National When cops and America’s cherished gun rights collide, cops win

bbbass

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Thanks. I agree wholeheartedly with you that officers are human and I agree about honest mistakes but in questionable cases how do you ascertain what is deliberate unlawful conduct, gross negligence, negligence, or "honest mistakes"? "Qualified immunity" is a civil doctrine not a criminal doctrine so were talking about civil trial to determine if an officer is or isn't civilly liable for killing someone.

The Founders never wrote qualified immunity into the Constitution. No Congress or President ever signed a law creating qualified immunity. It's a wholly judge-created doctrine that the Republic seemed to do fine without before 1967.

One could argue that times have changed and now we need qualified immunity. I would say it's fair to argue that but under our Constitution it's something for Congress to put into the laws and for a President to sign (or not) into law.
How do YOU acertain, you ask... IMO YOU don't, you leave it up to the people in charge of those efforts. Problem being that public trust has been completely shattered. We need to hire good individuals in positions of authority, and then let them do their jobs!!! We DON"T need to take LEOs to court to determine if they should individually pay out of their own pockets. That, tort law, is for people that are not public employees. To be sure, I object to the concept of holding officers individually financially responsible. So we have a conceptual and fundamental disagreement that IMO is prohibitive to an exchange of ideas at the most basic level.

Deliberate unlawful conduct is to be investigated by Internal Affairs and whatever investigator the DA has at hand. Gross negligence, negligence, and "honest mistakes" can be determined by the same, but why hold the officer personally responsible in a civil trial? Do we hold ALL our public employees civilly liable? I think not. Then why are officers to be treated differently?

If we go back to the argument of THEM being treated or under the same rules as US, an argument I find fraught with the logical fallacy argument of false equivalency, I want to think about my opinion of Manslaughter, Negligent Manslaughter, Negligent Homicide, etc on the criminal side, and civil suits against people at large. IMO, much of the attempts to "make them pay" for what they did are misplaced and misguided. It both pains me to see a husband facing butt rape, Aryan Brotherhood, MS-13, for lil Johnny getting his gun and shooting lil Susie, as it does the loss of life savings, home, etc for an accidental shooting of a neighbor child. Accidents happen... why does the public feel a need to add on layers of lifelong punishment to the loss of a child? I will never get it.

If we want to argue that if it's not in the Constitution, it's prohibited, that argument could be made. We do have delineated powers of the Federal Govt and all other powers revert to the states. So there is nothing that says that each jurisdiction cannot establish such doctrine... and further, doesn't the SCOTUS typically rule regarding issues in individual states rather than on a national basis? Exceptions being rulings like Roe vs Wade (where is a woman's right to choose to murder her unborn child in the Constitution?), and Roberts siding with the left to determine that rather than forcing citizens to purchase insurance they don't want, O'bummer care is just a tax. Point being that we live with a lot of judicial over-reach. Let's not be hypocritical by picking and choosing which over-reach we can live with or approve. (Not saying you are, but just a general thought.)

To recap, I'm not in favor of LEOs being held personally liable in civil court, rather their depts or govt should. If such a doctrine does not legally exist, we need to determine a way to make it happen. If we the taxpayers are/were on the hook for civil awards, we might be a little more willing to stop armchair or monday morning quarterbacking our LE servants and have some faith in the investigators we also hire, or those appointed, to hold officers responsible.

Lastly, to those that say things need to change, I encourage you to get in there and do it! IMO this country suffers from a lack of good, honest citizens willing to take the time to get involved in govt, or to work from within the system.... don't like police attitudes, hire on as LEO and influence fellow officers, rise up the chain of command and exert your own control over how things are done. Too old, you say? Run for office!! Police Commissioner, City Council, Mayor, all exert influence over policy. BE THE CHANGE YOU WANT TO SEE!!!!!

P.S. Vengeance is something the anti-gunners are getting very good at... don't be like the anti-gunner. Yes, officer's need to be held responsible, but there are ways to do that without salivating over exacting a pound of flesh.
 
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WillametteWill

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Your hypotheticals above are wrong. Drivers have given their implied consent to be field tested or to have and their blood, breath, or urine tested if the police officer reasonably suspects that the person has committed the offense of driving while under the influence of intoxicants (ORS § 813.095 et seq.) If you refuse to submit to field or breath testing for intoxicants you can still be and most likely will be arrested for DWI and your refusal to be tested can be used as evidence that you were DWI (ORS § 813.136). This is basically the law in every US state. The rest of your hypothetical that "everyone goes to jail", false arrest suits, cops hiding, etc. is just slippery slope nonsense with no evidence.
Respectfully, you cannot quote an ORS section the proves you are wrong and say you are right. 813.095 is essentially a civil act saying your driver's license gets taken away (a privilege, not a right). As for the chemical test, it is required (still allowed for DL civil actions) after an ARREST, " A test shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested..". (Emphasis added) You have to refer to section 813.100 to see that "arrest" is required.

