Hacker News Reader

Comment by BurningFrog | Hacker News Reader

Just so we know what we're talking about, here is a description of the 13 Qualified Immunity cases that may get to the Supreme Court soon.

https://www.cato.org/blog/may-15th-supreme-court-will-finall...

Sample:

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 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.”

View on HN

If Congress is considering legislation to change QI then the Supreme Court has little reason to take up these cases. SCOTUS should stay silent when the legislative branch is at work to correct something that was a judicial creation or when it looks like Congress intends to legislate in an issue.

Edit: I will just reply to all of the comments downthread at once because they all seem to urge the same thing. SCOTUS has no incentive to act when the legislative branch is doing something that could easily overturn or not align with their decision, which would render their decision moot. A law that Congress passes overrules any and all SCOTUS precedent on the issue because Congress "legislates against the backdrop of the common law." Further, Congress has the ability to move much faster than SCOTUS: a bill could be passed on less than a month in Congress while it will take at least a year for SCOTUS to reach a decision.

The court would not discharge its duty to follow the law if it were to decline to correct earlier precedent on the basis that the legislature could at some point alter the law once again. In this case, the question is whether qualified immunity is a correct interpretation of the code or not. Whether or not Amash proposes to alter the law in such a way as to clearly change the law to preclude qualified immunity, the court should consider the cases before it on the basis of the law as it is (or will be, if Amash decided to remove qualified immunity with retrospective effect.)

The cases would still be evaluated as per the state of the law as it stood at the time the questionable acts occurred. If police were operating under QI and QI is later repealed, changing the law's interpretation of their behavior after-the-fact to find them liable is ex post facto law.

Sucks and is unfair, but it's the same principle that stops the government from, for example, jailing people who used to drink if Prohibition were put back in the Constitution.(1)

(1) There's a carve-out in jurisprudence that if something was illegal in the past, and you're jailed for it, and it is later made legal, your continued incarceration can be re-considered. But that's handled on, generally, a case-by-case basis.

> The cases would still be evaluated as per the state of the law as it stood at the time the questionable acts occurred. If police were operating under QI and QI is later repealed, changing the law's interpretation of their behavior after-the-fact to find them liable is ex post facto law.

No, it's not: ex post facto is a term of art for retroactive criminalization; QI applies only to civil liability. Retrospective enhancements to civil liability are not Constitutionally prohibited.

Interesting. You're right about the gap between civil and criminal law, but I can't think of any examples of someone going after civil liability for something that happened in the past under the legal reasoning that a law passed after the act makes the act one a person can be liable for. Can you give an example?

A good example is the post-9/11 lawsuits filed against foreign governments that were enabled by passage of JASTA or liability for asbestos which was broadly enabled by legislation.

Not exactly the same, but the legislature retroactively extended the statute of limitations for sexual abuse lawsuits. Not a case of a newly illegal act, but a case where someone who was in the clear for a past act became liable again.

https://blog.ericgoldman.org/archives/2020/01/new-civil-fost...

Several examples here.

Section 1983 is civil, not criminal. The Klan act does have criminal provisions as well.

> If Congress is considering legislation to change QI

There already is legislation making government officials liable for violating someone's Constitutional or legal rights. 42 USC 1983 is pretty clear:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured..."

So I don't see why the court had to make up this whole "qualified immunity" thing in the first place. Just judge the question: did the government official violate the person's Constitutional or legal rights? If they did, they're liable.

As a pure layman, I would think that the 4th amendment would preclude cops from getting a warrant and then stealing everything on site. It says a lot about the country when we need MORE legislation and more rulings to prevent such a thing from happening.

> As a pure layman, I would think that the 4th amendment would preclude cops from getting a warrant and then stealing everything on site.

So would I, since according to the 4th Amendment warrants must be "particularly describing the place to be searched, and the persons or things to be seized".

> It says a lot about the country when we need MORE legislation and more rulings to prevent such a thing from happening.

Since rulings and legislation apparently haven't stopped it from happening up to now, I'm not sure how more rulings and legislation will help, without some fundamental change in how the rule of law is viewed by everyone.

> while it will take at least a year for SCOTUS to reach a decision.

The Supreme Court has the ability to rule on things overnight. A very well known case where they did was Bush v. Gore[0]; The case was argued 11 Dec 2000, and ruled on the next day.

