Is "Qualified Immunity" In Trouble?

Discussion in 'Off-topic Political' started by moe mensale, Aug 2, 2018.

  1. moe mensale

    moe mensale Well-Known Member

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    This is an unintended consequence of those 2016 Trump rallies that got bashed by the anti-Trumpers while the police stood by and did nothing. Or did the police actually do something more sinister?

    https://www.americanthinker.com/blo..._and_watched_attacks_on_trump_supporters.html
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Two Attendees—Hernandez and Haines-Scrodin—claim that San Jose police “directed [them] to walk through the anti- Trump protesters, rather than . . . allow[ing] [them] to turn south, in the direction of safety.” “Soon after following the[se] directions . . . , [they] were struck repeatedly in their faces and heads by anti-Trump protester, Victor Gasca.” “Several other anti-Trump protesters also battered Hernandez and Haines-Scrodin, while Gasca kept up his assault.” As a result, “Hernandez suffered a broken nose [and several] abrasions,” and “Haines-Scrodin . . . suffered [various] bodily injuries.”

    Another Attendee, I.P., claims he experienced similar violence due to the City Defendants’ poorly conceived crowd-control plan. Just like Hernandez and Haines-Scrodin, he “exited the east-northeast exit of the . . . Convention Center, where a line of police officers prevented [him] from turning right, to safety” and instead “directed [him] to turn left, into the anti-Trump protesters.” “I.P. was struck in the back of his head” by one protester and “tackled . . . to the ground” by another.” “After being attacked, I.P. made his way [back] to [the] police skirmish line, and was only later allowed to cross the line to safety.”

    According to the Attendees, the Officers were clearly aware of the violence outside the Convention Center. “In fact, as early as [6 p.m.] the day of the Rally, the San Jose police warned all officers deployed around [the] Rally that assaults had already been reported outside the [Convention Center].” During the Rally, the Officers witnessed the violence firsthand, or were at least informed of it, but they did nothing.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    “As a general rule, members of the public have no constitutional right to sue [public] employees who fail to protect them against harm inflicted by third parties.” . . .
    An exception to the rule applies when government employees “affirmatively place[] the plaintiff in a position of danger, that is, where [their] actions create[] or expose[] an individual to a danger which he or she would not have otherwise faced.” Kennedy, 439 F.3d at 1061 (citing DeShaney, 489 U.S. at 197) (internal quotation marks omitted). The affirmative act must create an actual, particularized danger, id. at 1063, and the ultimate injury to the plaintiffs must be foreseeable, Lawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003). The employees must have also acted with “deliberate indifference” to a “known or obvious danger.” Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011) (citation and internal quotation marks omitted).
     
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  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    This Court has found similar affirmative acts sufficient to state a claim under the state-created danger doctrine. In Munger, for example, the officers “affirmatively ejected [the decedent] from a bar late at night [into] sub[-]freezing [temperature]” and “prevented [him] from driving his truck or reentering [the bar].” 227 F.3d at 1087. That the cold would eventually kill him was certainly foreseeable as he was “wearing only a t-shirt and jeans [and] was intoxicated.” Id. The Court ultimately held it was “indisputable . . . that the officers placed Munger in a more dangerous position than the one in which they found him.” Id. (citation internal quotation marks omitted).
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    My commentary. There was no case directly on point to raise for the "clearly established law" part of the qualified immunity inquiry.

    Based on the allegations in the FAC, which we take as true at this stage of the proceedings, we also find that this is “one of those rare cases” in which the constitutional violation “is so ‘obvious’ that we must conclude . . . qualified immunity is inapplicable, even without a case directly on point.” ​

    Which I think under the circumstances of this case was the right call to make.
     
  7. UtiPossidetis

    UtiPossidetis American

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    I think its an unusually clear ruling from the 9th that accords with the law broadly - IF the plaintiffs can show in Court that their assertions and allegations are supported that the police actively barred them from seeking safety.
     
  8. diamondback

    diamondback Well-Known Member

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    I forget the case but there was a case taht i think made it to the supreme court that said police do not have a duty to protect which is one thing i always use in second amendment arguments.
     
  9. ctdonath

    ctdonath Member

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    Benign negligence is one thing.

    Actively & maliciously guiding innocents into a dangerous situation where protection will be deliberately withheld is quite different.

    Sending peaceful & trusting protesters into a violent mob, with no reasonable means of egress, and wantonly standing idly by while they get pummeled, is the latter.

    The state at large needs also realize that such scenarios persuade the aggrieved into "taking matters into their own hands" & "law of the jungle" precisely because a core tenet of the social contract has been broken: the state gets a practical monopoly on power because the people trust it will be used benevolently; abuse thereof (active or neglectful) negates that monopoly.
     
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  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Correct, but as ctdonath and the Ninth Circuit point out, the police cannot create the situation and then ignore your peril.

    For instance, if you are drowning, they can watch you drown.

    If they throw you out in the water handcuffed, then watching you drown is not something they are privileged to do.

    For instance, they can ignore a woman's cries for help.

    They cannot dump her off in a very dangerous area at 2 a.m. and then ignore her cries for help.

    See the difference? The second one actually comes from a real case, cited by the Ninth Circuit.
     
  11. Clark

    Clark Well-Known Member

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    Good. Too often qualified immunity is treated as absolute immunity.
     
  12. ctdonath

    ctdonath Member

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    Correct me... IIRC there's a legal angle that you're not obligated to render aid, but if you start to then you _are_ obligated to see it thru. Ex.: someone collapses, you don't have to begin CPR, but if you do begin CPR then you do not have the option to stop after a couple minutes with "meh, I'd rather not bother with this".

    In a sense, the police had started giving aid by directing protesters to what was indicated to be a safe area. When that proved anything but safe, police were obligated to provide or guide to safety (instead, they apparently stifled guffaws that pro-Trump types were "getting what they deserved").

    Forcing SCOTUS to clarify "not obligated to protect" will have unintended consequences.
     
  13. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    ctdonath, good point about the rule of law. If I cannot have any reasonably placed confidence that my adversaries will obey the law and that the government is allowing them to break it without consequence then what's to stop me from breaking the law to hurt my enemies if I think I can get away with it ?

    The law of the jungle, indeed.
     
  14. diamondback

    diamondback Well-Known Member

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    This sounds like a punchline, but i wonder in that actual example that happened if they took a white liberal woman and dropped her on in an area like detroit to show her what liberal policies do? I always say that is how to cure liberals.