California Court of Appeal finds geofence warrant unconstitutional
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eff.org
- "Google produced a list of eight anonymized accounts that had been at two or more of the six locations at the relevant time periods. Of the eight accounts, one had been at four of the geofence locations, one at three locations and the remaining six had been at two locations. Haas requested, and Google produced, identification information for all eight accounts. Two of those accounts (the ones that had been at three and four of the locations) ultimately led authorities to Meza and Meneses."
The court document doesn't elaborate on what happened to those six people (were they even informed of the search, after the fact?) Maybe they don't care. From the judicial perspective, there is no such thing as a constitutional privacy right. The Fourth Amendment, for example, protects more narrowly against search in the context of criminal prosecution: no prosecution, no rights violation.
How can that be true, since the 4th amendment doesn't include any word or phrase referring to a prosecution?
It's something of a bug in the way America works. If cops conducting a search of your home disconnect all of your security cameras during the search, that's probably unconstitutional, but you can't prove that it harmed you, and being illegal isn't the same thing as being a crime, so it's just an unconstitutional thing that happened, and that's where the story ends.
It's also tangential and off topic to this conversation.
Qualified immunity is the principle that a public official acting in good faith cannot be held personally liable for an action that is later determined to violate the Constitution. No reasonable person, other than a nihilist, could possibly disagree with qualified immunity. (For those who insist on viewing everything through a political lens, qualified immunity was first articulated wrt police officers by the extremely progressive Warren Court in an 8-1 decision, the same court that gave us Miranda and struck down anti-miscegenation laws in Loving.)
What many people do reasonably disagree with is the shift in Harlow so that the official is presumed to be acting in good faith, and the person whose rights were violated has the burden of proving otherwise (by showing clearly applicable precedent).
A reasonable person can, and many reasonable people do, oppose Harlow and think it should be overturned. But it is not possible to oppose qualified immunity without also opposing functioning democracy.
Actually no, it's perfectly reasonable to disagree with it as you've described. There is no analog for private companies - an employee can incorrectly think they're following the law, and end up being personally liable for actions they undertook in good faith for the company. Private companies get along just fine - in practice its not an impediment to companies accomplishing activities on the border of legality.
I do believe that the focus on qualified immunity is a bit of a red herring though. What really needs to be drastically curtailed is general sovereign immunity. If police arrest someone, bust up their home, hold them for days, etc, and it turns out they're innocent, the appropriate government needs to be held directly liable/responsible for those damages. The government/department can then sort out whether those damages were due to some employees not following written policies, and if so discipline them and subrogate the damages. Right now the damages caused by law enforcement are being left as an externality funded by a perverse reverse-lottery, so predictably the injustices keep growing.
Qualified immunity is the principle that an official cannot be sued for an action that isn't clearly shown to be unconstitutional. It shuts down a lawsuit before there is any fact finding as to whether or not the official was reasonably justified in their belief that their actions were constitutional.
Yes, being reasonably justified that actions were constitutional should be a valid defense. But qualified immunity isn't a defense, it's a vehicle to shunt cases out of the system before the question of defense is raised. And we already have a judicial mechanism to decide whether or not someone's actions were reasonable: pick 12 random people and ask them if they thought their actions were reasonable, aka, a jury trial. There's no need for qualified immunity.
Which leaves me a little confused as to what exactly you think is false. That QI is an immunity from suit? Or that there is no fact-finding prior to a QI dismissal?
As an idiot with a PACER account I think I deserve an explanation. If I promise not to argue with you, will you please explain this a little more deeply?
(And yes, I read Harlow although I admit it didn’t make me feel much smarter).
Under Harlow there is a presumption in favor of the official such that these suits are often dismissed at the 12(b)(6) stage. However, that is incidental. It is specific to Harlow. As such, while perhaps a valid criticism of the Harlow QI regime, it is not a valid criticism of QI; just as the valid criticism of coarse stop-the-world mark-and-sweep is nevertheless not a valid criticism of automatic memory management.