They just generally don’t because ruling overnight would take their focus away from the other cases they need to rule on.

[0]: https://en.wikipedia.org/wiki/Bush_v._Gore

That's not a great example as it turned out (years later when the raw data came out) that Gore in fact won Florida. So their overnight decision was objectively wrong.

This is not accurate. No full recount was ever made. There was a widely publicized sample count commissioned by several media outlets, CNN, LA Times, New York Times, WSJ, etc... that was took of about 4% of the votes from select counties that then counted that Gore would have won by, literally, "60 to 171" votes - not a statistically significant result.

source: https://en.wikipedia.org/wiki/2000_United_States_presidentia...

The Wikipedia page you cite does not support your position:

> Ultimately, a media consortium [...] hired NORC at the University of Chicago[68] to examine 175,010 ballots that were collected from the entire state, not just the disputed counties that were recounted [...]

That's saying that it was sampled from the entire state rather than "select" counties.

On a broader point, it seems pretty safe to say that a 100% accurate tally of the votes in Florida would have given the state to Gore, but it is unclear if any recount would have given that result. Note that in addition to the infamous hanging chad controversy, there's also a decent chunk of votes for Pat Buchanan in areas that don't match up with his demographic base that were probably meant for Gore.

Or put somewhat differently, Florida in 2000 was a case where the margin of victory was less than its ability to accurately record votes.

> it seems pretty safe to say that a 100% accurate tally of the votes in Florida would have given the state to Gore

This is not supported by any of the sources in the wikipedia page. There don't seem to be any sources saying how the sample was collected from each or which counties. ...you are right it does not say "select".

But regardless, a margin of ~100 votes on a sample of 175K votes is not a margin with which you can make the statement "it seems pretty safe to say that a 100% accurate tally of the votes in Florida would have given the state to Gore" ...that's ludicrous.

You've misunderstood my point.

We know that the butterfly ballots were a poor design that caused vote confusion, and we also know that Bush was less affected by this than Gore (by virtue of the fact that Bush was the first hole, and thus any misalignment caused by an oblique view would line up with no hole, as opposed to oblique views causing Gore's arrow to line up with Buchanan's hole).

From the actual results, we know there is a chunk of votes in Palm Beach for Buchanan that doesn't seem appropriate. According to Buchanan's campaign, this would be a bit shy of 3000 votes for Buchanan that should have been for Gore [1]. No recount would have changed these votes (nor should one), but a more accurate voting machine would have given these votes to Gore.

That's why I say that it seems safe to say that Gore legitimately won Florida, on the basis on what the voters intended to vote, but it's quite unclear what even the best recount would have said the winner is.

[1] https://en.wikipedia.org/wiki/Pat_Buchanan#2000_presidential...

The question before the court was a point of law, not a disagreement about vote totals.

QI was invented by the courts and should be fixed there if possible.

Hopefully this law passes, but even it doesn't the court should still reverse the previous interpretation.

> If Congress is considering legislation to change QI then the Supreme Court has little reason to take up these cases

No, because the current state of the law still matters. In fact, it might matter even more if there are legislative proposals pending.

I don't disagree and, to be clear, I am against qualified immunity as it currently exists. But, my point is that SCOTUS has little reason to take these cases and risk being overruled by Congress. It's one thing for Congress to roll back 5+ year old decisions where the Court still had Scalia and Kennedy (or others) sitting, it would be another for Congress to roll back a present-day decision issued by the current makeup. The Court would lose face, and I doubt Roberts or the Justices are interested in an outcome where they would so quickly have their hand slapped by Congress.

> But, my point is that SCOTUS has little reason to take these cases and risk being overruled by Congress.

Well, it's got one big reason: to clarify the basis of the doctrine, particularly, whether (and, if so, to what extent) QI for discretionary acts not covered by absolute immunity is, as IIRC absolute immunity itself is held to be, of Constitutional character and thus not subject to legislative nullification.

I don't see why changing the law is "slapping the hand" of a court telling us what the law used to be.

IMO the Court deserves to have its hand slapped for inventing the whole "qualified immunity" doctrine in the first place, instead of just ruling based on the plain language of 42 USC 1983.

