DA, sheriff, who shared woman's nude photos on phone are covered by QI
oregonlive.com
oregonlive.com
It's horrifying and clearly not the right way of handling the "well we don't want everybody suing the DA that prosecuted them" problem.
How do you square your comment with that observed reality?
Having said that the example, there was no warrant and the sheriff had no reason to do what they did within the normal function of the job (sharing people's nudie pics...) ... that should be EASILY outside the bounds of QI
This case seems like the poster child where IQ enters he realm of of absurdity and degrades people's lack of trust in institutions. It also seems like an example where a more reasonable form of QI would thrive.
It requires that a court had previously ruled that the specific action was a violation of constitutional rights. It had not done that on this specific action previously, but did in this case.
So they get QI here because of a lack of a previous ruling, but if the someone were to do the same thing in the future, they would not be given the benefit of the doubt.
Why do we need QI for, e.g., city clerks? Because otherwise every permit issuing decision that they make as part of their job that pisses someone off would result in a lawsuit.
Why do we need QI for police committing murder? We don't.
No, it didn't; QI was established in a case accusing Nixon White House officials of corruptly steering government contracts, which is not “doing your job appropriately”.
And QI doesn't apply to everything, but it is a giant catch-22:
It covers anything without clearly established law on the violation of rights (usually, court precedent with very similar circumstances) at the time of the act. But, simply by its own operation, it prevents cases in which it is applied from establishing such law, because it produces dismissals before the merits are reached. (In some cases, lawsuits against the government entity could establish the violation, but their are a different set of immunities there, plus a hugh propensity for cases with even a shadow of a chance to settle without establishing precedent.)
> Why do we need QI for police committing murder? We don't.
QI doesn’t apply to criminal charges (other cops covering for cops and prosecutors not wanting to hurt their relationships with cops are the only “immunity” cops have there, but that alone is a bigger problem than QI; it does compound the problem with QI, because criminal cases are another venue not subject to QI where the clear precedent on rights could be established, if prosecutions actually occurred, and also because the resort to civil lawsuits that QI blocks is, for cops more than any other class of public officers, a workaround for the criminal justice system being loathe to act against them.)
Usually, QI leads to a dismissal before the merits are reached; the entire basis for QI is that it is not just a freedom from liability, but a freedom from the risk of having to endure trial. Even if the trial court decides QI doesn't apply and would be inclined to move forward to the merits, that decision on QI is subject to immediate appeal before the case moves forward, per the Supreme Court in Mitchell v Forsyth (1985).
So, even if this case is an exception, QI is very much a catch-22 that is a barrier to establishing the same clearly established law that it requires before officers can be held liable.
1. Never give a law enforcement officer verbal (or certainly written!) consent to search your person or your property. Make them get a warrant. If they threaten something like "We can take you to jail or we can clear this up right here if you give us consent to search" then let them take you to jail.
2. Never volunteer information to law enforcement or answer their questions (beyond what's required by law, e.g. identifying yourself in some jurisdictions) unless your lawyer is present.
3. Never have marijuana in your car if you're driving across a border from a state where it's legal to a state where it isn't. State troopers sit at those borders and look for any excuse to pull you over because it's an easy win for them.
4. Be careful in eastern Oregon because while it's not densely populated, it's still very Red. They have to follow state law w.r.t. marijuana but that doesn't mean they won't try to find creative ways to screw you over. The most surprising thing to me about this case is that most of the malfeasance was on the Oregon side rather than the Idaho side.
You might get the cop that takes an hour to remove all of the seats and scratches things up, and they aren't going to help you put it back together.
Maybe you had a passenger who had something fall out of their pocket and end up between the seat cushions that you don't know about.
https://www.kxlf.com/news/national/an-inside-look-at-colorad...
I don't see resigning as a bad thing (not that you're representing it that way); if you want to resign because you feel like you need/want to violate someone's rights, you shouldn't have been there to begin with.