Section 813.136 allows again for the civil act of suspending a driver license and then codifies the standing principle of "consciousness of guilt", it is not a crime in and of itself as it would be a clear violation of the 5th Amendment.

My hypothetical is exactly why qualified immunity exists. I've discussed it with numerous attorneys over the years since it is a question asked by many officers that I have the opportunity to teach. Some slopes are actually slippery! Example is easy to see, self initiated activity after the LA riots went down drastically since officers did not want to be in trouble for anything, same after the Ferguson shooting, known as the Ferguson Effect. I've seen this first hand from working in the SoCal area during / post Rodney King.
 

WillametteWill

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If there had been a trial there would have been, among other things, an opportunity to call, examine, and cross-examine witnesses, including the other three LE who were there but did not fire. The four dissenting 11th C.C.A. judges pointed to several alleged discrepancies in Deputy Sylvester's testimony. You might find their dissent interesting. It's too long for me to cut-and-paste in my reply but it starts at page 33 here (PDF). If you decide to read it then I recommend reading the footnotes, too.
Sincerely thank you for posting the link to appeal document. Massive credit to you for digging into the details of cases like this. It is important to review as detailed information as we can get. (Unfortunately most "news" outlets and "reporters" do not do this.)

After reading the 65 pages, I believe the majority lays out the fundamentals of why they believe qualified immunity should be applied. After reading the dissent it appears they hate cops. Here are some gems:
"The concurrence tries to have it both ways: for the excessive-force violations, it says the officers had every reason to think there was an armed and dangerous criminal in Apartment 114. Then for the knock and talk violation, it says the officers were just there for a friendly talk with people who “were not suspects.” Conc. Op. at 7. Which is it?" (It's both...because at 1:30am under the circumstances, either are possible, as is the assault suspect is doing something bad to the innocent parties inside the residence)
"The combination of police tactics used here is egregious." (Nope, they were pretty standard under the circumstances.)
And finally this:​
"As I’ve described, there was no talk here. This was a knock and shoot." (The officer was a human, who was forced to make a split second decision that cost someone who did not deserve to die, their life. He has to live with that the rest of his life. This statement is callous and despicable for someone sitting on the bench.)

The dissenting opinion considers knocking on the door at 1:30am, where the lights are on, where the officers are not forcing entry...a "raid".

The majority lays out the "reasonable person" doctrine well. They viewed the case in light most favorable to the plaintiff, even though many of these facts were disputed by the officers. From page 12 - 14 the majority spells out the objective information used in determining. These seem to be ignored by the dissent or spun in uninformed ways.

But here is why qualified immunity exists. Let's take the dissent view and the officers had no reason to "raid" the dwelling by simply knocking on the door. They leave. Turns out that it was the motorcycle from the pursuit and the prior assault. He saw the light on, managed to get the occupants to open the door so he could hide from police. Now bad things happen inside the home to the couple. They would likely be suing because the police didn't take action. The judges who dissent on the current ruling would probably (based on their contempt for law enforcement) find that the officer should have taken more action.

Can't win.

This event was horrible. That officer did not show up at work that night hoping to shoot Mr. Scott. Mr. Scott likely had no ill will toward the officers. But these are the things that happen at 1:30am, when you are sincerely trying to protect the public with the best information, tactics and support you have available. Keep in mind that qualified immunity is not absolute (like it is for prosecutors I believe, think they have absolute immunity even when they recklessly overcharge an armed citizen in a DGU case). And I'll also agree that I've seen some cases where immunity should not be applied using the standard, "protect[ing] all but the plainly incompetent or those who knowingly violate the law." (Page #19 of document)
 

ma96782

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I'd go with.....
Maybe/Sometimes/Often (or whatever other qualifier).....

You just can't win.

Rrrrrright....
Some here are very critical and like to Monday morning quarterback the decision(s) made. That's fine. It's a FREE COUNTRY. 1st A and all that.

There are things that we can agree upon and things that we can't.

So NOW.....
Do you think that you could do better?

Hummmm.....
OK then.....
Get yourself down to the local City Hall or Civil Service Office and sign up. And, "Good Luck".

