Hacker News Reader

Comment by rayiner | Hacker News Reader

This is just senseless ranting.

1) It's unconstitutional, as a violation of due process, to suspend officers without pay, before they have been adjudicated as having done something wrong.

2) It's probably unconstitutional to impose forfeiture of vested interests as punishment for a crime.

3) Premediated murder requires specific intent to kill. Even if the kid had died, it would most likely be negligent homicide.

4) Removing legal protections for police sounds lovely when you only consider situations like this one, but you forget that for every one instance of something like this, there are dozens of instances of actual bad guys filing meritless lawsuits.

View on HN

>It's unconstitutional as a violation of due process, to suspend officers without pay, before they have been adjudicated as having done something wrong.

Bullshit. The police can throw me in jail before a trial, preventing me from going to work. How's that not a violation of due process?

>It's probably unconstitutional to impose forfeiture of vested interests as punishment for a crime.

True. You could sue them for enough that they could no longer make the payments on their house, though.

> Bullshit. The police can throw me in jail before a trial, preventing me from going to work. How's that not a violation of due process?

Because the police, over time, have put laws in place to protect their jobs even in the case of severe abuse. Why do you think the POA (Police/"Peace" Officers Association) goes around endorsing/attacking local political candidates?

Consider the shootings in Albuquerque. 26 people killed by ABQ cops in the last few years; and not a single officer held accountable. Even when there's unambiguous police video of abuse!

http://www.slate.com/blogs/the_slatest/2014/06/20/albuquerqu...

> Bullshit. The police can throw me in jail before a trial, preventing me from going to work. How's that not a violation of due process?

The amount of process due is largely determined by case law, with judges using a balancing test that balances several factors.

Most to the point in your hypo, one of the factors is the government interest involved.

The government has a much stronger interest in detaining a possible flight risk and processing you through the criminal system than in suspending an officer's pay before some sort of notice and a hearing is given.

"The government has a much stronger interest in detaining a possible flight risk and processing you through the criminal system than in suspending an officer's pay before some sort of notice and a hearing is given."

Police officers can be flight risks. One of the "riders" from Oakland is still at large.

The issue was about cutting off one's livelihood before conviction, and the inconsistency in saying that it's okay to do that to normals, but a horrible atrocity to do the police.

> 1) It's unconstitutional, as a violation of due process, to suspend officers without pay, before they have been adjudicated as having done something wrong.

This is almost certainly not true, especially with modern executive interpretations that 'due process' in the law simply means any established process. Do you have any references for this?

I'm not sure what your reference to "executive interpretations" is about, but the level of process that is due has been determined through case law. The test for the past 30+ years has been a balancing test that considers the following factors:

"Three factors are relevant in determining what process is constitutionally due: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest." See Mathews v. Eldridge.

Here's one case[1] I found in which the Supreme Court appears to allow an officer to be suspended without pay, but due to his having been charged with a felony. In such a case, the government's interest in suspension without pay is greater, and from skimming the opinion, it appears that a significant factor was that a grand jury found probable cause to indict the officer.

[1] http://supreme.justia.com/cases/federal/us/520/924/case.html

>I'm not sure what your reference to "executive interpretations" is about,

http://www.thewire.com/national/2012/03/holder-due-process-d...

>"Three factors are relevant in determining what process is constitutionally due: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest."

These are impossibly vague and open-ended. That's actually my only point. What I'd like to see is a case where the Supreme Court said that a policeman could not be suspended without pay, decided on constitutional grounds.

You are correct that a balancing test is always going to be more vague and open-ended than hard, bright line rules. But the advantage is that it lets the courts adapt to new situations flexibly. This is the entire approach of the "common law" on which our legal system is based. And when you are familiar with prior court cases in which judges have applied the test, the test becomes less vague and open-ended.

For example, there are seminal court cases that lawyers know in which 1) a person has their welfare benefits revoked, 2) a person has their disability benefits revoked, 3) a tenured public university professor is fired, and by knowing those cases, you gain an understanding how most courts would likely view the suspension of pay of an officer with no notice or hearing of any kind. Different facts will obviously change the results, and different courts may come to different conclusions, but the current test and existing case law is not impossibly vague or unworkable.

Your statement ("modern executive interpretations that 'due process' in the law simply means any established process") is not consistent with Holder's statement, as described by the very title of the article you linked to: ("Attorney General Holder: Due Process Doesn't Necessarily Mean a Courtroom.")

Due Process does not require a courtroom. That does not mean that "any established process" will suffice. The amount of process due depends on the context. The open-endedness of the concept is embedded in the phrase itself: the word "due" means "warranted" or "appropriate."

I don't think there's a Supreme Court case specifically involving police officers, but the general idea that public employees have protections against suspension is well-established: http://www.huizenga.nova.edu/course-materials/6240/cases/Con....

