I was only trying to point out the fallacy and inequality of the argument being used in the first place.
I was only trying to point out the fallacy and inequality of the argument being used in the first place.
I'd like to amend my thought after reading this. I think he should be allowed to carry a drako and not be harrassed for doing it. But doing the rest of the stuff he did in this scenario makes me think he's impacting the gun community negatively.
He dressed up in camo and what the average citizen might call combat atire, he painted the tip orange on his gun, he slung it over his back making himself looking like a militant. That's what I have wrong with this picture. Not his right to carry it.
I see where you're going, but fail to see the prevalence aspect. We've yet to see a single report of an officer drawing on someone juggling bats. Were an officer to do so and able to offer an reasonably articulated argument for the act, I'd expect the subject wouldn't be charged, but the officer to have qualified immunity remain intact just the same. There's a wide margin between a prosecutable offense and removal of qualified immunity. In most loss of qualified immunity cases, willful disregard and intent to deprive are factors, neither of which are present in this case.
Your all or nothing argument is not conducive to good public policy. Both the 1st & 2nd have limitations. Google Paul F. Little if you dont believe me.
As with qualified immunity, theres a wide margin between nihilism and cold war East Germany. If you live on a deserted island, anything you want to do is good to go. Add one single person to your island and you have to make some concessions if you want a peaceful coexistence. If not, then might makes right. America was founded with a specific set of provisions to ensure a continued existence based on personal freedoms. Yet even in 1777, not everyone agreed on what personal freedoms were protected. Now add 235 years of muddying the waters and back and forth rhetoric. See where we are? Its not, nor has it ever been a black or white issue. I dont agree with all the laws, but in a nation of laws, we live within the framework were provided and work within that framework to effect changes.
We have a system to provide redress for grievances, such as unlawful detention by law enforcement under gray area circumstances. This system provides for multiple redress levels between a gentlemanly resolution and incarceration of the offender. If you were to implement a black or white system of redress, it would never adequately address every incident and would completely undermine the current rule of law. I happen to agree that Mr. Draco Toter was violated. Ive simply evaluated the level of violation, considered his actions in their entirety and made a value judgment that his level of redress should be smaller than what a black or white assessment would provide. Its a free country still yet, so others are free to disagree with me. Thats what makes this country great!
All I'm saying, is that your original argument, as presented, would give officers essentially unlimited powers to hold, detain, etc, anyone for any reason as long as it wasn't specifically disallowed clearly by law and legal precedent. I think that's a dangerous interpretation.
From what I can find overall length is 16" or less in Oklahoma.
Immunity is an interesting issue, even code enforcement officers get it now. Equal under the law?
http://www.justicelives.com/
And yet it doesn't come up that often. I think that speaks to the overall professionalism of law enforcement as a whole. I think an obvious example where qualified immunity should be denied is Mike Nifong (Duke lacrosse prosecutor). That's an obvious abuse and violation of his oath of office.
Most cases of lost qualified immunity result from wrongful death suits where the officer acted outside the scope of their authority.. Here's a case where qualified immunity was upheld because the officer asserted it (it's an affirmative defense that must be asserted) and ultimately provided a reasonable explanation of the circumstances that led to his decision:
Here's a case where QI was lost:
See the difference?
Every state in the nation offers law enforcement a level of QI. However, QI being an affirmative defense, it's still subject to judicial review on a case by case basis. Why is QI offered? Here's an excerpt of a legal paper on QI in Maryland that sums it up nicely:
I won't bore everyone with the entire article, but here's a pretty good snapshot of the what, when and why of QI:
http://lawenforcementlawyers.wordpr...y-or-why-am-i-still-a-defendant-in-a-lawsuit/
Based on all this information, the court would have to decide whether it was reasonable and prudent to detain Mr. Draco Toter, based on the entirety of the information available to the officer at the time of the event. I believe that under those circumstances, QI would be applicable. Keep in mind that QI applies to individuals, not agencies. This is the reason most (if not all) tort claims list both the agency and officer as defendants. If discovery reveals that the officer acted outside the scope of their authority, acted with malice, etc., the officer will be swinging in the breeze without a net. If they meet the standards for QI, the agency can still be held liable for failure to train, failure to properly supervise, failure to enact necessary policies and procedures, etc.
It's a tricky subject and savvy officers do a credible balancing act between acting soon enough and with that force which is necessary, and becoming a slain officer statistic. I say this because one study found that "Officer Friendly" types were far more likely to be feloniously killed in the line of duty than more aggressive officers. Overall, the washout rate within 2 years of entering law enforcement is as high as 80%, and cop suicides outnumber those killed in the line of duty by a sizable number. Just some things to think about for those that want the cop fired or sued out of existence.
Unfortunately you've confused sovereign immunity for qualified immunity. Try this link instead!
http://dictionary.findlaw.com/definition/immunity.html
My hat is off to you guys. I wouldn't put this much thought and work into an analysis unless I was getting paid. You guys are to be commended (and yes, I am being sincere).
