Comment by jawns | Hacker News Reader

Comment by jawns | Hacker News Reader

While we're at it, let's have the Supreme Court clarify that aside from identifying yourself, you have the right to remain silent during a Terry stop.

It seems pretty obvious that if you have the right to not answer officer's questions in consensual encounters (where you're not suspected of a crime) and arrests (where you're charged with a crime), you should also have the right to remain silent during an investigative detention.

But just because it's obvious doesn't mean it's legally protected.

It turns out that the Supreme Court has declined opportunities to clearly establish the right to remain silent during a Terry stop.

Which means that in some cases, a person can be charged with obstruction if they refuse to answer an officer's questions during a Terry stop. Worse yet, if a court later finds that the officer has violated a person's constitutional rights by arresting them for refusing to answer questions, qualified immunity prevents the victim from being compensated for the injustice, because the right to remain silent during a Terry stop is not considered "clearly established."

Here's a link to a piece titled "Obvious But Not Clear: The Right to Refuse to Cooperate with the Police During a Terry Stop." It was published in the American University Law Review in 2020. Written by a University of Denver law professor and an attorney who graduated from that university, it reviews all of the relevant case law and urges the Supreme Court, other courts, and state legislatures to "clearly define" the right, which would remove qualified-immunity protections for officers who violate that right.

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?...

The Supreme Court should just not be allowed to select the cases they review. If lower courts and legal experts think there's a genuine circuit split or pressing legal issue that needs to be resolved, they should be able to force the Supreme Court to issue an opinion.

In the status quo it's not necessarily that the judge in a lower court recommend a being escalated to the Supreme Court or any higher Court, it's the defense that appeals and their appeal can be denied

Any decision in a civil case that has the weight of a final judgment can be appealed by the affected party. The cause of action in all of these cases alleging a violation of civil rights (like the right to silence during a terry stop) is 42 U.S.C. § 1983: "Civil action for deprivation of rights". The plaintiff would be the one filing the appeal, because lower courts have largely dismissed their claims; dismissal with prejudice is considered a final judgment.

The point about the status quo is that when there's uncertainty about what the actual law is, law enforcement picks a side and goes with it, and everyone else has to live in that reality. When there's genuine ambiguity as to how the law is actually supposed to apply, the Supreme Court shouldn't be able to just deny cert because they like what the government picked and are therefore beneficiaries of the legal uncertainty.

The situation in which lower courts would ideally try and kick something like this up to the supreme court is exactly when they start saying things like this in their opinions: "We hold that Alexander’s claim on this point cannot overcome the officers’ qualified immunity, because “it was not clearly established that an individual has a First Amendment right to refuse to answer an officer’s questions during a Terry stop.” Surprisingly few courts have ruled on this precise issue; the parties point to no cases from this circuit directly on point. The sparse case law that does exist, however, indicates no consensus that a defendant has a First Amendment right not to answer an officer’s questions during a stop like the one at issue here."

The courts are seriously overloaded. This would amount to an immediate and unsolvable denial of service attack on the court.

The only thing worse than no decisions are hasty decisions without all the facts or enough time to consider them.

The commenter above doesn't understand how courts work.

When a court declines to hear an appeal, they are simply saying that the below court handled the case appropriately. By choosing not to hear it, they ARE ruling on it by maintaining the lower courts decision.

To say that SCOTUS "refuses" to hear cases on Terry cases, they are saying that the lower courts were correct.

It's not like they are dodging their responsibilities when declining to hear an appeal. That's how the system works - otherwise literally every losing party would appeal every single case to the supreme court.

> When a court declines to hear an appeal, they are simply saying that the below court handled the case appropriately.

No, they emphatically are not.

When a courts with discretionary appellate jurisdiction (in the US federal judiciary that's mostly the Supreme Court) declines an appeal, it is not the same as saying the court below is right, its saying “we have limited time and this case and the question it presents isn't important enough for us to spend time reviewing in detail, either procedurally or on the merits”.

There are fairly well-known factors that influence decisions to take cases by the Supreme Court (the issue having a thin record at the apellate level being a negative factor, a conflict between the circuits on a question being a positive one, among many others) that have nothing to do with whether the case is right or wrong, but have more to do with whether it raises issues that have been well vetted and for which there is some urgency (as arises from inconsistent application of the law) to resolve.

> To say that SCOTUS "refuses" to hear cases on Terry cases, they are saying that the lower courts were correct.

No, they aren't.

> It's not like they are dodging their responsibilities when declining to hear an appeal.

In general, no, because making those decisions on hearing cases is their responsibility. The particular decisions can be instances of non-, mis-, or mal-feasance in those duties, though.

