of reasonable intelligence and learning."
This wasn't about slander though. It was about the 10 x unnecessary 911 calls caused by the page. He also didn't help himself by deleting all comments saying the page was fake, and posting a warning on his page when the police posted a warning about his fake page.
Is there really no way to allow this other than a giant website banner that says "THIS IS A PARODY"? For goodness' sake the page was even posting images of bacon referring to old and well know pig/police jokes...
Even though they were arrested by the police, the site was considered a parody by court and he was acquitted. The case in question is about whether the police was liable for wrongly arresting him, which the court found they are not
Thank you that is an important clarification. To me the line between legality of the page and practical outcome seems like a distinction that's getting greyer. If I can be arrested and held in jail for four days with impunity, that's enough to scare me from criticizing the police, even if I am confident I might ultimately prevail in court.
Criticising the police is unlikely to get you in jail. Theoretically he was arrested for impersonating the police, which is a crime. It's just that when it's a clear parody, then it's not illegal. That is a bit nuanced, though. And you can see how some officer may get that wrong. By the way, now that this has been tried, it's extremely unlikely you will be arrested or investigating for creating a parody page in Facebook. At this point, they would lose in court if sued for wrongly arresting someone that did this exact same thing.
Anyway, if you do things that are in the boundaries of the law, you shouldn't be surprised if you get arrested.
>> It had the police department logo
> Doesn't matter.
Uh, actually, if nothing else --- this should definitely matter.
>> But, as we now know, the vast majority of people do not fact check. They take dumb shit like this at face value, hook line and sinker.
> Doesn't matter.
So the consequences of one's actions, don't matter?
It is legal to parodize your local police department if you live in the US. (You would get in trouble if you tried to make parody traffic stops with a parody police car with parody flashing lights, but that’s very different than a Facebook page.)
> So the consequences of one's actions, don't matter?
The government may not punish legally protected First Amendment speech - which parody absolutely is.
You can't be punished for parody or speech itself, but you can be punished if you break any laws by publishing that speech. I don't see any laws broken by the Yes men example.
It is reasonable for the police to believe that the law was broken in this case, due to the 911 calls and similar disruption that could reasonably be expected to happen in this case, and the judges agreed, which is why his legal bid to sue the police failed.
If the community you police cannot tell that a facebook post talking about minorities needing to pass a special test to join the force is parody, then that should tell you how horrifically bad your police department is.
No, they just have to claim that they believe it. It's not like the judge can read their mind and prove they're lying. Another example of how, although small-scale corruption is rare in the US government (i.e. we don't have a culture where it's normal for ordinary folks to bribe cops or other officials), we have plenty of large-scale corruption baked right into the system. For further information, I refer you to the works of Messrs. E, Ren, and Cube, and Dr. Dre.
A step in the right direction surely? After all it seems from reading the news that previously they didn't even believe they were following the law! :-)
In unrelated news, police forces across the country have been trained to view the public as enemies who might kill them at any time [see Dave Grossman], and supplied with alarming amounts of military / SWAT level equipment.
It does not matter, police officers have qualified immunity in all cases except when they don't, and they don't only if there is already a legal precedent telling they don't. Yes, circular reasoning.
They do follow the law. Also the guys was arrested, and not criminally convicted.
Police arrest criminals before they’re trialed all the time…e.g. someone arrested for murder or robbery is not guilty until a trial, yet he or she was still arrested
Imagine you are operating with good intent, and are now personally liable for every call you make under duress trying to fight crime. Batman has to crack a few eggs.
Nobody would want to be a cop without some form of protection, but having this protection covers the worst cops. A tough situation, but if we make police work unappealing, what will we achieve? Are there successful examples of this?
It is also interesting that software engineering is one of the only engineering professions that has no industry regulation or personal accountability for negligence.
What if the first words associated with policing were "serving the community" or "supporting neighbors" rather than "fighting crime"? What if lower crime came as a second order effect from having professionally helpful people around and available?
What if recruitment focused on hiring warm, generous, and communicative people who can relate to troubled people and deescalate complex situations -- competing for candidates from nursing and education programs -- instead of on mimicking military structures and courting highly volatile aggro meatheads?
Would these discussions still immediately turn to how "eggs have to be cracked" to defeat the baddies? Or would the discussions instead be about process failures that might be remedied through analysis and reflection?
