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ulmont posted:
This one is kind of funny to me because it supposedly hinges on passing grammar in a certain way yet all of the conservatives happen to parse it to side with the business owner.
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Apr 3, 2018 06:18
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Opinions! 
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Why even grant cert? The wording is undeniably unclear. How is it not up to the Department of Labor to interpret it?
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Apr 3, 2018 06:46
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Dead Reckoning posted:Nah, her 1-8 dissent in Mullenix v. Luna struck the same chords. I get that people don't like QI for police officers in deadly force cases because the doctrine shields questionable or incompetent conduct from civil liability, but Sotomayor seems to think that, if an officer in the same situation chose not to fire, we should consider the conduct of the officer who chose to fire to be possibly excessive and a knowing violation of the petitioner's rights. All the officers get the same training and follow the same procedures, so in theory, all of them should react similarly, follow the same use-of-force policy, and so on. After all, the police are theoretically supposed to be highly disciplined. If one officer acts in a way that's a major departure from the other officers' behavior, then either they saw something the other officers didn't, or they were a loose cannon who violated the basic rules they were supposed to follow. If two officers think the subject is not a threat that reasonably requires the use of force, and the third officer immediately jumps straight to the top of the use-of-force hierarchy with no warning or intermediate steps, then that's a pretty wide gap in responses - especially since there should be a fairly unambiguous threshold for lethal force.
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Apr 3, 2018 06:53
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Main Paineframe posted:All the officers get the same training and follow the same procedures, so in theory, all of them should react similarly, follow the same use-of-force policy, and so on. After all, the police are theoretically supposed to be highly disciplined. If one officer acts in a way that's a major departure from the other officers' behavior, then either they saw something the other officers didn't, or they were a loose cannon who violated the basic rules they were supposed to follow. If two officers think the subject is not a threat that reasonably requires the use of force, and the third officer immediately jumps straight to the top of the use-of-force hierarchy with no warning or intermediate steps, then that's a pretty wide gap in responses - especially since there should be a fairly unambiguous threshold for lethal force. What is and isn't a threat, and how severe or imminent a threat is, are inherently subjective judgments. If you ask multiple humans to make subjective judgments, even subjective judgments they are highly trained for, you will get different results. That's not just true of cops. That's true of pilots deciding what's safe to fly in or radiologists diagnosing people. It's not like 'imminent threat of serious bodily injury or death' is reducible to a math formula. IIRC all three cops had their weapons drawn. Having an unholstered weapon is pretty far up the use of force continuum, so it's not like the disparity in their response is as wide as you're portraying it.
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Apr 3, 2018 08:26
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Kazak_Hstan posted:What is and isn't a threat, and how severe or imminent a threat is, are inherently subjective judgments. If you ask multiple humans to make subjective judgments, even subjective judgments they are highly trained for, you will get different results. That's not just true of cops. That's true of pilots deciding what's safe to fly in or radiologists diagnosing people. It's not like 'imminent threat of serious bodily injury or death' is reducible to a math formula. Maybe it's because I'm not a legal expert, but the distinction between readying one's weapon and putting four bullets into someone seems rather important.
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Apr 3, 2018 08:53
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Under standard law enforcement training you don’t draw your weapon in response to a known threat (as opposed to a felony warrant apprehension, builing clearing or etc.) unless you can articulate lethal force criteria. There is obviously a difference between pulling a trigger and not. But if you have your gun out in response to something you don’t consider close to a lethal force situation you are in the wrong. It’s not really a matter of “readying” a weapon in anticipation of some remote threat. It’s quite ready in the holster with a round in the chamber, and any reasonably trained police officer should be able to go from holster to on target in around two seconds if they anticipate doing so, maybe double that in response to a surprise. So a different way of phrasing what happened is one of the officers thought he was confronted with a lethal threat and the other two thought they were a matter of seconds away from facing one. That’s not an enormous difference in perception. I don’t necessarily think Sotomayor is wrong in thinking qualified immunity has gone too far. But I do think the fact that only one cop fired isn’t quite the slam dunk people are making it out to be.
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Apr 3, 2018 10:25
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Not saying it’s a slam dunk, but if 2/3 of the officers behave differently, then you deserve at least a trial on the matter.
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Apr 3, 2018 12:05
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Mr. Nice! posted:Not saying it’s a slam dunk, but if 2/3 of the officers behave differently, then you deserve at least a trial on the matter. That seems a little disingenuous; you wouldn't expect them all to volley-fire on the woman, so the first officer firing probably prevents the other two from doing so even if they were about to. I don't disagree re: qualified immunity, but we have no idea if the other two would have fired or not.