Aloha, Mark

PS......I sometimes have to remind myself. Don't HATE on the lawyers. They are not that different from the "ladies" that one sees walking the streets at night. Only, one gets paid better.

Remove qualified immunity and that's another big potential source of revenue. jackie-chiles.jpg "I'm listening..."
 
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Did you watch the video I was talking about? If you just want all cops to be the devil, shrug, no reaching you. If that is not the case you should try watching the video I was talking about. The guy died of terminal stupidity.
LEO's come knocking on your door and you charge out pistol in hand? You are begging to get shot. Of course those who never would be able to get the job the LEO's do will often love to say they know far better. :s0092:
Again no reaching those who think that way.

Cops go to wrong house...

Man steps out armed to investigate the commotion....

Cops kill man....

Man is the "stupid one"

LOL.

Qualified immunity should protect people from split second decisions under stress, not the ability to correctly read an address in a case like this then chuckle and claim qualified immunity after they shoot the guy who was well within his right....
 

ma96782

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LOL.

Qualified immunity should protect people from split second decisions under stress, not the ability to correctly read an address in a case like this then chuckle and claim qualified immunity after they shoot the guy who was well within his right....
Who said that the cop(s)........chuckle.......after/about killing innocent people?

IMHO.....your bias is showing.

Aloha, Mark

PS....for the record....many people have come to my house and it was the wrong house. And, my address is clearly displayed at the beginning of the walkway to my door. Bottom line: YES, mistakes can happen.

So, really.....do you think that the cop is or was looking for an excuse to shoot that guy?
 
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Cops go to wrong house...

Man steps out armed to investigate the commotion....

Cops kill man....

Man is the "stupid one"

LOL.

Qualified immunity should protect people from split second decisions under stress, not the ability to correctly read an address in a case like this then chuckle and claim qualified immunity after they shoot the guy who was well within his right....
So you watched the video I was talking about and that is your take away? OK, you made my point :s0092:
 
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I have nothing but praise for civil servants who actually take their jobs seriously and fix things that need fixing
As we all know, the problem is who gets to decide what "needs fixing"? Too many things being "fixed" that don't need fixing.

Disagree, since I'm not bloody likely to EVER get shot by any kind of local popo, but a public employee can take my house, my car, my grandkids, raise my tax so much that it soaks up all my savings, send me to prison for having a brace on my shortie, keep me from visiting my wife in the nursing home or visiting friends or going to church, make me wear a mask, make me lock up my firearms when they are not on my person, make me get a permit and pay a fee to install a lawn sprinkler system or to build a garden shed or remodel my bath/kitchen, limit my ammo purchases, tax my ammo, tax my mileage, tell me when and where and how much to pay to hunt or fish and price said licenses out of my reach, force me to share my home with indigents, start wars with nuclear armed countries, and on and on, ad nauseum. Bloody high-minded civic azzholes!!!!!!!
Very true. Public employees are destroying the nation with business-choking regulations. I'd be afraid to start a business today, or to hire employees, or to operate a business for fear of violating one of the tens of thousands of unknown, idiotic regulations. The regulations add what, $30,000 in building permit costs to build a home, before one nail is driven! Then public schools are indoctrinating generations of Americans to believe communism/socialism is better than capitalism.
 
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RedCardinalSeven

RedCardinalSeven

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How do YOU acertain, you ask... IMO YOU don't, you leave it up to the people in charge of those efforts.
Fair point. However, some of the people in charge of those efforts--judges and juries--often don't get to ascertain what happened when a case is tossed because of "qualfied immunity".

Problem being that public trust has been completely shattered. We need to hire good individuals in positions of authority, and then let them do their jobs!!!
Agreed but not every "good" person will actually be "good" or stay that way and sometimes "good" people do the wrong thing for the wrong reason or out of negligence. In such cases, they should be held accountable.

We DON"T need to take LEOs to court to determine if they should individually pay out of their own pockets. That, tort law, is for people that are not public employees.
It's not only tort law. For example, 42 U.S. Code § 1983 is a federal statute that's been on the books since 1871 and applies to public employees and private citizens alike.

Deliberate unlawful conduct is to be investigated by Internal Affairs and whatever investigator the DA has at hand.
It has never been the case that in America law enforcement gets the final say in investigating alleged misconduct of law enforcement. God help us all if that that ever changes.

Gross negligence, negligence, and "honest mistakes" can be determined by the same, but why hold the officer personally responsible in a civil trial? Do we hold ALL our public employees civilly liable? I think not. Then why are officers to be treated differently?
I don't think LEO's should be treated differently. Qualified immunity should not apply to any public official.