I'm as much against Civil Forfeiture as the next guy, and I think there are plenty of wrongs with cops today.
But you have quite a hill to climb with your argument.
There has never been a police force at scale implemented anywhere on earth with the qualities that you state. Not saying that its not possible. But there's a reason people some people become nurses, others become gamblers, other become politicians, teachers, and cops.
I think you could expect better outcomes from simply having more effective means of separating the bad apples, vs taking QI completely off the table for the good guys.
Note - I'm not even against abolishing QI. Yet when I see arguments like this that hinge on changing human nature... and replacing it with a novel concept in recruiting, that has never succeeded anywhere on earth for thousands of years....
> What if the first words associated with policing were "serving the community"
Then the job would be "community service"; we have that in the form of, say Red Cross. Policing by definition is anti-crime in purpose.
Maybe there's a place for the sort of agency you envision, but regardless of the goodwill of others, there will always be wolves trying to eat the sheep, and we'll need an agency to deal with them.
I agree. Furthermore, imagine if the police were measured by the number of crimes they actually prevented versus the number they documented. Yes, I realize that these are orders of magnitude of difficulty in difference. The important thing being that one is what they are expected to do, the other what they actually do.
There are two groups of officers described by the parent post: ones who try to fight crime, and "the worst cops". They aren't the same group.
The challenge is how to protect the first group and not the second. Would you want to be a cop if every shitbag you arrest is going to sue you for some frivolous crap? You will lose some of those cases even if you are a saint of a police officer.
> ones who try to fight crime, and "the worst cops". They aren't the same group.
They are the same group, because the ones trying to fight crime will eventually witness a "worst cop" committing a crime, report it, and then get fired.
Or "the worst cops" will be put in charge of training new recruits, made their supervisor, and then ignore their complaints as he kneels on someone's neck until they die
Have medical doctors already solved this through insurance? Not a fantastic solution, and it increases costs, but it does provide due process for people making claims, and allows a court to decide whether a doctor did something wrong.
Other professions have surety bonds and professional liability insurance. Right now if a cop does wrong the community pays. Rescinding qualified immunity and requiring sworn officers to personally bond and insure themselves would incentivise good behavior and appropriately redirect negative consequences to the actual problem sources.
> Imagine you are operating with good intent, and are now personally liable for every call you make under duress trying to fight crime. Batman has to crack a few eggs.
Batman isn't a cop, Batman is a vigilante sociopath with a bat fetish who assaults the poor and the mentally ill because he can't process trauma like a normal person. Batman is only allowed to exist in the context of a corrupt justice system that wants someone like him and his circus of violence to distract the citizens of Gotham from their own systemic corruption. In a just society he'd be in a padded cell where he belongs.
We shouldn't want police to be Batman. We shouldn't just accept the premise that the cops just have to "crack a few eggs" now and then. That's just conceding to authoritarianism.
> sociopath with a bat fetish who assaults the poor and the mentally ill
> padded cell where he belongs
Times change, and the heroes of yesteryear become the villains of tomorrow. Seems to me there's a quote about that.
In a just society, he wouldn't have turned out the way he did to begin with. You know, because Gotham, and his world, wouldn't be fucked up the way it is.
> We shouldn't want police to be Batman. We shouldn't just accept the premise that the cops just have to "crack a few eggs" now and then. That's just conceding to authoritarianism.
We shouldn't want Batman, no. But nobody here is arguing that police should be able to do whatever they want, whenever they want, just because, hell, they felt like it. That's not what's meant by "cracking a few eggs". The argument is that mandatory strict adherence to every possible law at all times, is possibly not the best way to combat crime perpetrated by criminals who by definition are disregarding the law.
>In a just society, he wouldn't have turned out the way he did to begin with. You know, because Gotham, and his world, wouldn't be fucked up the way it is.
Except... Gotham being what it is, Bruce Wayne isn't the only person to have lost loved ones, even parents, to criminal violence. Other people learn to deal with it and move on with their lives. It seems to be just Batman and the Joker who feel society owes them a blood debt for the pain it caused them.
> But nobody here is arguing that police should be able to do whatever they want, whenever they want, just because, hell, they felt like it. That's not what's meant by "cracking a few eggs".