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Apr 3, 2018 12:41
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We do have a pretty good idea whether they would have fired - they didn’t. Now, if they only didn’t shoot because she did, that’s something that would come up in trial. The point is she should have been tried. She may very well have been acquitted, but QI in that case is bullshit.
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Apr 3, 2018 13:00
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as applied, the doctrine of qualified immunity has become absolute bullshit. there is no ambiguity that citizens enjoy constitutional protection from unjustified use of lethal force; if any perticular situation was justified or unjustified is to be tried on the facts. the idea that the police shouldn't need to know every contour of the law and get nailed on minor slip-ups is arguable, but that violations of unambiguious rights are given blanket immunity if the circumstances of that violation haven't been clearly ruled upon by a court previously is so ludicrous it defies description.
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Apr 3, 2018 14:55
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Kazak_Hstan posted:Under standard law enforcement training you don’t draw your weapon in response to a known threat (as opposed to a felony warrant apprehension, builing clearing or etc.) unless you can articulate lethal force criteria. There is obviously a difference between pulling a trigger and not. But if you have your gun out in response to something you don’t consider close to a lethal force situation you are in the wrong. That might be the training and doctorine, but the fact that American police officers draw their weapons at least an order of magnitude more often than they fire them suggests that it's absolutely not how drawn weapons are used in practice.
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Apr 3, 2018 17:20
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Stickman posted:That might be the training and doctorine, but the fact that American police officers draw their weapons at least an order of magnitude more often than they fire them suggests that it's absolutely not how drawn weapons are used in practice. That just as plausibly suggests it’s common for cops to draw weapons in response to serious threats, gain compliance, and work their way back down the force continuum. It doesn’t necessarily mean they are just drawing down willy nilly.
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Apr 3, 2018 18:43
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Kazak_Hstan posted:That just as plausibly suggests it’s common for cops to draw weapons in response to serious threats, gain compliance, and work their way back down the force continuum. It doesn’t necessarily mean they are just drawing down willy nilly. No, but it does mean that cops are drawing their weapons usually does not result in shots fired. Regardless of training and protocol rhetoric, it suggest that drawn weapons are used by American leos to gain compliance and to be ready to apply deadly force, as distinct from imminent atomic and immediate use of deadly force. In that light, it to distinguish between the act of drawing weapons and the firing of weapons; the other officer's drawn weapons do not make Kisela's firing reasonable, and the fact that they did not fire (and said that they did not believe firing was necessary) suggests that it was, in fact, unreasonable. Stickman fucked around with this message at 19:56 on Apr 3, 2018 |
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Apr 3, 2018 19:17
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Kazak_Hstan posted:What is and isn't a threat, and how severe or imminent a threat is, are inherently subjective judgments. This can't be true, or else the only conclusion to be drawn is that any use of force is inherently reasonable because the existence and severity of a threat are inherently subjective and can't be judged by any outside party. There has to be some objective component to the reasonableness of belief in a threat, unless you actually believe that anyone is justified in shooting anyone else at any time for any reason.
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Apr 3, 2018 19:38
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No, the existence of subjectivity and ambiguity do not mean that nothing is knowable and everything is equivalent, hth.
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Apr 3, 2018 19:47
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Kazak_Hstan posted:No, the existence of subjectivity and ambiguity do not mean that nothing is knowable and everything is equivalent, hth. Then it sounds like something you should let a jury determine. Alternatively if the individual officers get qualified immunity the department needs to be paying out for every fuckup by them. Might force them to instill some discipline.
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Apr 3, 2018 19:49
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Kazak_Hstan posted:Under standard law enforcement training you don’t draw your weapon in response to a known threat (as opposed to a felony warrant apprehension, builing clearing or etc.) unless you can articulate lethal force criteria. There is obviously a difference between pulling a trigger and not. But if you have your gun out in response to something you don’t consider close to a lethal force situation you are in the wrong. Sounds like something that would be good to work out in a courtroom in front of a jury on a case-by-case basis, where both sides can present evidence regarding police procedures and use-of-force regulations and factual discussions of the actual situation on hand, and witnesses (including the other officers) could be called, and experts could be brought in. Sure, it's a subjective judgement, but if you don't put limits on the reach of that subjectivity then police are basically unaccountable dictators, and where better to judge the extent of the subjectivity than in the courtroom? Besides, the reasoning I listed is already used by police departments. Remember the much-talked-about case where one cop talked down a guy who was trying to commit suicide-by-cop and had him about ready to surrender peacefully, then another cop just came in and immediately shot him, and the first cop got fired for talking instead of shooting? The reason for that was to head off any potential legal challenge to the shooting that might come from comparing the wildly different reactions of the two officers - in order to bolster their case that the second officer's actions were reasonable, they had to establish that the first officer was being unreasonable by not taking that same course of action.