Is a full capacity police force with a significant number of 'bad apples' better or worse than one down by half, or more, with little to no 'bad apples'?
For example, the partners are automatically accomplices and liable
Any discrepancy in police reports and footage/evidence triggers the same civil violation and criminal violation
this is useful because now we dont need all the fanfare of going to trial just to find out the actual aggression was called it ‘justified’ using an opaque standard
control behavior by regulating the intermediary. In this case I can think of many more intermediaries that civil and criminal liability can extend to for the actions of one bad apple
partner, department, union, pension, municipality
and an offenders list that follows the officer ideally to keep them off of the neighboring town’s force, and ostracized from most living arrangements
I think of nodes in a graph, the officer being one node, but now all the surrounding nodes at risk of being affected will keep the one officer in line, and demand reforms in the department for greater than citizens, judges or the legislature can do
I was also thinking to involve the federal government. Municipalities ability to raise capital becoming much more expensive based on how their officers act
You sure you want the Feds involved? lol :(
Citation: cop in my family repeats those lies.
This is how QI works.
Yours cuts off about half the bit, which is frustrating.
>But all three judges upheld a lower court’s decision to grant Carpenter qualified immunity and dismiss the woman’s lawsuit.
This is confusing, if there was no warrant, and they violated her 4th amendment rights… how do they get QI?
Even if everybody with a brain can look at the facts and say "well that's obviously a violation of rights" the court can happily say "nope there is some minor factual delta that means that we haven't explicitly ruled on this exact circumstance so how could a cop ever know that they were violating rights?"
Because the sharing of the photos with other people wasn't established by the evidence, the court was just ruling on whether the DA had violated the plaintiffs rights by transferring the data dump from the plaintiff's phone to the sheriff, and whether that violation was obvious/established enough from prior court rulings to revoke QI. It had nothing to do with sharing the photos themselves with anyone (the DA didn't know the data dump had the photos when he shared it).
I've come across compromising data over the years--and never have I referred to it in any way that would permit identification of the person. Either it warrants going to the police or it stays private, there's no in between.
Which is all just to say: don't talk to cops and don't agree to searches, even if you think dating one will help you get out of trouble.
Who do you call when you're being harassed by the people you're supposed to call when you're being harassed? ... Luckily for her, she had a cousin that was a 20-year NYPD veteran. Him and some other veterans cops went to "have a talk" with the younger cop. Problem solved, but it was a total nightmare for her.
The people who trust cops are the most at risk of this. Those who don’t know their rights or who are afraid to assert them are also at risk.
The people who have already internalized this statement are least at risk.
But we are all at risk when police are corrupt. And the fact that police who do these things still have jobs means that the number of corrupt officers is far larger than it should be.
Not surprisingly, clever lawyers find a way to make something slightly novel in most every one of these cases, at least in one particular circuit, and so basically nothing of consequence happens.
This entire doctrine only exists because the Supreme Court invented it, 8-1, in the 1960's to prevent Freedom Riders from suing courts and police officers who arrested them for trying to racially integrate public places. And somehow it's gotten worse over time.
The modern over-expansion of QI actually started in 1982:
>The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982).
Since then, while several justices (Kennedy, Scalia, Thomas, Sotomayor ) have sometimes dissented and criticized the over expansion of QI, the overall court doesn't seem to want to touch it.
https://en.wikipedia.org/wiki/Qualified_immunity
https://www.cato.org/policy-analysis/qualified-immunity-lega...
Person running down the sidewalk pursued by someone shouting "stop, thief!" gets tackled by a cop and cuffed. Turns out to be mistaken identity or they'd done self-checkout. Rights violation? Yes. Good faith? Also, yes.
Not sure that'd be a rights violation. The cop would be able to say they had reasonable suspicion that a crime was being committed justifying the detention. Excessive force is a possibility depending on the details, such as the extent of the injuries that resulted from being forced to the ground or if the cop ordered the runner to stop before tackling them.