OK, but that is essentially what the idiom it seems to be drawing from means - "if you want to make an omlette, you have to crack a few eggs," implies breaking the law and/or people to get something done. It's just a prosaic way of saying the ends justify the means.
And anyway, for the most part, police do do whatever they want, whenever they want, just because, hell, they feel like it. And QI lets them get away with it.
>The argument is that mandatory strict adherence to every possible law at all times, is possibly not the best way to combat crime perpetrated by criminals who by definition are disregarding the law.
If mandatory strict adherence to every possible law at all times makes it impossible for the police to fight crime, then maybe the problem is there are too many laws, and they're too strict. Because remember, the police don't chase criminals, they chase suspects assumed innocent until proven guilty by a court.
We're not even talking about high speed chases, crimes committed in undercover work, property damage, shooting dogs, no-knock warrants or any of the extralegal things police do that put the public in danger for the ostensible greater public good. We're talking about a Facebook parody. The police could have just, you know, had it flagged or something. But they chose violence because the police always choose violence. Maybe when they're obviously wrong, they for pay for it.
> It seems to be just Batman and the Joker who feel society owes them a blood debt for the pain it caused them.
This seems to be going a bit off the rails, I guess I'll just say the Batman I'm familiar with seems to be different from yours, and leave it at that.
> If mandatory strict adherence to every possible law at all times makes it impossible for the police to fight crime, then maybe the problem is there are too many laws, and they're too strict. Because remember, the police don't chase criminals, they chase suspects assumed innocent until proven guilty by a court.
Possibly. I definitely feel there are too many laws, and many seem arbitrary and/or too strict.
> But they chose violence because the police always choose violence.
I guess I missed the part where they beat him into submission. I had thought they just arrested him.
And, maybe he didn't deserve to be arrested. I don't know. I do think what he did shouldn't really be morally defensible, but that's a different argument that's been debated into the ground elsewhere in this thread.
> for the most part, police do do whatever they want, whenever they want, just because, hell, they feel like it.
> police always choose violence.
I'm afraid this is where any meaningful discourse probably ends. I can't say I really get along well with most officers, but this is also not what I've seen out of most officers. You get some definite assholes, and some bigots. But words like most and always seem pretty far out of line.
Literally hundreds of police forces in other countries have to broadly follow the law while exercising their powers.
How do they manage this? They have training manuals which break down the law for them in basic, easy-to-understand terms. These are used in training and are widely available to the police, including when a scenario develops. For example: when is it legal for a police officer to move a member of the public's car without their permission? Rather than discuss detailed case law or legal concepts with funny names, it just gives standard examples and standard exceptions (when moving the car is immediately necessary to prevent damage to the car; when moving the car is necessary to prevent damage to some other property; when a order clearing the road has been obtained AND sufficient notice has elapsed since blah blah BUT NOT when the order was obtained AFTER... etc).
Are police officers in these countries often prosecuted successfully over slight discrepancies between this type of summary and the exact legal position in grey area cases? Of course not. But they are subject to prosecution in scenarios where it can be demonstrably shown that, for instance, none of the conditions for moving a vehicle applied, and it must have been clear to the officer at the time that none of the conditions applied.
> Nobody would want to be a cop without some form of protection...
Every other profession has protection in the form of insurance. A bad cop's insurance policy will eventually become too expensive to do the job and will have to find another line of work.
Stated more correctly: police officers cannot be found personally liable in civil court for breaking the law. They can be prosecuted by the state for crimes they commit, and the agencies that employ them can be sued for damages.
But no, in practice you can't personally sue a cop in civil court in the United States for anything that can be even vaguely understood as police work, no matter how terrible an abuse it is.
Actually, there is at least one case showing you can't sue a government employee of any kind for anything that can even be vaguely understood as police work, no matter how terrible an abuse it is. The case was about a government engineer who legally acted as a police officer, but still got QI in his capacity as a government engineer for it, and it is settled (SCOTUS declined to hear it).
Most commentators seem to be reading way to much into this, although NBC news bears some of the blame for that.
This is a case of the Supreme Court declining to hear a case, not a case of the Supreme Court hearing a case and then making a decision.
You can't really infer anything about the Court's opinion on the merits of the case in these situations, because there are a variety of common reasons for them to decline to hear a case that have nothing to do with the merits.