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Apr 3, 2018 20:50
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Kazak_Hstan posted:No, the existence of subjectivity and ambiguity do not mean that nothing is knowable and everything is equivalent, hth. How does an outside party judge an officer's subjective perception of a threat, then.
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Apr 3, 2018 20:54
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VitalSigns posted:How does an outside party judge an officer's subjective perception of a threat, then. By applying their own subjective analysis to the available evidence. Were you under the impression DAs / AUSAs reviewing police shootings, or judges or jurors when those cases go to court, have access to some mathematical model divorced from subjectivity? The sole argument I have advanced here is that the other two officers not firing does not ipso factor render the decision to shoot unreasonable.
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Apr 3, 2018 21:06
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Andrew Kisela v. Amy Hughes reminded me of the Stephen Mader lawsuit, where a cop who decided not to shoot was fired. We live in a judge dredd comic book.
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Apr 3, 2018 21:47
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Wouldn't the Supreme Court destroying Unions mean that Police Unions would be allowed to strike? Someone was saying that the whole thing could lead to public service unions being able to strike.
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Apr 4, 2018 19:38
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Hollismason posted:Wouldn't the Supreme Court destroying Unions mean that Police Unions would be allowed to strike? Someone was saying that the whole thing could lead to public service unions being able to strike. I'm not sure how those two dots connect
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Apr 4, 2018 19:40
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Hollismason posted:Wouldn't the Supreme Court destroying Unions mean that Police Unions would be allowed to strike? Someone was saying that the whole thing could lead to public service unions being able to strike. Nope, not legally anyway. That came mostly from a couple reporters drawing some veeeeery dicey assumptions so they could write "maybe the death of unions is actually good after all" stories, because apparently every bad thing needs one of those takes now.
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Apr 4, 2018 21:11
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There are some angles in which a bad Janus ruling might enable more union action, but if that happened then this Supreme Court would shoot that stuff down because of course they would.
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Apr 4, 2018 21:56
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Double Punctuation posted:RE Oracle vs. Google, I think the current ruling is correct. Oracle might be a garbage company, but Google straight up ripped off Java to make something that wasn’t compatible. That’s a different situation than something like Wine or WSL, which use APIs to translate applications to different systems, and I would consider that fair. Android doesn’t run Java apps, it only covers part of the API, and it enables using Java libraries on their incompatible platform. Overall, I think the only big thing with this case is that APIs are copyrightable, and that’s already done and over. APIs being copyrightable is insane. The United States' legal system is retarded.
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Apr 5, 2018 01:50
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tekz posted:APIs being copyrightable is insane. The United States' legal system is retarded. Blame the Federal Circuit for loving that one up. The next time that issue goes to the 9th it’ll get fixed. Problem is that everyone smart will start Oracling their cases by adding a patent claim in order and dropping it so they can make sure their appeals go to CAFC.
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Apr 5, 2018 05:09
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Kalman posted:Blame the Federal Circuit for loving that one up. The next time that issue goes to the 9th it’ll get fixed. What's up with the federal circuit? Is it full of like, pharma IP people who don't know anything about computers or something? You think they'd at least have clerks with CS skills.
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Apr 5, 2018 06:06
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Ogmius815 posted:What's up with the federal circuit? Is it full of like, pharma IP people who don't know anything about computers or something? You think they'd at least have clerks with CS skills. CAFC is generally acknowledged to be more in favor of strong IP rights than regional circuits. It's not a matter of knowledge—the judges are generally smart, and clerks frequently have technical skills—but rather their ideological priors, which tend to favor finding IP to exist/apply. Also, they mostly do patent stuff, only rarely handle copyright cases, and are generally bad at making good copyright decisions.
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Apr 5, 2018 07:23
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tekz posted:APIs being copyrightable is insane. The United States' legal system is retarded. APIs being copywriteable is not insane and is not a problem going forward. Almost any fair use of an API is going to be ok from a copywrite standard. What google did was clearly not fair use. They acted in bad faith basically from the start.
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Apr 5, 2018 12:07
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Mr. Nice! posted:APIs being copywriteable is not insane and is not a problem going forward. Almost any fair use of an API is going to be ok from a copywrite standard. The WINE project and a host of other open source reimplementations are hosed under this standard though.
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Apr 5, 2018 13:15
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ulmont posted:The WINE project and a host of other open source reimplementations are hosed under this standard though. No they aren’t. WINE’s copyright violation would be considered fair use. There’s a huge difference in the way WINE was created, implemented, and is used vs what google did with android.