... Accidents happen... why does the public feel a need to add on layers of lifelong punishment to the loss of a child? I will never get it.
Yep, accidents do happen so does deliberate misconduct, gross negligence, and negligence. I've never argued that genuine faultless mistakes made in good faith should be punished; they shouldn't. My main objection to qualified immunity is that, in too many cases, it wrongly short circuits a full and proper inquiry into the nature of the act.

If we want to argue that if it's not in the Constitution, it's prohibited, that argument could be made.
It's not even in the federal statutes.

We do have delineated powers of the Federal Govt and all other powers revert to the states. So there is nothing that says that each jurisdiction cannot establish such doctrine... and further, doesn't the SCOTUS typically rule regarding issues in individual states rather than on a national basis ...
The qualified immunity doctrine discussed in the OP article and in my comments is federal. Some state legislatures, e.g. Michigan, have passed state qualified immunity laws but they are generally inapplicable to suits brought under federal cases.

P.S. Vengeance is something the anti-gunners are getting very good at... don't be like the anti-gunner. Yes, officer's need to be held responsible, but there are ways to do that without salivating over exacting a pound of flesh.
I agree completely.
 
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RedCardinalSeven

RedCardinalSeven

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Respectfully, you cannot quote an ORS section the proves you are wrong and say you are right. 813.095 is essentially a civil act saying your driver's license gets taken away (a privilege, not a right).
I cited "ORS § 813.095 et seq." So, I meant § 813.095 plus everything after it in chap. 813.

My hypothetical is exactly why qualified immunity exists.
Several times now I've looked back at what you wrote and what I wrote last night. It's now clear to me that I misread or misunderstood something in these two sentences: "Conducts field sobriety tests. Can tell the person has been drinking but does not think there is enough probable cause to arrest." However, for the life of me I cannot now remember or discover what I thought you had said at the time I wrote my response. So, I will simply say I made a mistake and I apologize for it.

Some slopes are actually slippery!
I agree with you, some slopes are slippery. However, in my opinion, the argument you made re: DWI and "everyone goes to jail", false arrest suits, cops hiding, etc. isn't one of those slopes that are actually slippery.
 
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RedCardinalSeven

RedCardinalSeven

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Disagree, since I'm not bloody likely to EVER get shot by any kind of local popo, but a public employee can take my house, my car, my grandkids, raise my tax so much that it soaks up all my savings, send me to prison for having a brace on my shortie, keep me from visiting my wife in the nursing home or visiting friends or going to church, make me wear a mask, make me lock up my firearms when they are not on my person, make me get a permit and pay a fee to install a lawn sprinkler system or to build a garden shed or remodel my bath/kitchen, limit my ammo purchases, tax my ammo, tax my mileage, tell me when and where and how much to pay to hunt or fish and price said licenses out of my reach, force me to share my home with indigents, start wars with nuclear armed countries, and on and on, ad nauseum. Bloody high-minded civic azzholes!!!!!!!
That generic non-LE "public employee" will never take your house, car, etc. She or he will send you an order to comply. If you refuse they may go to a court for an order. If you refuse to comply long enough and it's a high enough priority then someone with a badge and gun will show up with an order or a warrant. It might be "local popo", sheriff's deputy, staties, or the feds but it won't be a generic non-LE "public employee". The paper-pushers outsource their dangerous work.

That's one thing that's so crazy about "progressives" and their grand spending dreams. They seem to think that the tax money the government spends grows on magic money trees and glibly say, "Taxes are the price we pay for a civilized society". I would have more respect for them if they admit that somewhere behind the tax man is the guy who will come for you with a gun if you don't pay up. Maybe one thinks that is right and proper but let's not have any illusions about where public money comes from and how it gets in the public coffers.
 
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bbbass

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Most of the time my thoughts are not well organized/expressed nowadays/anymore. Taking criminal activity out of the equation because the OP focuses on the lawsuit, I'd like to try again....

1. Family or common law wife of Scott wants to be compensated for loss of loved one.

2. Society at large shares an interest in families etc being justly compensated.

3. "Qualified Immunity" rightly or wrongly protects LEOs individually from civil liability.

4. Assume for this that there exists a possibility of "Wrongful Death".

5. In my alternative, "Qualified Immunity" would not extend to the employer, be it city, county, state.

6. Family/whomever sues the LEOs employer, not the individual LEO.

7. A trial is set to determine financial outcome of suit.

8. Witnesses are interviewed, then called, including LE involved and those testifying on behalf of all interested parties.

9. Financial responsibility of all parties is determined by a 51% margin of evidence. Responsibility could be assigned to employer in whole or in part, the one shot in whole or in part, shared, none, or even others not named in the suit.