∙ They often don't want to take a case on some issue unless there has been conflicting rulings on that issue in different circuits.
∙ They often don't want to take a case unless the issue has been dealt with enough times in the lower courts to have hashed out the major arguments for both sides.
∙ Even when it is an issue that they think the Court should be taking up, they often like to wait until they get a case that presents the issue cleanly.
∙ If they think that the issue could be addressed adequately by legislation they will often decline to take a case.
∙ There are more cases submitted than the Court has time to handle. The case may simply have been pushed aside by more important cases.
This is all true, but those points don't apply well here. This was a Qualified Immunity case[1], and one of the clearest abuses of that broken paradigm. There was genuine hope that this, finally, would be the case SCOTUS would take to clear up this mess. But I guess we have to keep waiting.
[1] Essentially, as interpreted: you can't sue a cop unless some other court found another cop liable for exactly the same abuse. And since other courts are bound by the same principle, there aren't any such rulings. Obviously wikipedia will explain this more dryly, but the actual principle as applied really is this circular. It's a disaster.
QI isn't a law, though, that's the thing. SCOTUS just made it up in 1967.
I mean, actually there already is a law. A common sense reading of "No State shall [...] deny to any person within its jurisdiction the equal protection of the laws" would be interpreted to mean that cops and non-cops can be liable for the same things in the same ways.
But no, cops are special, and not because congress legislated a particular regulation regime, but just because the civil rights era court thought it was unfair to cops to hold them liable for arresting black protesters without cause.
[1] Too lazy to cite the actual law. Finding it is left as an exercise for the reader.
In effect, in the U.S. one risks punishment by the state for criticizing the police and there is no recourse against such punishment. We have de facto a situation like exists in Russia where criticizing the armed forces is illegal.
Slowly, Americans will come to realize that we don’t have the rights we think we have. Spending a weekend in our hellish jails is enough to dissuade most people from exercising their rights. When stopped by the police the key thing to keep in mind is compliance. Accept any tickets, obey all commands (lawful or otherwise), answer the questions. If you disagree with the encounter take it up at a court hearing. Police can mess up your life with almost certain impunity and you should treat encounters with them with this in mind.
Long term something will give. We will continue to march toward totalitarianism until it is no longer sustainable.
>Long term something will give. We will continue to march toward totalitarianism until it is no longer sustainable.
That can be a very long time. The Soviet system lasted for many decades before it finally collapsed (and what's there now is even worse, though not for the satellite nations that freed themselves from Russian dominance), and the Chinese system is still going strong. I don't see North Korea in danger of imminent collapse either.
I think the idea that totalitarianism isn't "sustainable" is a fallacy. Long-term, nothing is truly sustainable; every governmental system falls apart at some point.
It was economic, but the common theory is that the totalitarian system was so inefficient that this caused the economic factors that made the system collapse, and that a free-market system would have avoided this.
China, by contrast, has a totalitarian system but a much more free-market economic system (a lot of big companies are all or partially state-owned, but the economy as a whole is not centrally planned like in the Soviet system).
Your point is that central planning was a failure.
That's mostly orthogonal to the regime, even if it's easier to do with a totalitarian system. We could imagine central planning with a democratic system, one could even argue that we have bits and pieces of central planning in most of our governments, especially in agriculture and fields that make no money but are critical to a nation.
>That's mostly orthogonal to the regime, even if it's easier to do with a totalitarian system.
Yeah, that's basically my point: that totalitarianism isn't necessarily "unsustainable" at all. The US could become totalitarian and stay that way for centuries.
In many ways the USA has been totalitarian for its entire existence. Not in the same way as the DPRK or the Soviet Union, sure, but in its own special way.
Consider that for nearly the first 100 years of the USA's existence (just under half of its existence), black people couldn't vote. To black people, the USA had been an extremely authoritarian state that entire time, especially if they were enslaved, obviously.
Consider that half the population (women) didn't get a constitutionally guaranteed right to vote until the 1920s. That's 144 years of the USA's existence!
Consider that even after these constitutional amendments, the USA was still an extremely authoritarian state in many ways. Black people forced by law to use other facilities until within the last 60 years, then still facing pushback due to things like Massive Resistance and simple racism.
Consider that the USA had concentration camps for Americans that happened to have Japanese heritage within the last 100 years.
Consider that the USA today has the sixth highest incarceration rate per capita.
