Lawyerly law stuff that's interesting


#121

#122

It’d be interesting if cops could somehow ignore the law due to being ignorant of it, given that defense works for literally no one else.


#123

Most of the time they can. It’s the actual defense they use constantly and it works.


#124

Isn’t that the normal situation?


#125

Ya, I guess. Fuck everything.


#126

Oh btw. She was innocent. They didn’t even bring charges.




#127

That’s not really what’s going on here.

If a cop commits a crime, then they are entitled to the same protections and subject to the same penalties as anyone else.

If a cop violates someone’s rights, that isn’t a crime. For the same reason that violating the Americans with Disabilities Act isn’t a crime: it’s a different branch of law than the criminal code.

The cop might be subject to administrative penalties. Furthermore, the cop could be sued by the person whose rights were violated, but only if a reasonable person should have known better. If the court decides that a reasonable person might have done the same thing, then the cop is entitled to qualified immunity and cannot be sued.


#128

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#129

Well, it’s true that grand juries and prosecutors tend to be more deferential to cops than the general public (also: white people, rich people). My point is that they aren’t entitled to anything, ie it’s not baked into the system.

So when the criminal justice system does go after a cop who has committed an actual crime, they cannot claim qualified immunity, any more than a defendant can claim they have “white guy immunity”. Cops have to use the same legal defenses as everyone else.


#130

As long as they commit said crime while on duty, then… not really.

Then they get qualified immunity all over the place. Even for busting down your door at night and shooting you.


#131

Nope. There are qualified immunity cases that arose from shootings, but they were all civil lawsuits trying to recover damages from violating someone’s rights. They are similar to wrongful death cases involving negligence, in that you can defend yourself by showing that a reasonable person would have done the same.

If a prosecutor had wanted to pursue those cases and actually charge the cop with murder, qualified immunity wouldn’t have made any difference.


#132

Which they totallyOHWAIT

And then you can’t pursue any civil justice because cops are magical.


#133

You can sue cops for violating your rights the same way you can sue people for negligence. You have to prove they acted unreasonably.

And you can put a cop in jail the same way you put anyone else in jail: convince twelve random people he deserves it. If that’s too difficult, blame random people.


#134

IANAL, but I believe the standard is no longer a reasonable person, but a reasonable police officer. That makes the burden much, much higher for plaintiffs.


#135

I think you’re right, but I think it makes it harder for the defense. A reasonable person might not know that you need a warrant to search a car’s trunk in a routine traffic stop, but a reasonable cop would.


#136

Thanks magnet for clarifying some of this for me.

Is the main obstacle the random people or the prosecutor?


#137

Don’t forget that Qualified Immunity didn’t exist until the courts invented it in 1982 by pulling it out of their asses.
Actual judicial activism, but it’s okay because it mostly affected black people.


#138

So: these cops got a warrant that vaguely allowed a search in David Eckert’s anus for drugs. Even though searches found nothing, the cops and doctors continued to escalate to steadily more invasive procedures into David Eckert’s body to find drugs. Yet, under the “good faith” exception, their reliance on the warrant might be valid if the warrant was valid. Moreover, as Prof. Kerr explains, the cops might be able to rely on the qualified immunity that government employees tend to enjoy when they do things like subject us to involuntary anal probing.


#139

A Few Good Men in real life going down in Guantanamo?

In rapid succession Tuesday, a Marine general refused to testify and refused to rescind an order releasing three civilian defense lawyers, a Navy defense attorney refused to file pleadings and a military judge scheduled a contempt hearing in the USS Cole death-penalty case.

All were firsts at the war court created after the Sept. 11 attacks to handle national security cases, as judge Air Force Col. Vance Spath sought to stabilize a collapsed defense team in the case against Abd al Rahim al Nashiri. The 52-year-old Saudi is accused of orchestrating al-Qaida’s Oct. 12, 2000 warship bombing that killed 17 U.S. sailors, and could be executed if convicted.

Miami Herald USS Cole case hearing trial guide

The issue of the moment was how to continue pretrial hearings in the absence of a criminal defense attorney with death-penalty experience. Although by law a capital case requires a so-called learned counsel, Spath concluded the case could go forward because one wasn’t available.


#141

The most recent More Perfect podcast, on RBG as a civil rights lawyer and how the Supreme Court came to develop its jurisprudence on gender discrimination, is really fascinating.