10. If employer is found to be 100% culpable due to the actions of its employee, employer pays whatever fee/funds.

11. Family goes away not happy, but is compensated at whatever level the court/jury decides.

12. The employer dislikes paying out for wrongful actions of its employee. Said employee is fired. Employer has further interest in ensuring proper actions of its employees and takes steps needed to manage/correct/train/retrain individuals and further a culture of correct action.

13. The taxpayer dislikes being on the hook for such payouts and has an interest in oversight of employers of LEOs. Taxpayers, therefore "encourage" depts to manage/train/correct/retrain and further cultures of good policing.

Is there a reason this wouldn't work???
 
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bbbass

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That generic non-LE "public employee" will never take your house, car, etc. She or he will send you an order to comply. If you refuse they may go to a court for an order. If you refuse to comply long enough and it's a high enough priority then someone with a badge and gun will show up with an order or a warrant. It might be "local popo", sheriff's deputy, staties, or the feds but it won't be a generic non-LE "public employee". The paper-pushers outsource their dangerous work.
Yes and no. Public employees do have power over people because of the "threat" of force that could be applied. MOST people will comply due to that threat and because we are mainly a law-abiding people with a culture of respect for the rule of law.

So I'll stand firm on my point that my lack of interface with LE puts me at less risk of death or other serious bad outcome. Due to the fact that I am generally law abiding (other than minor scoflaw activites, and disregarding the potential for 2A resist). But my interface with public employees that have authority backed by the threat of force, lets say "laws, and regulatory or judicial authority" is great, broad reaching, and constant. As opposed or compared to my interface with say, the trash company, which can only suspend my service. ;)
 
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I dont know man, they should be held accountable just like regular people. Make a mistake like that and pay the price for it. You don't just shoot like that, turn it around and Imagine it knocks on the door at 1:30am, you open (assuming its someone bad) and just start firing. Ends up to just be your neighbor or something..oh upppps...just get away with it? Can't be, no excuses for cops, I can't believe I am saying this but they aren't robots but humans too that make mistakes and should be held accountable just like everyone else.
 

DangerDog

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This discussion often becomes polarized. Have any opinion at all and you'll make an enemy.


...POOF













.




.
Luckily I don't give darn what strangers think of me or need any sort of validation. It's really irritating to me how folks act as if they're for liberty but support a police state and cops can do whatever they want all willy-nilly with zero accountability and consequence. At the end of the day, cops aren't on our side and they'll do whatever their tyrannical masters tell them to do. That's how it is, and it is what it is.
 
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Luckily I don't give darn what strangers think of me or need any sort of validation. It's really irritating to me how folks act as if they're for liberty but support a police state and cops can do whatever they want all willy-nilly with zero accountability and consequence. At the end of the day, cops aren't on our side and they'll do whatever their tyrannical masters tell them to do.
100% agree. Enforcement of willy nilly "laws" that someone else made up. I think some of them went in to help people but then somehow just become "enforcers" that see the public not as people but as the enemy. I always think it takes a pretty numb individual to become someone who can only operate on laws and rules, take the book away and they dont know how to handle a situation.

For example, my piece of paper says black on white "...children have the choice to choose between households and go between as they please..". Being physically restraint from leaving other household, called the cops, cop says "under oregon law kids dont have a will or choice" EVEN WITH THE BLACK ON WHITE AGREEMENT. No budge, porki did not give a rats bubblegum about the kids.
 
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RedCardinalSeven

RedCardinalSeven

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I would just like to say I appreciate threads like this and the benefit to critical thinking they bring to those who carry firearms for self defense and support 2A issues. @RedCardinalSeven & @bbbass, (and others) thank you for encouraging me to dig into this and consider other perspective. Nothing but respect from me.
I have more I'd like to say on this thread but don't have the time and energy tonight for anything but this one post.

Your welcome, WillametteWill. My thanks also to you for your generous words and to everyone else who has made a productive contribution to this thread on a contentious subject.

That said, it appears I owe WillametteWill at least one more correction and apology. Earlier I wrote: "Drivers have given their implied consent to be field tested or to have their blood, breath, or urine tested if the police officer reasonably suspects that the person has committed the offense of driving while under the influence of intoxicants (ORS § 813.095 et seq.)"

Under ORS § 813.135, "reasonably suspects" is the standard for field sobriety tests only. The standard for implied consent for blood, breath, or urine tests is "reasonable grounds" or "reasonable suspicion" following an arrest, which requires probable cause. There, I think I finally got that right.
 

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