Now that's just laws and whatnot. There's the other side of the coin, which is the massive political and actual power wielded by American companies, particularly in media and news.
George Lucas once argued that Soviet filmmakers had more freedom https://www.youtube.com/watch?v=SWqvaMEFIdI . He pointed out that Star Wars was supposed to be a straight up blatant reference to the American intervention in the Vietnamese revolution, with the Empire being the Americans and the Rebels being the communists. He points out that he would never have gotten than movie approved if he had made it more obvious. Which reminds me of another blatantly totalitarian phase of American history: McCarthyism. (he doesn't mention vietnam in the above video, he mentioned it later in an interview: https://www.chicagotribune.com/news/ct-xpm-2005-05-18-050518...)
Then we have stories like we're discussing here, the general day to day interaction Americans have with their police of various agencies. Police are out there straight up murdering innocents, such as Breonna Taylor, with basically no repercussions.
So the USA is no Soviet Union, there may not be gulags and secret police... but there is the NSA, there are local cops simply arresting people that criticize them with no consequence, there is the legislated absolution of constitutional rights within 100 miles of any border (the majority of the populace living in places like this). There may not be one party... but there might as well be, outside of culture war issues both falling in line for corporate, oil, telecom, and war interests.
In short I argue that while the USA is not "blatantly totalitarian" like the DPRK or the USSR, it is totalitarian in another, almost more sinister way. It's more intangible, difficult to argue against. The movements that come up against it, such as Black Lives Matter or Occupy, often fail to outline clear demands, because it's just so damn vague what the problems are all. Or perhaps they're just so widespread.
I reject that USA has been a totalitarian cause it has had slaves or women has not always been allowed to vote.
I think you must look at the way the rest of the world was during the same time to get a honest picture of the "totalitarian state" of USA.
Hand pick some historic situation and then comparing versus a "Perfect World" (and since USA was not as good as this Perfect world.. then it must totalitarian/evil/..)
This is not an honest way to frame the argument
Throughout the more than hundred thousand years humans have been organizing societies there is ample evidence for vastly more egalitarian societies than anywhere close to what the usa has achieved. I'm not comparing to a mythical utopia, I'm framing within the definable boundaries of human history.
I think you're totally not understanding what the term "totalitarian" means. It's not the same as "authoritarian". Authoritarian systems have been around since rulers became a thing, but Rome, various medieval kingdoms, etc. were not "totalitarian" by any means. It's entirely a product of the 20th century.
> It was economic, but the common theory is that the totalitarian system was so inefficient that this caused the economic factors that made the system collapse, and that a free-market system would have avoided this.
That common theory is too simplistic. Soviet leaders (Gorbachev most notably) have said it themselves, the Union came crashing down economically in big part due to Chernobyl. Without the massive expenses associated with the coverup and cleanup of this disaster (which could have happened everywhere, plenty of capitalist and authoritarian countries have seen terrible corner cutting resulting in massive accidents), the Union could have lingered for who knows how long.
No system is stable forever. We get things like the Reformation and the 30 Years War when imbalances occur. I was not intending to convey a belief that totalitarian regimes can’t last for a long time. Rather I was indicating a belief that what we have are the beginnings of an imbalance in the system and that something must give. That give could be Americans accepting that the notion “we are the freest country in the world” is wrong and being ok with that.
> In effect, in the U.S. one risks punishment by the state for criticizing the police and there is recourse against such punishment.
He won at trial. If cops ever do it again he can point to the trial as clear prior evidence.
This is about being arrested in the first place for something the cops think is illegal, but isn't. It's not about criticizing the police.
This is also why he lost at the supreme court - the case was NOT about criticizing/parodying the police, it was about police conduct if they think something is illegal.
I feel like a lot of people aren't realizing this distinction and making this case into something it is not.
This case isn't about free speech and rights suppression much the same way that he lost at the Supreme Court. The reality is he didn't lose at the Supreme Court... the Supreme Court didn't hear the case, they simply declined to hear the case. So he lost in a lower court and that ruling isn't being revisited.
> the case was NOT about criticizing/parodying the police, it was about police conduct if they think something is illegal.
