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The Problem With [Qualified Immunity]

This last week we got one of the most ridiculous legal opinions using qualified immunity in a legal case, as reported by USA Today editor Brad Heath:



Yes, you read that right - because the Fourth Amendment doesn't explicitly say that cops stealing private property during a search is wrong, the cops doing so are protected under qualified immunity from being sued to recover the stolen property. This is yet another insane expansion of the principle of qualified immunity - a legal concept meant to protect government workers that has been so expanded that it shelters all sorts of malfeasance.

Qualified immunity has always been problematic, and it's origins questionable, as this explainer cartoon shows. A large part of problem lies in the wording of the Federal law used to sue in the first place - because it says that the right has to be "clearly established", if an argument can be made that it isn't, then the court can rule that the requirements have not been met - thus the birth of "qualified immunity". The problem is that courts have taken to define "clearly established" with a lot of flexibility, with what makes "clearly defined" getting defined very liberally at times. A solid argument can be made that the whole argument for qualified immunity falls apart on examination, and that the courts should get rid of it - and opinions like the one at the start serve to illustrate how badly defined qualified immunity is.

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  • something a million times dumbersomething a million times dumber JUDGE BROSEF Registered User regular
    the notion that theft during the course of a warranted home search needs special legislation is perverse

    stealing is illegal! that's already true!

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  • AngelHedgieAngelHedgie Registered User regular
    edited September 2019
    Shorty wrote: »
    the notion that theft during the course of a warranted home search needs special legislation is perverse

    stealing is illegal! that's already true!

    Oh no. The argument is that "the right to not be stolen from by cops executing a search warrant is not 'clearly defined', so qualified immunity holds."

    It is exactly as goosey as you think.

    Edit: This opinion is as "angels dancing on pinheads" as it gets.

    AngelHedgie on
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  • something a million times dumbersomething a million times dumber JUDGE BROSEF Registered User regular
    followup question, did the officers who committed that obvious crime at least, you know, return the shit they stole

  • override367override367 ALL minions Registered User regular
    Sounds like cops just got the greenlight to pocket anything they see while executing search warrants

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  • BrainleechBrainleech 機知に富んだコメントはここにあります Registered User regular
    Sounds like cops just got the greenlight to pocket anything they see while executing search warrants

    Well the gravy faucet of civil forfeiture was made illegal and frowned upon but you know they were going to find a way to bring it back

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  • Local H JayLocal H Jay Registered User regular
    Tbh if a cop needs to be told that's its a bad idea to take money/anything that isn't theirs, they probably shouldn't have been a fucking cop in the first place

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  • JuliusJulius Registered User regular
    Sounds like cops just got the greenlight to pocket anything they see while executing search warrants

    eh from what I understand the argument is that it wasn't clearly established as against the law then but is now. But that still means anything else clearly fucked up can still be done for the time being.

  • DevoutlyApatheticDevoutlyApathetic Registered User regular
    Tbh if a cop needs to be told that's its a bad idea to take money/anything that isn't theirs, they probably shouldn't have been a fucking cop in the first place

    Yeah but this applies to like 50% of cops in the first place. It is one of those jobs that if you want it, you really should not have it.

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  • Local H JayLocal H Jay Registered User regular
    Tbh if a cop needs to be told that's its a bad idea to take money/anything that isn't theirs, they probably shouldn't have been a fucking cop in the first place

    Yeah but this applies to like 50% of cops in the first place. It is one of those jobs that if you want it, you really should not have it.

    I know that's true, it just baffles me there isn't oversight for these types of things.

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  • Shazkar ShadowstormShazkar Shadowstorm Registered User regular
    Fyi if you want info on this stuff through standard political comedy formats, Patriot Act did a segment this week (came out Sunday) that covers this and some other related things about police accountability (lack thereof)

    poo
  • MrMisterMrMister Jesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered User regular
    edited September 2019
    Shorty wrote: »
    the notion that theft during the course of a warranted home search needs special legislation is perverse

    stealing is illegal! that's already true!

    As far as I can tell, nothing in the ruling contradicts that (it's about 15 pages long and not a super dense read). The ruling is not about whether police stealing property is against the law. It's about whether it was, at the time, clearly established law that stealing property after had it been confiscated with a duly obtained warrant is specifically a violation of the 4th or 14th Amendment. Things can be illegal without violating constitutional rights. But whether the theft violated his constitutional rights is what the plaintiff's case rested on, because he was suing for redress under a section of the US code that gives people a cause of action when their constitutional rights are abridged. The reason it did not count as "clearly established" that his constitutional rights had been abridged even under the supposition that the police stole a bunch of his shit from evidence is because the courts are not in full agreement about / have not settled whether protections against unreasonable search and seizure apply not just to the original act of search and seizure--which was legally authorized in this case--but to how the property is treated on an ongoing basis afterward, e.g. whether you have 4th and 14th Amendment rights to speedy recovery or or a reasonable process or w/e for reclaiming something that was initially taken from you in a fully legitimate way.