You have absolutely no clue what you're talking about. Even if we're playing by the book, the Supreme Court can choose not to grant cert because they believe a compelling circuit split hasn't yet emerged, stare decisis, they don't believe the controversy is ripe, they think it's a matter for someone else like the legislature, they don't have space on the docket, etc. Not granting cert is absolutely not an endorsement of legal interpretation by a lower court.

Beyond that, idea that justices wouldn't, even subconsciously, use the power to choose their own docket to favor their own policy preferences is just naive.

"you should also have the right to remain silent during an investigative detention."

You do. You have to expressly state that you are invoking your 5th ammendment right if they haven't charged you yet.

The thing that allows it to happen anyways is qualified immunity. The court is saying you have that right, but they won't hold the cop accountable for violating it because because it's not clear/official enough.

When I was younger (Actually I was pulled over about a year ago for no reason.). I was pulled over for basically an old car, and hair below my ears. I didn't want to say anything, but knew if didn't kiss their badge, I might get pricy ticket.

The one time I didn't answer their rediculious questions, like, "Where you are going. What are you buying at Safeway. It seems strange you are buying dinner at 10 pm". These were the actual questions.

She walked around my car looking for something to ticket, and then said I was speeding. A $350 ticket.

Yea, I tried to fight it, but she actually showed up in court, and the judge sided with the Police Officer.

(In California their was a bill that would essentially legalize jaywalking. It was drafted because cops were using jaywalking violations to harass, and intimidate citizens. Basically, I have nothing on you, but I could site you for jaywalking.

Governor Neusome vetoed the bill. I get where he was comming from, but still disappointed.

I don't know the solution other than every cop, including undercover cops, should have a camera on every minute of their shift. Only using a bathroom could the cop flip the cover on the camera.

Those tapes should be allowed to be retrieved in an easy fashion by anyone. If cops resist, their are many people in line for that job.)

The start of a solution is to remove the USSC-created fiction of government immunity. A few money judgments against individuals and they will all shape up.

Note that a private person doesn't have their civil lawsuit attorney file a motion to dismiss because of immunity. Giving government bad actors immunity causes behaviors that are harmful. Black Lives Matter would do well to look at this, if they are interested in the causes of government misconduct.

No, they will all just quit. There is no job on Earth that you could fill, from teacher to plumber to police officer, that literally anyone would do if they were held personally responsible for doing their job wrong on the job.

It's insane that people want to strip this worker protection away from workers.

There has to be some kind of balance against the overwhelming power law enforcement wields over citizens. Maybe totally removing qualified immunity isn't the answer. But something needs to change to curtail abuse. I have no idea what that might be - even stepping up internal enforcement of policy and proper procedure might have the unintended consequence of law enforcement becoming reluctant to do their jobs.

There is a big difference between an honest mistake and willful actions that sabotage the job. For the latter normal employees are being held personally responsible. There is no reason prosecutors / police / similar should be the exception. They've committed criminal acts. Let the fuckers suffer the same fate they've imposed on their victims at taxpayers expense.

Your argument makes no sense because qualified immunity doesn't even protect against CRIMINAL acts, even today.

So I take it then that willfully ignoring a law and withholding an exculpatory evidence is not a crime then. Nice. Basically license to screw one's life without any consequences.

> There is a big difference between an honest mistake and willful actions that sabotage the job

Willful sabotage is not protected by QI.

> They've committed criminal acts.

Criminal liability isn't affected by QI (it is affected by absolute immunity, but that only applies to things that are mandatory, not discretionary, parts of the job.)

>"Willful sabotage is not protected by QI."

Then please explain please how withholding exculpatory evidence contrary to the law is not a willful sabotage?

You never heard of a doctor sued for malpractice? Or a writer sued for libel?

> There is no job on Earth that you could fill, from teacher to plumber to police officer, that literally anyone would do if they were held personally responsible for doing their job wrong on the job.

Most private jobs have no immunity from liability for workers for torts done on the job; in most the employer is also liable and often a more attractive litigation target—more money, more motivation to settle, more likely to pay a judgement it settlement. But the worker isn't immune, and it's regularly sued when the employer is.

And yet, people work all kinds of jobs with neither absolute nor qualified immunity.

When I was a bartender I had strict liability for:

- mistakes I made over-serving customers

- non uniformly applying dress code rules in ways that would be racist

- results of using violence as necessary to remove overly drunk patrons from the bar property (regardless of whether they drank anything at my bar)

And I got paid $2.65/hr for that privilege in 2008. But at least it was a job during a recession.

You literally just argued against the whole concept of liability

A DoD Information Assurance Vulnerability Management professional is required to sign a document that says they will be personally responsible if a breach occurs on their watch due to error on their part. An IAVM protects intellectual property. A cop protects lives. I consider lives more important than intellectual property - so why shouldn't a cop have to sign the same type of document?

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