Actually, this isn't correct either. The rejected case wasn't a free speech case nor even about what the police actually believed about something being legal/illegal. It was about whether or not he could sue the police department for their act. So the question you suggest the case is about hasn't been tested, though presumably it would have done so had he been able to sue. The question here was if your rights have been violated can you pursue a civil case where such questions as if the police acted in good faith (and that mattering) could be raised. Here the courts have said the question itself is out of order because there's no prior precedent of such a reasonably similar case having been pursued.
This is why people that care about the individual rights implications are concerned about this case. If the precedent held by the courts says that you can't even raise the challenge because there's no previous precedent of such a challenge having been raised before, you prematurely answer all the questions without so much as a hearing. If that's true, then an agency that might violate your rights either out of malice or ignorance, will never have to do better. They are immune from challenges presumptively regardless of the legitimacy of the challenge relative to what the law says the rights are. To simplify the "right" becomes endangered of carrying any actual weight.
Here the courts have said the question itself is out of order because there's no prior precedent of such a reasonably similar case having been pursued.
How is that possible? Police have harassed people in every conceivable way since time immemorial, and people must have tried to sue over it.
What made this case so utterly unprecedented that they couldn't even imagine hearing it?
I don't know what made this particular case utterly unprecedented. However, one criticism of qualified immunity is that it protects law enforcement on the basis of otherwise irrelevant facts.
https://www.cato.org/policy-analysis/qualified-immunity-lega...
> In practice, this legal standard is a huge hurdle for civil rights plaintiffs because it generally requires them to identify not just a clear legal rule but a prior case with functionally identical facts.
Whether prior precedent is possible or not really shouldn't be the issue. Such a standard itself is the problem: if your rights are violated in a legally novel way, why do courts pre-judge such a case against the victim? Sure, precedent matters, but when a legally new situation arises (a distinction which might be different than what a reasonable layperson would consider "new"), it seems the more morally correct approach is to hear the case and set precedent. Courts do that all the time in other matters so this distinction in judging government agent's actions is particularly absurd.
If you aren't allowed to sue the police without precedent, precedent will never be created, so you can never sue the police. There's a bootstrapping problem.
It's just another way that the justice systems infatuation with "precedent", as if that's any way to democratically decide things, fucks each and every one of us constantly.
The trauma caused by being arrested and spending time in jail waiting for the system to process you is already done. Winning at court is irrelevant. What is instilled in the people is the normalization of police terrorism. We don’t have rights if exercising them means risking a traumatic encounter with police with police being immune to any consequences.
No. But I know people who spent time in Cook county jail. I know that in any jail in the U.S. a prisoner’s well being is at the whim of those in charge. There are lots of examples of dead, beaten, and otherwise traumatized prisoners. There are also examples of people who did just fine in jail.
> There are also examples of people who did just fine in jail.
Most, probably, from what I've seen. At least in my area. However...
> a prisoner’s well being is at the whim of those in charge.
Don't forget the other inmates! My cousin's cellmate, in for murder... beat the everloving bejesus out of some dude in the gym, some days before said cousin arrived (honestly he probably deserved it, but that's beside the point here). Why he was still roaming around freely with the rest of the pod, I never did discover.
Getting beat by other inmates is part of the “at the whim of those in charge” comment I made. The government can provide enough resources to largely prevent this type of violence from being common but chooses not pay to do so. It’s part of what makes our jails hellish in some cases.
That statistic doesn't mean anything obvious at all. It might mean something, but it sure as hell isn't obvious (unless you have an agenda to push, then whatever you're interested in is "obvious" and "true").
> Novak sued the officers and the police department, saying they had violated his free speech rights, as well as his right to be free of unlawful searches and seizures under the Constitution's Fourth Amendment.
> After lengthy litigation, a federal judge dismissed Novak's claims.
What is the point of the fourth amendment if it can be ignored via qualified immunity? Are there any situations where it could still apply?
I agree that dismissing evidence that was gathered illegally is reasonable, but I don’t think it’s sufficient. Even if illegally gathered evidence could be identified and excluded from use in trial, it does nothing to redress the wrong that was committed in gathering that evidence in the first place.
Namely, loss of privacy is a harm in itself, not merely something that may lead to further harm. The exclusionary rule can prevent further harm, but cannot restore the peace of mind and security that was lost.
OK, but worth keeping in mind that much of Europe (for instance) doesn't have an exclusionary rule; whatever redress you have, it does not include not having the illegitimate evidence weaponized against you.