Prosecutorial immunity is different than QI,and given a recent Supreme Court decision it's questionable whether Niefong would get away with it now. And given the growing number of wrongful convictions being exposed it's becoming a bigger issue.
Supreme Court Strengthens Prosecutorial Immunity
In an appalling 5-4 ruling, the U.S. Supreme Court confirmed and even strengthened prosecutorial immunity, extending it from personal immunity to a stronger form of agency immunity as well. The case is Connick v Thompson, where Connick is the former Orleans Parish District Attorney Harry Connick, Sr. (yes, father of the crooner) and Thompson is John Thompson, a man falsely convicted of murder because Connick’s office hid a report that ultimately exonerated him.
The prosecutors admit to that, by the way. There is no controversy over whether they violated the law and their ethical obligations and railroaded an innocent man, who was only weeks away from being executed for that crime he did not commit when the report that proved his innocence was discovered and used to overturn his conviction. The prosecutors admit withholding the evidence.
Thompson then filed suit against the DA’s office, showing that Connick had failed to provide training for his prosecutors on the illegalities of withholding evidence. A jury found the office liable for that negligence and awarded Thompson $14 million in damages for the 14 years of his life spent behind bars and facing the death penalty. The appeals court affirmed that verdict. And the Supreme Court has now overturned it. The reason?
A district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation.
It was only one guy!
Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. A local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for §1983 purposes, but the failure to train must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Deliberate indifference in this context requires proof that city policymakers disregarded the “known or obvious consequence” that a particular omission in their training program would cause city employees to violate citizens’ constitutional rights.
Okay, so it has to be an official policy. And it can only be an official policy if they knew that the obvious consequence of their actions would be to violate the rights of citizens. So is the argument here that the prosecutors didn’t know that withholding evidence of Thompson’s innocence would violate his rights? The whole point of doing so was to lock him up and eventually put him to death, for crying out loud.
The 5-4 ruling was predictable - Thomas, Scalia, Roberts, Alito and Kennedy in the majority, the court’s four liberals in dissent. You can read the full ruling here.
Remember when Clarence Thomas, during his confirmation hearings, talked about those buses full of convicts that he saw go by his office in DC and how, because of his background as a poor young black man, he would show more compassion to their situation because, but for the grace of God, there went he? Neither does he.
His message to John Thompson: Sure, the government ruined your life and violated your rights. Tough. You’ll get nothing. And like it.
http://scienceblogs.com/dispatches/2011/03/31/supreme-court-strengthens-pros/
Supreme Court Strengthens Prosecutorial Immunity
In an appalling 5-4 ruling, the U.S. Supreme Court confirmed and even strengthened prosecutorial immunity, extending it from personal immunity to a stronger form of agency immunity as well. The case is Connick v Thompson, where Connick is the former Orleans Parish District Attorney Harry Connick, Sr. (yes, father of the crooner) and Thompson is John Thompson, a man falsely convicted of murder because Connick’s office hid a report that ultimately exonerated him.
The prosecutors admit to that, by the way. There is no controversy over whether they violated the law and their ethical obligations and railroaded an innocent man, who was only weeks away from being executed for that crime he did not commit when the report that proved his innocence was discovered and used to overturn his conviction. The prosecutors admit withholding the evidence.
Thompson then filed suit against the DA’s office, showing that Connick had failed to provide training for his prosecutors on the illegalities of withholding evidence. A jury found the office liable for that negligence and awarded Thompson $14 million in damages for the 14 years of his life spent behind bars and facing the death penalty. The appeals court affirmed that verdict. And the Supreme Court has now overturned it. The reason?
A district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation.
It was only one guy!
Plaintiffs seeking to impose §1983 liability on local governments must prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. A local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for §1983 purposes, but the failure to train must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Deliberate indifference in this context requires proof that city policymakers disregarded the “known or obvious consequence” that a particular omission in their training program would cause city employees to violate citizens’ constitutional rights.
Okay, so it has to be an official policy. And it can only be an official policy if they knew that the obvious consequence of their actions would be to violate the rights of citizens. So is the argument here that the prosecutors didn’t know that withholding evidence of Thompson’s innocence would violate his rights? The whole point of doing so was to lock him up and eventually put him to death, for crying out loud.
The 5-4 ruling was predictable - Thomas, Scalia, Roberts, Alito and Kennedy in the majority, the court’s four liberals in dissent. You can read the full ruling here.
Remember when Clarence Thomas, during his confirmation hearings, talked about those buses full of convicts that he saw go by his office in DC and how, because of his background as a poor young black man, he would show more compassion to their situation because, but for the grace of God, there went he? Neither does he.
His message to John Thompson: Sure, the government ruined your life and violated your rights. Tough. You’ll get nothing. And like it.
http://scienceblogs.com/dispatches/2011/03/31/supreme-court-strengthens-pros/