The primary job of the Supreme Court is not to decide cases. The job of the Supreme Court is to create precedent to help lower courts decide cases.

That they have to decide cases to create said precedent is a side issue.

What this means is that if the law is likely to be changed, then there is little incentive to set a precedent that will have effect on a limited number of pending cases. Whereas if the law is not likely to be changed, the precedent set will affect many future cases and has a greater impact.

Therefore the Supreme Court is properly less interested in cases if it looks like legislation will be passed to address the issue.

> The primary job of the Supreme Court is not to decide cases. The job of the Supreme Court is to create precedent to help lower courts decide cases.

Not really. The primary job of the judiciary, SCOTUS included, is to resolve "cases and controversies." This goes to the heart of judicial restraint, as proscribed in the Constitution, and is commonly referenced in the Court's opinions.

Functionally, SCOTUS ends up writing precedent. But the precedent must flow from the case. Cases mustn't be decided for the purpose of creating precedent.

Cases aren't for that purpose, but they are chosen by that criteria.

You don't have to take my word for it. The Supreme Court gets about 7000 petitions per year and only listens to 100-120 of them. Per https://www.ushistory.org/gov/9c.asp the criteria that they choose by is:

Generally, the Court considers only cases that have far-reaching implications beyond the two parties involved in the dispute. For example, a case in which a student sues an assistant principal for searching a locker may shape the privacy rights of all students in public schools. The court also tends to hear cases in which two lower courts have reached conflicting decisions. And it tends to look closely at lower court decisions that contradict earlier Supreme Court decisions.

In other words it chooses cases based on the importance of the precedent that is likely to be set or reinforced. The importance of the case to the people involved is less important than that.

> The primary job of the Supreme Court is not to decide cases. The job of the Supreme Court is to create precedent to help lower courts decide cases.

No, the job of the Supreme Court is to be the last court of appeal to uphold the US Constitution and laws passed under it. It does that by deciding cases. Setting precedent is a side effect, which can be helpful if it reduces the need for future cases of the same type to have to come to the Supreme Court again, but is not the primary purpose.

That is the purpose of the Supreme Court. However the Supreme Court listens to less than 2% of cases that come to it. But close to 100% of its decisions set precedent that is binding on lower courts.

The result is that precedent is the most effective tool that the Court has to serve its purpose. And therefore that is the most important thing that they do. And they are extremely highly aware of it.

> the Supreme Court listens to less than 2% of cases that come to it. But close to 100% of its decisions set precedent that is binding on lower courts.

And all 100% of its decisions decide cases. So more of its decisions decide cases than set precedents. So your argument is a non sequitur.

They could also save face by reversing one of the worst SC decisions within living memory. Especially one that is now universally condemned by the left and the right.

The prestige and legitimacy of the court is absolutely something that the court itself cares about.

Universally condemned? Come on, now.

In my non-constitutional scholar mind, the SCOTUS doesn't take things up often unless multiple circuit courts issue diverging opinions, and/or there are serious Constitutional questions. Given the severity of the issue, the possible prevalence of this kind of scenario coming up again, and (frankly) the clear Constitutional issues at play, they absolutely should take a look at it. If it's unconstitutional, it is unconstitutional.

The SCOTUS can't always "just go back" and pick up something they leave behind now, in the event Congress doesn't act. They kind of need to seize the moment.

Finally, if the Congress disagrees with the court, we could pass an amendment or other federal law.

> Further, Congress has the ability to move much faster than SCOTUS: a bill could be passed on less than a month in Congress while it will take at least a year for SCOTUS to reach a decision.

Congress has the _power_ to act faster, but not always the ability.

This is a problem entirely of judicial making. While I agree that Congress _should_ clean up the mess, this isn't one for the justices to punt on. They created the problem, they should pick it up as soon as they are able to.

You misunderstand the law completely in your comment and your edit. Congress (with good reason) doesn't get to shape the boundaries of constitutional law (for example the doctrine of qualified immunity we're discussing here).

That is specifically and only in the hands of the court, unless you want to amend the constitution.

Qualified immunity is not constitutional. It supposedly derives from the common law, so congress can change it through ordinary legislation.

> That is specifically and only in the hands of the court, unless you want to amend the constitution.