I think that both are entirely necessary, and neither is sufficient on their own. Excluding evidence that has been illegally collected is necessary, as otherwise there would be an incentive for officers to collect the evidence anyways, if the career growth from cases outweighs the punishment. Redressing the breach of privacy is necessary, as otherwise an officer could harass an individual through unreasonable searches, each time claiming that they believed the search to be justified.
Also to mention, illegal evidence and evidence collected by committing a crime are two separate concepts. The former refers to a violation of evidential procedures.
Modern data troves basically circumvent anything ever being thrown out unless the police are utterly incompetent, which they often are, or purposely violating rules.
This is a strange situation where I don't think that Congress could easily fix the situation, though maybe someone with more expertise can correct me.
Since the concept of qualified immunity is something that the courts came up with, normally Congress could reign it in.
In this case, however, I can't think of an enumerated power that would allow the federal government to dictate policing liability to the states. With few (questionable) exceptions, police powers are reserved to the States.
This would need to be legislation passed in every state, unless there was enough appetite for a Constitutional amendment addressing it.
Until then, we're at the mercy of the courts - hoping that they revisit the concepts involved in light of historical case law and police abuses.
Civil forfeiture is another one, though I think Congress has a strong case for regulating that under the fourth amendment, though it shouldn't be necessary [1] - the fourth amendment is pretty clear about due process for seizures. It's just that somehow everyone just ignores it.
Because it's not a wedge issue that can be used to demonize the other guy, so no one really cares.
Many in Congress these days are afraid to even give the appearance of working across the isle, because it'll surely be used against them by an opponent in a primary.
Satire is the heart of the first amendment because by it's very nature it's political speech. Satire takes a very serious issue and makes it funny in a way that people think more about the issue.
Nevertheless, this seems to be less about rights guaranteed by the first amendment and more about whether or not a violation of those rights can be brought to court. It seems like the answer to this is no, which to me, is contradictory.
I’m not sure I understand the distinction you’re trying to make.
1A is about protecting speech from the overwhelming power of the government to abridge it. Police arresting someone for speech is precisely that. If a violation cannot be brought to court then 1A isn’t a thing. What is a right if it cannot be enforced?
Sounds like you are agreeing with GP? I believe GP was claiming that the court's position is there is a right to free speech, but not an ability to defend one's right to free speech in court (at least in this case), which renders the right to free speech meaningless, so the court's position is contradictory.
So, leaving aside the legal case ruling or lack thereof.
Is this a precedent where the Streisand Effect fails? The police can arrest one person and have the offending material removed and the internet does nothing?
I am absolutely expecting a parody page of the police unit in question bragging how they can now police the internet.
If you think of the police as the executive arm of the judiciary, then you can understand why they would want to give them immunity from accountability for their actions. The courts have ruled that the police are no responsibility to protect the public which only leaves their ability to enforce some laws as their responsibility.
Qualified immunity dates back about 60 years as far as I can tell and is a complete creation solely of the courts.
People should stop treating California as the bastion of the Democrats, since it really isn't. There are 49 other states, many of them blue, that have none of the problems california has. California has been a state that struggles to govern for it's people since it was first created. It was a conservative stronghold for decades, and was no better under republicans. It seems more like there's something in the water, or rather that californian corporate interests have always been above the people there.
Conservatives scream about california because it's a useful red herring. California's stupidity is not limited to democrats, but conservatives really like to push that california is bad BECAUSE of democrats, the classic correlation causation thing.
Democrats often try to play the same dumb game with Texas, and that should be similarly rejected.
This issue doesn't really fall along conservative/liberal lines.
Also, why is devnulll's post that just says: "Qualified Immunity could be easily fixed by law. That congress has been unwilling to pass such a law tells you that both sides support." flagged?
That doesn't seem flag worthy.
Edit: Seems people either vouched it, or removed their flags. It no longer shows as flagged.
Small government, applied to policing, bears the slogan "defund the police." "Small government," with a blind spot for policing, is also known as authoritarianism.
Dichotomizing it is clearly not intellectually honest. To imply that there is ideological motivation for either 'faction' that you so subtly mention is a red herring.
Edit: a red herring that people apparently find to be delicious. How the hell do you even downvote on this site?