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  • JuliusJulius Registered User regular
    MrMister wrote: »
    Shorty wrote: »
    the notion that theft during the course of a warranted home search needs special legislation is perverse

    stealing is illegal! that's already true!

    As far as I can tell, nothing in the ruling contradicts that (it's about 15 pages long and not a super dense read). The ruling is not about whether police stealing property is against the law. It's about whether it was, at the time, clearly established law that stealing property after had it been confiscated with a duly obtained warrant is specifically a violation of the 4th or 14th Amendment. Things can be illegal without violating constitutional rights. But whether the theft violated his constitutional rights is what the plaintiff's case rested on, because he was suing for redress under a section of the US code that gives people a cause of action when their constitutional rights are abridged. The reason it did not count as "clearly established" that his constitutional rights had been abridged even under the supposition that the police stole a bunch of his shit from evidence is because the courts are not in full agreement about / have not settled whether protections against unreasonable search and seizure apply not just to the original act of search and seizure--which was legally authorized in this case--but to how the property is treated on an ongoing basis afterward, e.g. whether you have 4th and 14th Amendment rights to speedy recovery or or a reasonable process or w/e for reclaiming something that was initially taken from you in a fully legitimate way.

    They didn't steal from evidence though. The officers claim they only seized 50k, meaning the rest was never logged in the first place.

    Essentially, they seem to be saying that because whatever they allegedly stole would have fallen under their warrant, they didn't violate any rights.

    MrMister
  • DarkPrimusDarkPrimus Registered User regular
    "I'm sorry officer, I didn't know that was illegal."
    "That's perfectly fine, officer, we'll just let it slide with a verbal warning."

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  • MrMisterMrMister Jesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered User regular
    Julius wrote: »
    MrMister wrote: »
    Shorty wrote: »
    the notion that theft during the course of a warranted home search needs special legislation is perverse

    stealing is illegal! that's already true!

    As far as I can tell, nothing in the ruling contradicts that (it's about 15 pages long and not a super dense read). The ruling is not about whether police stealing property is against the law. It's about whether it was, at the time, clearly established law that stealing property after had it been confiscated with a duly obtained warrant is specifically a violation of the 4th or 14th Amendment. Things can be illegal without violating constitutional rights. But whether the theft violated his constitutional rights is what the plaintiff's case rested on, because he was suing for redress under a section of the US code that gives people a cause of action when their constitutional rights are abridged. The reason it did not count as "clearly established" that his constitutional rights had been abridged even under the supposition that the police stole a bunch of his shit from evidence is because the courts are not in full agreement about / have not settled whether protections against unreasonable search and seizure apply not just to the original act of search and seizure--which was legally authorized in this case--but to how the property is treated on an ongoing basis afterward, e.g. whether you have 4th and 14th Amendment rights to speedy recovery or or a reasonable process or w/e for reclaiming something that was initially taken from you in a fully legitimate way.

    They didn't steal from evidence though. The officers claim they only seized 50k, meaning the rest was never logged in the first place.

    Essentially, they seem to be saying that because whatever they allegedly stole would have fallen under their warrant, they didn't violate any rights.

    This part was not factually clear to me, skimming the opinion--idk how police procedure works (or when the "receipt" or whatever is generated)

    Julius
  • ZibblsnrtZibblsnrt Registered User regular
    Tbh if a cop needs to be told that's its a bad idea to take money/anything that isn't theirs, they probably shouldn't have been a fucking cop in the first place

    Yeah but this applies to like 50% of cops in the first place. It is one of those jobs that if you want it, you really should not have it.

    I know that's true, it just baffles me there isn't oversight for these types of things.

    Remember, any independent police oversight is automatically Soft On Crime.

  • HevachHevach Registered User regular
    Shorty wrote: »
    followup question, did the officers who committed that obvious crime at least, you know, return the shit they stole

    What's the old joke? Cops recovered $200,000. All $120,000 was checked into evidence. When it was found to be an error, all $45,000 was removed from evidence, and all $25,000 was returned to it's rightful owner.

    Serious answer: looks like no, this lawsuit was to get it back and the cops won.

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