The Constitution nowhere says that the Supreme Court has the sole ability or power to "shape the boundaries of constitutional law". It grants the Supreme Court "judicial power", but judicial power is not the only power related to the law.

Check out Marbury v. Madison.

I'm quite familiar with Marbury v. Madison; it does not give the Supreme Court the sole ability or power to "shape the boundaries of constitutional law" either. It simply defines a key part of what "judicial power" means.

And "judicial power" includes the sole power to shape the boundaries of con law.

Who do you think can determine the boundaries of con law?

Sorry, but you are the one who completely misunderstands the law and the USA's system of government. Congress is the ONLY branch of the government which gets to shape the boundaries of constitutional law. You say it yourself in your second paragraph: Congress has plenary power to shape the boundaries of constitutional law via amendments. The judiciary only has power when the legislature has not spoken, and that power should, theoretically, be constrained to mapping the smallest contours of the constitution because delineating the shape of the boundary is Congress's domain (some would say it is their most important duty, which they have neglected for the past half century).

No, I'm sorry, because you are the one who complete misunderstands the law and the US system of government.

>Congress is the ONLY branch of the government which gets to shape the boundaries of constitutional law.

Yeah, no. Not even close. Are you familiar with Miranda, Brown v. Board, Obergefell and dozens or hundreds of others? These are all the supreme court shaping the boundaries of constitutional law. Congress has zero power to intefere here. If Congress passed a law trying to outlaw gay marriage tomorrow, it would be unconstitutional and unenforceable immediately.

You say it yourself in your second paragraph: Congress has plenary power to shape the boundaries of constitutional law via amendments.

No, I didn't say that. Congress does not have "plenary power" (not a single actor in US government has plenary power). Constitutional amendments require approval by states, so if you think I was saying congress had plenary power over anything, you misread.

>he judiciary only has power when the legislature has not spoken, and that power should, theoretically, be constrained to mapping the smallest contours of the constitution because delineating the shape of the boundary is Congress's domain (some would say it is their most important duty, which they have neglected for the past half century).

Not true at all. The Supreme Court can rule any legislative act of congress unconstitutional. Congress can make whatever law it wants and Scotus can say "nope". I love that someone who doesn't know about Marbury v. Madison is attempting to lecture me on constitutional law.

This is all nitpicking about process and doesn't change the ultimate conclusion regarding Congress's power. Name one other branch of the federal government that has the power to change what the constitution says. Not what it means, but what it actually says. If one does not exist besides Congress then Congress has plenary power.

The Supreme Court cannot rule an amendment unconstitutional.

> The Supreme Court cannot rule an amendment unconstitutional.

Well, duh. If Constitution is ammended, the new stuff can’t be “unconstitutional” because it’s literally part of the Constitution.

Besides, you’re the one nitpicking. Sure, the Supreme Court can’t change the Constitution, but their job is to interpret it. The First and Fifth Amendment don’t make any mention of technology, but the Supreme Court has ruled that those protections apply to technological speech and searches.

I am not nitpicking. The original poster said: "Congress (with good reason) doesn't get to shape the boundaries of constitutional law (for example the doctrine of qualified immunity we're discussing here)." and that the power to shape the boundaries of constitutional law is "specifically and only in the hands of the court." His assertion is flat out incorrect, and I responded by saying that Congress has plenary power to shape the borders of constitutional law. Why did I say this? Because Congress has the unique ability to amend the constitution.

Your sarcastic comment is exactly my point. If Congress has the power to make something literally part of the Constitution then they literally have the power to shape the boundaries of constitutional law because they literally have the power to rewrite the Constitution. And if Congress is the only entity with that power then their power is plenary. Which is to say that the power to shape the boundaries of constitutional law is not something that is specifically and only in the hands of the Court.

If Congress has the power to make something literally part of the Constitution then they literally have the power to shape the boundaries of constitutional law because they literally have the power to rewrite the Constitution.

Ex falso quodlibet. Congressional action is not sufficient to alter the Constitution.

> A law that Congress passes overrules any and all SCOTUS precedent on the issue

Wow, that's wrong...

Take Loving v Virginia: there, the court ruled that interracial marriages must be governed by the same rules as all other marriage.

No law of Congress can overturn that ruling. Only amending the constitution or the court itself have that (theoretical) power.