It's important to realize that the underlying principle of qualified immunity - that a person is distinct from their office - is centuries old and a fundamental bedrock of American democracy. It's why Marbury sought a writ of mandamus in the first place, rather than wringing money out of Madison. The qualified immunity regime we have now is not historically representative.
Qualified (for discretionary acts) and Absolute (for ministerial acts) immunity applies to government officers, not the government entity employing them.
In both cases, the theory is that, where the immunity applies, the government employer, but not the employee, is liable for whatever violation of rights occurred. (I think QI has a sensible justification but is applied overly broadly.)
https://www.theguardian.com/us-news/2023/mar/23/ohio-police-...
I think in a very strict interpretation of what "lawful" and "criminal" means, this is likely true. There are civil infractions and there are "criminal offences." But most people, colloquially, equivocate "illegal" with "crime." And if the police engage in unlawful (illegal) activity, they can face penalty. So I'm not entirely sure what you're trying to say. Someone would, of course, need to file a complaint in a court of law, but that doesn't mean that they were "permitted" to do it and can't face penalty as a result of ignoring their lawfully mandated restrictions.
Also recognize, and disclaimer IANAL, that it does not require the Supreme Court to rule on a constitutional violation. The Supreme Court, as I'm sure most of us know, do not have the capacity to take all cases that are presented to them. First a chain of appellate courts must rule after which the Supreme Court becomes the last available avenue, and they typically only accept the "interesting" constitutional challenges... where "was this a constitutional violation or not?" has been deemed ambiguous.
But "lower courts" can, and do often, rule on whether something was a constitutional violation.
So I guess the point is, the police cannot engage in constitutional violations with impunity, but of course in order for them to face penalty a complaint would have to filed and it would need to be taken to trial and the police found guilty.
Now say I go outside in a green shirt. I am now violating the law. If someone pointed this out and said, "that's not legal," they would be correct. A police officer or a court could compel me to change shirt, but I would never go to prison or be fined for wearing a green shirt because the law doesn't define any sort of penalty. It's not a misdemeanor. It's not a felony. It's just not legal.
Similarly, if government agents act in an unconstitutional manner, they are generally not committing any crimes. They are just doing something illegal. The police officers will not face any penalties besides perhaps a poor performance review on their job. The police office itself will not face any penalties besides perhaps, if there are enough serious violations, a DoJ investigation of some sort, which would at most aim to force them to stop doing illegal things.
> How can that be true,
It’s not.
This is its own problem that requires strong privacy laws. If innocent suspects aren't used as a plausibly-indicative red herring, something else will be.
This is absolutely not how public records laws work. Look up the Privacy Act.
Every "hit" shows on your copy of the record, and you should be able to challenge it.
That's a bit extreme. The police were given their identification information, not the contents of their accounts.
False.
Fourth Amendment violations can be the basis for civil liability (or in some cases criminal liability) for the offender, even if no prosecution occurs. Qualified immunity and other issues make this difficult sometimes, but that’s a separate issue from whether there is a violation of legal rights.
But the most familiar remedy for Fourth Amendment violations (the exclusionary rule) only applies to criminal prosecution, and only criminal prosecution of the party whose rights were violated (violating someone other than the defendant’s Fourth Amendment rights will not result in exclusion of the evidence from a criminal case.)
Incredible. This is like the government version of a corporation laundering its bad behavior through an undercapitalized shell company to shield it from liability.
It’s almost as if the language of “politician” and “business leader” create a fake world of hallucination and it’s all just meat popsicles jockeying for economic clout.
That YNews post was met with multiple "so what" and "they make money" kinds of responses, without any apparent alarm at the technology creep.
Perhaps you have heard of a "ratchet" effect, where one law plus one technology plus later, one more law, creates a non-reversible and serious change to the social contract for law enforcement?
Yep, we literally never had any method of accountability of the LASD and this guy finally took that to an extreme
Hope the new guy Luna is keeping up
The article is about the Los Angeles Sheriff’s Department doing unconstitutional things under prior unaccountable leadership, getting only partially curbed by the court, and the post is about other checks and balances created in the wake of this lack of checks and balances