Free Republic
Browse · Search
General/Chat
Topics · Post Article

In light of the recent actions of some in government and law enforcement, this could be a very interesting topic if the Supreme Court does choose to proceed.
1 posted on 05/11/2020 12:29:52 PM PDT by voicereason
[ Post Reply | Private Reply | View Replies ]


To: voicereason

Some states officials are abusing their authority


2 posted on 05/11/2020 12:33:54 PM PDT by vigilante2 (Make liberals cry again)
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

Later


3 posted on 05/11/2020 12:36:39 PM PDT by Gay State Conservative (The Rats Just Can't Get Over The Fact That They Lost A Rigged Election!)
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

Double edged sword....tons of lefty lawers out there with chips on thier shoulder.


6 posted on 05/11/2020 12:45:30 PM PDT by Crim (Palin / West '16)
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason
rennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.”

WTF?

8 posted on 05/11/2020 12:51:15 PM PDT by SmokingJoe
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

‘Officials’ should be held to the highest standards in the land. They are being given public trust (although these days none of us trust them) and should be held accountable for all that they do.


9 posted on 05/11/2020 12:56:50 PM PDT by neverevergiveup
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason
This can be good. Let's see the Supreme Court reconsider absolute immunity for prosecutors.
10 posted on 05/11/2020 12:58:03 PM PDT by marktwain (President Trump and his supporters are the Resistance. His opponents are the Reactionaries.)
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

This will be interesting if they do actually grant Cert. This is one of those areas of Constitutional law that Justice Thomas seems to have a bit of a blinder on. He’s long been in see-no-evil mode regarding this and other similar issues.


12 posted on 05/11/2020 1:21:53 PM PDT by zeugma (Stop deluding yourself that America is still a free country.)
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason
Corbitt v. Vickers. This is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.

Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.”

Mason v. Faul. In this case, the Fifth Circuit granted immunity to a police officer who shot a man seven times in response to a 911 call. This is one of the rare cases in which qualified immunity was actually resolved at trial, rather than at the motion-to-dismiss or summary-judgment stage. At trial, the jury found that while Officer Faul’s shooting of Quamaine Mason was objectively unreasonable under the Fourth Amendment, Faul was nevertheless entitled to qualified immunity.

Hunter v. Cole. Of all the qualified immunity cases going to conference on May 15th, this is one of only two in which the lower court denied immunity to the defendants. In this case, the Fifth Circuit denied immunity to an officer who shot a 17-year-old boy without warning. Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot.

In my not so humble opinion, all of the above are serious 'WTF?' cases. Only the last one appears to have been appropriately decided.

13 posted on 05/11/2020 1:29:53 PM PDT by zeugma (Stop deluding yourself that America is still a free country.)
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

Instead of qualified immunity officials should potentially face more severe penalties for especially grievous unlawful actions.


14 posted on 05/11/2020 1:44:07 PM PDT by captain_dave
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason
For the last several years, Cato has been leading the campaign to abolish qualified immunity — an atextual, ahistorical judicial doctrine that shields state officials from liability, even when they violate people’s constitutional rights.

That is utter nonsense. Qualified immunity does not shield state officials who violate constitutional rights.

qualified immunity. (1877) Immunity from civil liability for a public official who is performing a discretionary function, as long as the conduct does not violate clearly established constitutional or statutory rights. — Also termed prima facie privilege. Cf. absolute immunity.

Black's Law Dictionary, 11th Ed.

A claim of qualified immunity fails if it is not within the scope of employment, or it violates clearly established constitutional or statutory rights.

At to look at one case in the article:

Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.

Petition for Cert:

QUESTION PRESENTED

Whether it is clearly established that the Fourth Amendment prohibits police officers from stealing property listed in a search warrant.

That is the only question presented by the Petition. Also from the Petition:

It effects a permanent dispossession of property for no law enforcement purpose whatsoever. U.S. Const. amend. IV. And the theft of property listed in a search warrant is especially “unreasona-ble.” It misappropriates property to which the government is entitled, impairs rather than aids the warrant’s execution, and replicates one of the very abuses that the Fourth Amendment was adopted to prevent.

This underscores the problem with the constitutional argument. The alleged misappropriation is from the Government. The instant the property was seized pursuant to a lawful warrant, it became Government property. Assuming arguendo there was a theft, stealing property from the Government would not violate the constitutional rights of the Plaintiff.

Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.

This states, as though it were proven fact, that the police officers stole over $225,000. That is not at all a proven fact. Moreover, assuming they did commit a theft after seizing assets incident to a lawful search and seizure conducted pursuant to a warrant, it would be a common crime, and not a violation of constitutional rights of Plaintiff. The lawsuit seeks damages for violation of constitutional rights, not prosecution of an alleged crime.