IANAL, but the difference is that in this case, QI came into being as a (very narrow) reading of federal law (§1983), which congress can amend easily. The Loving case was decided on an interpretation of the constitution, which as you say, is much harder to amend.

This is nitpicking by you, in my opinion. There are of course levels of authority between the judiciary and the legislature. Nevertheless, Congress can always overrule SCOTUS, it just depends what level of law they need to pass. A constitutional amendment is lawmaking.

It's not nitpicking to say that the court can invalidate legislation. It's one of the most important powers the court has.

Legislation would be preferred but won't happen. Mitch McConnell owns the Senate and any bills of this nature would never see the light of day.

Our experiment in democracy is throwing errors.

>>If Congress is considering legislation to change QI then the Supreme Court has little reason to take up these cases. SCOTUS should stay silent when the legislative branch is at work to correct something that was a judicial creation or when it looks like Congress intends to legislate in an issue.

WTF (sorry) took them so long? And how do you know what will pass as a law? Should we wait decades for cases to make it again to the court? Nope, SCOTUS should state what they think and be it.

Amash is a powerless nobody in congress. His proposal will very likely go nowhere.

But even if this law could go through, gambling on the future is not what courts do.

Wouldn't this be a State law anyway, not a Federal law?

QI is a supreme court created concept and it would be best if they handled it.

It's all moot. This bill has no chance in the Senate and the Republican Supreme Court is not going to reverse an earlier conservative decision.

I think the timing would not allow for politicians to oppose the shear political pressure on this one... it goes beyond tribal politics. For that matter, given Trump's populist pov, it's likely to get signed quickly as well.

I haven't read the proposed legislation so cannot speak to any specifics that may or may not be objectionable though.

I don't get the logic. When executing a warrent is the 4th amendment the only law that must be followed? If I murder someone while executing a warrent, is it unclear whether I broke the law, because the court has never declared that murder violates the 4th amendment?

I mean, that's why this is in the news right now. Yes, this one cop has now been charged, but it's not the norm.

This is a civil rights lawsuit, not a criminal case.

How come the officer isn't charged with theft/larceny?

Because the district attorney would have to bring those charges, and he doesn't want to, because it's his homies.

Which is interesting given his civil defense was “you can’t sue me because I stole the money from the police department/city not you”.

Tough on crime, as long as it wasn't perpetrated by mah buddies in blu?

The theory is that the coins were legally seized, then illegally stolen by the police officer. So the crime is theft (and various other things relating to a police officer stealing from "the system", like abuse of office), but not an illegal seizure.

I don't think that explanation is accurate, see https://law.justia.com/cases/federal/appellate-courts/ca9/17...:

> Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from Appellants’ properties. Appellants alleged, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins.

If the receipt was fraudulent, as is alleged here, I don't see how the seizure could be legal.

They even went so far as to falsify an inventory. Why would they go to that trouble if they believed their conduct was lawful? In my view this supports an allegation of wrongdoing.

Ah but if the defendant is later found innocent or charges dropped, who is sued to recover the property? The police officer or the department. Presumably the department because deeper pockets etc.

The police department is also the party who was legally responsible for those goods at the time, so obviously the defendant's case would be against the police department. The department is the one who was wronged by the officer, so they are the ones who have cause against him personally.

The defendants could make a reasonable case against both the officer who stole the property out of police custody and the police department that failed to protect it. The former for theft and failure to return the property to its owner, and the latter for negligence. I believe the term is "jointly and severally liable"?

The police department has its own separate claim against the officer, of course, for the costs they have incurred (separate from the value of the stolen property, which wasn't theirs to begin with) as a result of the officer's actions.

But from what I understand the department doesn't have the allegedly stolen property - the officers themselves do. Which is why the (innocent, I might add) individuals are left without recourse for action undertaken by government agents.

Certainly in many other contexts, the parent organization has been found responsible for negligent or illegal behavior by their employee for civil damages. That's one of the reasons for drug testing and background checks.

Thanks for that explanation. It completely reverses my initial view point.

One minor clarification: SCOTUS already chose to deny cert in Jessop, leaving the 9th circuit's grant of immunity standing.

You’d figure California could have figured this problem out without it needing to be appealed to the Supreme Court, but thankful it will (hopefully) set a nationwide precedent.

Reply on news.ycombinator.com