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Apr 5, 2018 13:18
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Zoran posted:There are some angles in which a bad Janus ruling might enable more union action, but if that happened then this Supreme Court would shoot that stuff down because of course they would. You can try and kill unions as an entity, but people are still going to organize.
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Apr 5, 2018 13:18
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FlamingLiberal posted:The teacher’s strike in West Virginia occurred in a state that has laws that are basically what a post-Janus ruling would look like. Just do what Australia has done, and make unauthorised collective action illegal* *I presume American states have already done this, but somehow worse.
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Apr 5, 2018 13:31
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Mr. Nice! posted:No they aren’t. WINE’s copyright violation would be considered fair use. There’s a huge difference in the way WINE was created, implemented, and is used vs what google did with android. I don't see how the differences line up very well with how the Federal Circuit evaluated the 4 fair use factors. In fact, I think only factor 3 could come out differently. (1) “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;” Google: commercial use. WINE: commercial use ("the fact that Android is free of charge does not make Google’s use of the Java API packages noncommercial. Giving customers “for free something they would ordinarily have to buy” can constitute commercial use... the question “is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”). (2) “the nature of the copyrighted work;” Google: mostly functional ("this second factor “typically has not been terribly significant in the overall fair use balancing.”"). WINE: mostly functional. (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole;” and Google: copied more than necessary (although this is purely API declaration lines). WINE: ??? (considering the standard is declaration lines). (4) “the effect of the use upon the potential market for or value of the copyrighted work.” Google: market impact (actual and potential; "In evaluating the fourth factor, courts consider not only harm to the actual or potential market for the copyrighted work, but also harm to the “market for potential derivative uses,” including “those that creators of original works would in general develop or license others to develop.”"). WINE: market impact (xref competing Linux for Windows and similar systems to run both Linux and Windows programs on a single computer). UrbanLabyrinth posted:Just do what Australia has done, and make unauthorised collective action illegal* They have.
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Apr 5, 2018 14:01
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ulmont posted:I don't see how the differences line up very well with how the Federal Circuit evaluated the 4 fair use factors. In fact, I think only factor 3 could come out differently. This is a major differing point. The WINE project is not in the business of selling software, licensing software, or selling hardware. They make what is functionally an emulator that allows you to run windows software on various posix OSes. They do not function as an organization in any way like the google android team and do not have the same purpose or goal. ulmont posted:(2) “the nature of the copyrighted work;” You’re tight that this part doesn’t matter as much, but the nature of the use between the two is different as posted before. ulmont posted:(3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole;” and Wine isn’t directly lifting MS code to use because MS doesn’t just give its code willy nilly. In fact, if i remember correctly (although I am out of date) most WINE developers are vehemently against using native MS code in any way in the project. ulmont posted:(4) “the effect of the use upon the potential market for or value of the copyrighted work.” This is the big one, and this is the biggest part. Google stole code and used it to flood the smartphone market. Google has made hundreds of billions of dollars off of their non-fair use copyright violation. WINE has not and will not.
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Apr 5, 2018 14:12
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UrbanLabyrinth posted:Just do what Australia has done, and make unauthorised collective action illegal*
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Apr 5, 2018 14:20
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FlamingLiberal posted:Yes, but even in WV nobody wanted to start arresting teachers I don't know what you're basing this on but the WV GOP would've rounded up every single striking teacher if they could've legally done so.
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Apr 5, 2018 14:28
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Mr. Nice! posted:This is a major differing point. The WINE project is not in the business of selling software, licensing software, or selling hardware. They make what is functionally an emulator that allows you to run windows software on various posix OSes. They do not function as an organization in any way like the google android team and do not have the same purpose or goal. Wine is not an emulator  Dumb jokes aside this is the problem: “the question “is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Wine let’s you run Windows programs without purchasing Windows. That’s an “exploitation of the copyrighted material without paying the customary price”
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Apr 5, 2018 14:36
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hobbesmaster posted:Wine is not an emulator WINE doesn’t profit. The user in the quoted section is google not the end consumer. Google made billions in profit from android. WINE is non-profit by nature. Your latter example falls flat as well because the end user has already purchased software they’re running via WINE on a non-windows OS. The end user hasn’t taken or exploited any copyrighted material.
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Apr 5, 2018 14:42
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hobbesmaster posted:Wine is not an emulator microsoft doesn't own the copyright to the windows programs though, which is the problem in your analysis. interoperability is one of the most common things cited to justify fair use
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Apr 5, 2018 15:02
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