Of course, in reality it's moved well beyond that into the realm of absurdity.
Ignorance of the law is no excuse for civilians, police aren't held to the same standard.
That being said, there's no justification for sharing the nudes. Doesn't matter if you have a warrant, that's still wrong.
The net effect is that it is remarkably difficult to sue cops who violate your rights since there is almost always going to be some minor factual thing that makes your case "unique".
I also think we should find a way to reform the function of QI as a protection for civil servants.
But.
This is why moral leadership matters in government, at every level. The government’s agents will always possess enough power to hurt or embarrass or kill its citizens and the truth is that no amount of fear of prosecution will fully take that away. The particular law enforcement office in this case has a massive cultural problem if it would tolerate this kind of thing in the first place. If the officers involved knew their superiors would discipline the hell out of them for engaging in this kind of behavior, it wouldn’t happen nearly as much.
But the reform there isn’t just to fix the law, it’s to fix the process of selecting and incentivizing law enforcement leadership, too. Sheriffs and prosecutors should be expected to run on a zero tolerance policy for this kind of evil and be hauled in front of city council to testify every time it happens. It’s embarrassing for a community and we should all expect better of the people we trust with our public safety.
I understand that there are recruiting challenges with LEO’s and it can be tenuous for a mayor to get too confrontational with the sheriff. Maybe we need an independent oversight board or something. But we can re-incentivize good behavior, and then expect our leaders to exhibit it.
From my perspective - honor and integrity in the government is clearly gone. The moral leadership has exited the building, and is currently getting buried in the ditch out back. There's not even enough accountability to pretend anymore.
It's going to be a long, hard road back to anything that approaches "ok", and my guess is it's going to have to happen at the extreme local level.
Americans apparently don't want classy government. Americans want reality TV in the white house.
How do you convince 70 million Americans who aren't interested in listening to external wisdom, of anything?
We, the people who love civility and good governance and peace, have work to do. But social norms can and do change.
Christ, Clarance Thomas frequently signals that he wants to roll back the legal protections for interracial marriage and just look at his marriage.
As soon as the House puts forward a bill to ban interracial marriage, you can rest assured that 5% is suddenly more like 50%. We are going backwards and they've been eagerly waiting to dig out the old social norms. Assholes on twitter are already back to using "retard" as a slur, as if 4chan is a role model.
As for "retard" it's always been an insult within my life. Xitter has become the domain of assholes, it's not surprising you see it a lot more than you used to.
Yes, but I think it's pretty clear the "majority" of Americans don't consider moral leadership to be of much value, certainly not compared to the price of eggs or making sure trans people use their "God ordained bathroom".
They excuse Trump's immorality because they don't see it as immorality. They might talk about it in those terms, but that's just because they know that things like having sex with a porn star while married is generally considered wrong. It's not actually used as part of the evaluation of how good or bad a person is.
So you're saying that because they accept Trump as their leader, therefore whatever he does is "moral", regardless of what former "morality standards" they might have had? (I brought up Judeo-Christian because that's where traditionally American moral standards have come from, the 10 Commandments and all.) Or are you saying that all along their moral standards have been "to the strongest" (more Darwinistic in nature).
Bob Altemeyer explains this mindset much better than I could in his book The Authoritarians: https://theauthoritarians.org
Certainly Trump has normalized certain behavior (like over racism, sexism, ableism, me-first-and-fuck-everyone-else capitalism/Americanism, fascism too though people don't understand it as that) that society looked like it was gradually getting away from over the last 50 years. It's sad to see how quickly all that resurfaces with only a little encouragement.
For them, deep state Marxism and expensive gas is a moral failing as well.
If you think taxes are theft, then that makes politicians morally bankrupt.
Would you pick a cop with a history of sexual assault, or one that robs you?
Who made this rule?! So a court would have to rule on each and every possible abuse of the law by a government official??
> Jessop v. City of Fresno: The Ninth Circuit granted immunity to the officers. 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.”
> Corbitt v. Vickers: ... the court went on to say that “[n]o case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.”
> Kelsay v. Ernst: The majority noted that there were no prior cases involving the “particular circumstances” of this case; that is, no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”
> Allah v. Milling: The appellate court agreed that the prison guards violated Allah’s rights, specifically holding that this treatment was unlawful punishment because Allah’s treatment “cannot be said to be reasonably related to institutional security, and Defendants have identified no other legitimate governmental purpose justifying the placement.” Nevertheless, the court said the guards were entitled to immunity because there was no prior case concerning the particular disciplinary practice employed by the prison.
It's basically judicial Calvinball. "Oh, established case law says you can't kill an innocent person at 6:35pm, but it's not clearly established you can't kill an innocent person at 6:36pm!"
This is the trick that courts use in qualified immunity cases. You can't just say "well obviously this is a violation of 4th amendment rights by any person's plain reading." You need a prior case where a judge found this specifically. And that prior case needs to match the facts of the current case basically exactly. Any minor difference can be leveraged to argue that this case is a new set of facts and that there is no prior case that would inform a cop that what they are doing is in fact a violation of rights and so they are immune from civil action.
The outcome of each one of these cases is that the cop gets off scot free and the court says "the next time this specific thing happens under our jurisdiction you can sue" but that specific thing never happens again for the rest of time because the boundaries of that specific thing are so tight.
How far can you take the "precise case" thing then? Does it just apply to the specific action that was done? How far can they legally stretch what's considered to be "novel"?
For us mere mortals to be punished, we don't even have to know the law. For a cop to be punished, there has to be precedent. The funny part is that this situation basically means the first cop to do any illegal act will always get away with it.
Starting with the mid-aughts conservative turn of the Supreme Court (basically the time that O'Connor is replaced by Alito) it has grown to cover pretty much every act that law enforcement takes, with the modern standard being, basically, "your circuit needs to have found this particular violation to be unconstitutional already for it to count." The recent Supreme Court case finding that President's are immune to prosecution for "Official Acts" has a similar philosophical (though not legal) basis.
For example, if a police officer in 1994 arrested someone for violating the Gun Free School Zones act (struck down as unconstitutional in 1995), should they be personally liable for the damages? Should the judge who decided the case?
Similarly, if a police officer in NYC arrested someone in 2018 for violating the ban on "gravity knives" (struck down as unconstitutional in 2019), should they be personally liable?
If a police officer in Washington, DC arrested someone for violating the city's ban on handguns in 2007 (struck down by the Supreme Court in 2008), should they be personally liable?
Would it be a good thing if police officers and officials refuse to enforce Washington state's ban on "assault weapons", or Oregon's magazine capacity limit, because the "conservative turn" of the Supreme Court means that the law might get struck down as unconstitutional, and then they'd be personally liable for the damages?
I think it's clear that QI sometimes leads to bad outcomes, but honestly, I'm not sure how the system would function without some similar concept.
You’re not sure how Colorado could possibly exist?
Yes, police officers will have to deal with more lawsuits, but that's not an outcome that bothers me particularly. Society grants them a great deal of rights to violence that the rest of us do not have, they should likewise face greater scrutiny for their choices, or they are not worthy of holding that responsibility.
Note that Colorado removed QI by law, and made officers personally liable (up to certain limits) and seems to not be any sort of anarchy.
This is not a sliding slope, its just acknowledging police are also just people.
There are cases where it's reasonable for a police officer to enforce a law that turns out to be unconstitutional and there are cases where it's not. Distinguishing between those cases is what the courts are for. Giving officers blanket immunity is not the way to handle it.
Every time I'm out and about, I have to wonder if I'm making some mistake that's going to get me in trouble with the law. Why should police be exempt from this?
we do not allow soldiers to get away with war crimes because of it, why should police be any different?
Not that I’m in favor of any of this, just saying the analogy has diverged from the topic at hand.
often legal by their countries law hence the excuse "i was just following orders/my laws" being similar to cops "following the law" even in the clear face of it being wrong
The Sheriff did lose his job when he lost the election in 2020, and presumably this played a role in that election? But that's not a legal consequence, that's a political one.
Every public official swears an oath to uphold the US constitution. At that moment it is clearly established that you are bound by the restrictions on exercise of power as enumerated in the constitution.
That's the best case I've got for the horrific invasion of privacy that this woman and her boyfriend suffered.
That was years before this illegal seizure and actually might be related as there were numerous complaints about his activities during the takeover from other people in the department and Haley Olsen, whose pics were stolen and shared was dating an officer that was on the Sheriff's 'shit list'.
Dude was all around corrupt: https://www.opb.org/news/article/eastern-oregon-grant-county...
Beautiful place to visit, though!
> In a separate concurring 9th Circuit opinion, Circuit Judge Daniel A. Bress agreed that the court should uphold the trial court’s granting of immunity and dismissal of the claims. But he wrote that the panel should have simply affirmed the lower court ruling and not gone on to find a constitutional violation.
> It’s unclear, Bress wrote, whether Idaho authorities are more at fault, for example. “In my respectful view, prudence here dictated that we decide only what we needed to decide,” he wrote.
Just in case you were curious.
They'll steal your possessions and drain your bank account, and get away with it.
They'll share your nude photos and get away with it.
Thin blue line or whatever though.
Good news: there is!
Bad news: a large swathe (in the majority, actually) of Police Department Collective Bargaining Agreements forbid the use of this registry in making hiring decisions...
On that note, theoretically, could all eligible residents of a town be deputized and would they all be covered by QI?
This sets a precedent that pretty much says you can get away if a police officer wants to poke at your pictures and even start gossips, with zero legal consequence. Sure, that does not matter to "good" police officers, but I wish the world only has good officers.
0. https://www.youtube.com/@thecivilrightslawyer/videos
1. https://www.youtube.com/c/WeThePeopleUniversity/videos
> Oregon DAs are elected in every county and are required to stand for election every four years, thereby maintaining accountability to the public they serve.
While the moral satisfaction of this DA being smacked down by a judge might be greater, far less misconduct would occur if the voters could be bothered to throw the perp's out.
But somehow, the even the concept of the voters being capable of that...just seems to have vanished from the American mindset. And when the voters can't be bothered - well, you may have a Democracy, at least on paper. But it won't stay one.
https://www.justice.gov/usao-nv/pr/former-reno-police-office...
Wouldn't that be copyright infringement?
Bloody idiot.
I would be shocked if voters actually cared enough to kick them out of office.
Related but this should be required viewing by any citizen of the United States:
We should be able to rely on the law to keep the contents of our phones private but so far we can't. Don't put nudes on your phone (or just don't have nudes laying around at all!)
Why should good cops subsidise corrupt cops (with a hefty overhead for the insurance companies)? Doesn't that create an additional incentive to be corrupt? Many people are more sensitive to punishment than reward: I'd expect having your premiums go up because a fellow officer got done for abusive conduct would feel like arbitrary group punishment.
Teachers buy school supplies, tradesmen buy their own tools, police can buy insurance.
“I clearly made a mistake in 2001,” Carpenter told the Eagle. “I took immediate measures to correct that behavior and make it right with the victim. Since then I have been diligent with the courts, other attorneys, and the public in building a relationship of trust and veracity.”
Yeah. He learned nothing. These kinds of people learn nothing because we only give them slap on the wrist "punishments". We tell them they were naughty...and nothing else happens to them. He continued his career without any real impact from that 2001 event, just as he will after this event.
Is it any surprise at all that they don't behave better, when it's clear they will never actually face a consequence?
He said he will protect women if they want or not, so he surely will something, right?