You're right, that was a little glib. "Defund the police" is almost never a move towards small government; the proposal typically goes hand in hand with massive investment in social services that would be geared at reducing criminality.
I make no apologies for pointing at the Thin Blue Line movement and its supporters and calling that bald-faced authoritarianism.
edit: since you're new here, you might not know that complaining about downvotes is frowned upon. If you earn enough karma, you'll gain the ability to express your own disagreement through downvotes. One generally avoids collecting downvotes by making arguments in good faith.
It doesn't matter how good police oversight is if the training sucks. No department is gonna fire all their officers. See: Tyre Nichols officers, that police department lowered hiring standards to make even prior felonies wavierable a year or two prior to that incident (because no one wants to be a cop due to the bad pr).
Social services have gigantic waste, bureaucratic rule problems and for many social services jobs the real training is outside of the governments purview (degrees). So the issues with personnel quality aren't as easily correctible by better training like for police (though it still plays a part).
I couldn't see it in the article but was there a stated reason for the search his apartment? What were they looking for specifically?
I'm not that familiar with US law but in the UK you have to have a reason for a search warrant and can't use anything found for unrelated crimes.
Is it legal in the US to have a generic search warrant and just turn someone's apartment over looking for evidence of any crime? That seems like it would be open to abuse if so.
Could anyone put this in layman's terms?
(Actually if you could simplify it as if you were explaining it to your dog that would be even better. :P )
Respectfully, I don't think your core claim is true.
The UK will usually only exclude evidence if it is not reliable. Illegally or Unlawfully obtained evidence is almost always admissible. This is one of the key differences between the UK and US legal systems. Even getting search warrants ruled unlawful does not make evidence gathered from such a warrant inadmissible.
You may be able to get evidence excluded IF you can show it is unreliable. But not being legally obtained is almost never relevant...
>A breach of rules in the criminal proceedings against a person under investigation is treated as irrelevant to the question of whether the evidence will be admissible. Automatic exclusion of evidence illegally or improperly obtained has never been adopted by the English courts.
(later)
>It can matter in English law how evidence is obtained. Although the general rule is that any relevant evidence is admissible regardless of how it was obtained, section 76 of PACE highlights how the way confessions are gained can affect the admissibility of the evidence. Furthermore, although section 78 provides discretionary powers relating to evidence being inadmissible if it would be averse to fairness, the House of Lords have accepted in A that some illegally obtained evidence cannot be used if it breaches Article 3.
Interestingly the law has a specific section saying you cannot use confessions from torture (one of the few explicitly inadmissible sources of evidence). BUT if someone confesses under torture you CAN use any facts they reveal as part of the confession. I think that gives some flavour for the UK's approach to limits on police powers.
> in the UK you can't use anything found for unrelated crimes.
So when the police in UK searches your apartment for computers because you insulted someone on twitter and an officer breaks their ankle while tripping over one of the skeletons in the living room you're not going down for murder?
I don’t see how qualified immunity allows cops to void a person’s first amendment right to free speech. I will have to read this in more detail to see what the heck is going on.
Qualified immunity means that police officers violating someone's first ammendment rights can not be sued for that violation. The police department may still be liable, but not the individual officers. A state or federal prosecutor may be able to pursue criminal actions against the officers, but they usually choose not to.
The Supreme Kangaroo Court has been a farce ever since it voted 5-4 to halt the Florida vote count in the 2000 election on partisan political grounds. The justices appointed by GW Bush aren't even qualified as their appointer was selected by a conservative court majority that violated every conservative court view on state's rights in history.
The American political and judicial system has become little more than a bad joke, worthy of nothing more than contempt and ridicule. The only certainty is that it will always come down on the side of monopolistic corporate entities, and of their armed goons.
I bet we won’t hear from conservative talking heads on Fox News about this, which is an actual free speech issue, as much as we hear about Jordan Peterson being suspended from Twitter for dead naming trans people, which is not an actual free speech issue
That's is? That's all it takes? You don't have to provide any evidence for said belief corroborating your "feelings" of genuineness? All you have to do is "believe" something was going on, and you've got immunity from prosecution?
"Why did you confiscate this man's money?" "Your honour, I genuinely believed it was fake money." "Was it fake?" "No, but I genuinely believed it." "Ah ok then, you may keep the moneyh. Dismissed".