The biggest problem with the rant is that it only attacks symptoms of the underlying disease. The underlying disease is the nonsensical War On Drugs. End that and most of these symptoms go away on their own.

No, the war on drugs is not the root cause. If there was no war on drugs there would be a war on alcohol or gambling or sex or homelessness...

- Who benefits from a war on drugs?

1. prison industrial complex - guard unions, vendors for food, uniforms

2. drug cartels - controlling supply like DeBeers does with diamonds

3. drug enforcement agencies (see above)

4. fear mongers - anyone who uses fear as an argument in debate over immigration, gun rights/control, war

- Why does this work?

Some citizens do not recognize that it is happening, some don't know how change it, some are too busy trying to survive.

- Why dont people know that stuff?

Lack of critical thinking skills, logic, applied math.

- Why?

Our schools are segregated by race and wealth. Our curriculum is geared towards testing instead of teaching. Our teachers are poor. Our students are hot in the summer, cold in the winter, and always tired and hungry.

Conclusion: The root cause is that our system of governance has been allowed to become corrupt due to a largely uneducated and poor citizenry.

We are one of the most prosperous nations in the history of humanity.

Why are we poor and uneducated?

(1) Nothing prohibits officers from having to agree to these policies when they join the force. If they don't like it, they can find another job. Members of the military already have to give up certain rights while serving.

(2) A public pension is a public trust. Why should someone who has violated that trust be allowed to keep any interest in it?

(3) Those officers intended to use the force they did when they stormed that residence. That's premeditation. Even if I concede that point, though, negligent homicide still carries a hefty prison sentence.

(4) Giving those legal protections to police has given them the attitude that they are "above the law." This needs to be changed. Big time.

> It's unconstitutional as a violation of due process, to suspend officers without pay, before they have been adjudicated as having done something wrong.

The government isn't actually required to provide 'due processes' unless someone is being deprived of their life or livlihood.

That is to say, I don't believe employees of any stripe (government included) need to go through criminal processing before being suspended or fired.

More so, I'm not a lawyer, but I'm not sure what the specifics of 'due process' are. Simply, any non-arbitrary written policy can be considered a due processes. Its' how boarder guards can get away with harassing people when they step out of line at the TSA.

When the parent says "adjudicated" he does not mean one needs to go through a criminal proceeding. If there is a property interest involved[1], the government cannot deprive you of it without due process. The level of process can vary depending on a balancing test and the facts involved, but usually will require some sort of notice and pre-deprivation hearing.

[1] An at-will employee will not have a property interest, but a government employee with a contract will.

> 1) It's unconstitutional, as a violation of due process, to suspend officers without pay, before they have been adjudicated as having done something wrong.

Nope, not unconstitutional, not even close. The constitution has literally nothing to say about suspending someone's ability to work due to arrests and legal proceedings, because it's not a set of guidelines for prosecution, it's a foundation for lawmakers and the judicial system by which to form and judge laws and crimes.

> 2) It's probably unconstitutional to impose forfeiture of vested interests as punishment for a crime.

Assets are frozen during criminal proceedings all the time. Ironically, especially for drug-related prosecutions (big ones, albeit, and for good reason).

> 4) Removing legal protections for police sounds lovely when you only consider situations like this one, but you forget that for every one instance of something like this, there are dozens of instances of actual bad guys filing meritless lawsuits.

TOTALLY. Luckily, we have the magical judicial system, which is built to handle cases, you know, individual instances where the law is either broken or does not provide enough clarity, and thus, case trial can help to narrow the meaning of laws. They can also award compensatory and punitive damages, which seem more than justified in this particular instance.

> Premediated murder requires specific intent to kill. Even if the kid had died, it would most likely be negligent homicide.

Honest question: I'm walking past the somebody's house with an assault grenade in my hand. I feel miserable and I throw the grenade into the window. 5 people die. Is that negligence? I didn't know whose house is it, is there any people there, etc.

Your own honest question has an implicit answer in the fact that you can't indiscriminately throw shit into peoples property. Even if it was a barbie doll you threw in there and it killed 5 people.

It depends. Are you a cop?

For starters, you should read the Illustrated Guide to Law (http://lawcomic.net/guide/?page_id=5) and perhaps buy the print copy of the book. Focus on Chapter 6, about Mens Rea, and Chapter 8, Actus Reus.

Then figure out whether the jury is going to believe that you didn't intend to harm anybody when you threw a grenade into a house.

Awesome book, thanks, exactly what law idiots like me need.

I actually ignored the jury factor, my fault. When police officers brutally kill someone they're still "our" guys, good guys.

Upon applying the changes 1 and 3 you suggested, this seems to be a reasonable solution to start from. At the end of the day we need some degree of accountability. Currently we have practically none.

Reply on news.ycombinator.com