In the Jessup v City of Fresno, S Ct 19-1021, Brief in Opposition to Petition for Certiorari (10 Apr 2020)

2.0 Argument

2.1 No Theft Took Place.

The petitioners’ arguments (and those of the amici curiae who have sought leave to file briefs supporting the petition) all assume that the defendant officers in-deed stole petitioners’ property. The respondent City and officers emphasize that they do not concede this point. Respondents categorically deny that they stole petitioners’ property. (2ER:271; 3ER:486, 489; see Answering Brief, 9th Cir. Dkt. # 17, 90-92.) The record is replete with evidence indicating that the petitioners’ theft accusations are flimsy. For instance, petitioners allegedly discovered currency and coins were missing in September 2013. (2ER:164-165, 232.) At that time, they had legal representation. (2ER:221-222.) Yet they did not file suit until February 2015—after respondent officer Derik Kumagai was arrested for an unrelated incident. (2ER:37; 3ER:522.) The petitioners’ accusations that the amount of money the officers seized exceeded the amount disclosed as seized stem primarily from petitioner Jessop’s after-the-fact reconstruction of the amount of currency he believes was in his car when the officers searched it. (2ER:207-209.) Jessop contends that a coin collection he kept in a plastic tub—unappraised and uninsured—consisted of solid gold coins, and was worth six figures. (2ER:216-218.) He based his valuation on a list of coins he recreated from memory, a piece of paper containing some of the items, and an Internet search. (2ER:217-218.) This issue is ultimately immaterial to qualified immunity. As the Ninth Circuit ruled, even if petitioners’ accusations are credited for the purpose of argument, the respondent officers are entitled to qualified immunity. Pet. App. 8a-10a. But the issue matters to respondents. No argument they make should be taken as a concession that petitioners’ accusations have merit.

From the Opinion of the 9th Circuit Court, M. Smith, Circuit Judge:

We need not—and do not—decide whether the City Officers violated the Constitution. At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant. For that reason, the City Officers are entitled to qualified immunity. . . .

ANALYSIS

“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In determining whether an officer is entitled to qualified immunity, we consider (1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014).

We have never before addressed whether the theft of property covered by the terms of a search warrant and seized pursuant to that warrant violates the Fourth Amendment. At the time of the incident, the five circuits that had addressed that question, or the similar question of whether the government’s refusal to return lawfully seized property violates the Fourth Amendment, had reached different results. Compare Case v. Eslinger, 555 F.3d 1317, 1330 (11th Cir. 2009), /i>Lee v. City of Chicago, 330 F.3d 456, 460–66 (7th Cir. 2003), Fox v. Van Oosterum, 176 F.3d 342, 349–51 (6th Cir. 1999), and United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir. 1992), with Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004). . . .

The allegation of any theft by police officers—most certainly the theft of over $225,000—is undoubtedly deeply disturbing. Whether that conduct violates the Fourth Amendment’s prohibition on unreasonable searches and seizures, however, is not obvious. The split in authority on the issue leads us to conclude so. See Wilson, 526 U.S. at 618 (where “judges [] disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy”).

In the absence of binding authority or a consensus of persuasive authority on the issue, Appellants have failed to demonstrate that it was clearly established that the City Officers’ alleged conduct violated the Fourth Amendment. Accordingly, we hold that the City Officers are protected by qualified immunity against Appellants’ Fourth Amendment claim. . . .

II. Fourteenth Amendment

Appellants’ Fourteenth Amendment claim suffers the same fate. Appellants argue that the City Officers’ theft of their property violated their substantive due process rights under the Fourteenth Amendment. Assuming that to be true, however, the City Officers are entitled to qualified immunity because that right was not clearly established. We have not held that officers violate the substantive due process clause of the Fourteenth Amendment when they steal property that is seized pursuant to a warrant. The Seventh Circuit is the only circuit that has addressed the related question of whether the government’s refusal to return lawfully seized property to its owner violates the Fourteenth Amendment; it held that the substantive due process clause does not provide relief against such conduct. See Lee, 330 F.3d at 466–68. Because the City Officers could not have known that their actions violated the Fourteenth Amendment’s substantive due process clause, they are entitled to qualified immunity against Appellants’ Fourteenth Amendment claim.


15 posted on 05/11/2020 2:07:22 PM PDT by woodpusher
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

West v. Winfield. In this case, the Ninth Circuit granted immunity to police officers who bombarded an innocent woman’s home with tear-gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted.


17 posted on 05/11/2020 2:23:03 PM PDT by eyeamok
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

Interesting. I’ll be keeping an eye out for more coverage of this topic next week.


18 posted on 05/11/2020 2:33:22 PM PDT by Tax-chick (You can't buy happiness, but you can buy books! (Washington County, UT, Library))
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

Doubt it will happen. Some of the conservative justices on the Court display little interest in curbing abuses in this area and leftist Kagan is currently in a phase of pretending to seriously care about stare decisis, even on causes the left cares about, because she’s trying to convince some of the weak conservatives (e.g. Roberts) to keep Roe v. Wade around.


19 posted on 05/11/2020 2:40:13 PM PDT by Stravinsky
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

the elimination of qualified immunity would be the greatest blow for liberty in over 100 years.


20 posted on 05/11/2020 3:13:30 PM PDT by Mariner (War Criminal #18)
[ Post Reply | Private Reply | To 1 | View Replies ]

To: voicereason

When citizens are not offered legal remedies to government abuses, they will find revolutionary means to correct government abuses.

The goodwill toward government is running pretty damn low. 


21 posted on 05/11/2020 3:37:14 PM PDT by sergeantdave (Teach a man to fish and he'll steal your gear and sell it)
[ Post Reply | Private Reply | To 1 | View Replies ]

Free Republic
Browse · Search
General/Chat
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson