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If the fire department reasonably believes my life is in danger I really hope that is the thing in the front of their mind, not whether they will lose their house or kid's college fund if they do something to help me.
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Apr 13, 2018 04:07
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Ogmius815 posted:This is a great answer and is fully responsive to my question, but I'd quibble that that's got to be different than sovereign immunity in the federal constitutional sense right? Georgia can exempt municipalities from George state tort liability (and hence the need for 1983), but its laws can't affect the meaning of sovereign immunity as a matter of federal law. Right? Yes, but - what general body of federal tort law are you expecting to be able to use to sue a Georgia municipality that isn't 1983, in this very much post-Erie world? That is, the normal doctrine of respondeat superior doesn't work for 1983, because the Supreme Court says it doesn't, and there's no generally applicable federal cause of action because Congress hasn't passed one.
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Apr 13, 2018 04:19
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ulmont posted:Yes, but - what general body of federal tort law are you expecting to be able to use to sue a Georgia municipality that isn't 1983, in this very much post-Erie world? I can see that there isn't any such law currently. I'm wondering if as a matter of policy it wouldn't be a good idea to make one. So Congress could pass the "Municipal Tort Claims Act of 2019", which lets private citizens sue municipal agencies under a respondeat superior theory when municipal employees cause them injury, preempting contrary state law which prevents this. Is there a constitutional problem with that? Alternately, is there a reason why it would be a bad idea? The idea would be to let people wrongfully hurt by city employees recover without any of the harm that would result from getting rid of official immunity. Ogmius815 fucked around with this message at 05:32 on Apr 13, 2018 |
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Apr 13, 2018 05:18
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A firefighter damaging property shouldn't be a qualified immunity case anyway. It's not that they're violating a right that wasn't clearly defined, there's just a public safety/exigency exception to your right to not have someone smash your door open. Restitution for the damages ought to come from society at large for the sake of fairness, but that's a separate issue. Qualified immunity does make sense when there's an actual legal right that's unclear. For example, do you have a reasonable expectation of privacy when driving a rental car and you're not on the contract? We'll find out when Byrd v United States is decided, but it's fine for qualified immunity to block a suit against the cop that did the search. It's abused in shooting cases since "If you aren't threatening major bodily harm to someone, you have a right not to be shot by the police" isn't an unsettled grey area. The thing that's actually in dispute is "In this particular situation, did the shooter have a reasonable belief that the victim was about to kill/injure someone?". That's a fact question, not a law question, and a judge isn't qualified to answer it.
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Apr 13, 2018 05:24
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Ogmius815 posted:So Congress could pass the "Municipal Tort Claims Act of 2019", which lets private citizens sue municipal agencies under a respondeat superior theory when municipal employees cause them injury, preempting contrary state law which prevents this. Is there a constitutional problem with that? Alternately, is there a reason why it would be a bad idea? As for a constitutional problem - what's the Article I (or later amendment, if you must) authorization for that act? It appears almost completely intra-state activity, meaning federalism concerns are at their highest and the Commerce Clause may not apply. As to a bad idea, not completely sure; I'd have to see data about how the states that have differing laws work things out (after all, every state has some sort of a [State] Claims Act) before being convinced one way or the other. Here in Louisiana the legislature / city council just doesn't appropriate money to pay settlements or judgments, leaving a real problem in actually collecting any amounts owed (last I checked, New Orleans was something like 20 years behind).
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Apr 13, 2018 05:41
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If money might be involved, you can be sure that the commerce clause will be held as a viable reason. "Well, the city's teacher's pension fund owns a 5% stake in a company based out of state, so..."
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Apr 13, 2018 11:53
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Ynglaur posted:If money might be involved, you can be sure that the commerce clause will be held as a viable reason. "Well, the city's teacher's pension fund owns a 5% stake in a company based out of state, so..." Yeah, I feel you, but on the other hand Morrison and Lopez.
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Apr 13, 2018 13:13
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Foxfire_ posted:"In this particular situation, did the shooter have a reasonable belief that the victim was about to kill/injure someone?". That's a fact question, not a law question, and a judge isn't qualified to answer it. I'm pretty sure judges decide reasonableness all the time.
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Apr 13, 2018 14:20
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Some possibly silly questions. 1. Is evidence provided by a foreign power admissible in court? Suppose China hacks/purchases emails/documents and then hands them to the CIA/DOJ through an agent. Is it usable at all? 2. I was wondering about that "gunbook" facebook clone that popped up in the crazy emails thread. What exactly stops the FBI/Or Similar from creating a facebook clone that purely exists to collect a database of likely gun nuts? 3. Suppose a law is passed that mandates that all gunowners register every gun they own with a federal database and you have say a year to do it; after that period expires you can be hit with fines/charges. Does Congress have the power to have made it a part of that law that says something like: "Law enforcement may investigate/scrape your social media/facebook accounts to see if you are a likely unregistered gun owner and this justifies further investigation into you", rather than relying on a tip off or similar.
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Apr 13, 2018 21:20
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Raenir Salazar posted:Some possibly silly questions. These are really for the general legal questions thread - https://forums.somethingawful.com/showthread.php?threadid=3266659 - there's nothing SCOTUS-specific or high-profile case about them at all. Raenir Salazar posted:1. Is evidence provided by a foreign power admissible in court? Suppose China hacks/purchases emails/documents and then hands them to the CIA/DOJ through an agent. Is it usable at all? The acronym for evidence is BARPH: • B: Best Evidence • A: Authenticity • R: Relevance • P: Privilege • H: Hearsay For the sort of evidence you're talking about, there would potentially be problems with several parts of it. The quotes here will be from the Federal Rules of Evidence; states of course can change much of this if they like. Best Evidence - The original of a document is preferred. However, there is an exception: "A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate." Here, there could be some genuine questions about the original's authenticity. Authenticity - Just because a document says it's an email from Ulmont to Raenir Salazar about bribing the President of the US, that doesn't mean it is. "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Normally one would do that through testimony (although other means are possible). Here, without either the Chinese purchasers or the original owners of the documents in court to testify, that would be a problem. Relevance - This would likely be no problem; why would anyone bother trying to bring in irrelevant documents? Privilege - Also likely no problem unless the documents were taken from attorneys (or, state depending, physicians, counselors, clergy, etc.). Hearsay - Unless an exception or exemption applies, you cannot offer an out of court statement for the truth of the matter asserted. To translate to English: if I say "John killed that guy", you can't say "Ulmont said John killed that guy" in court to prove that John killed that guy; you have to get me there. There are a million exceptions and exemptions I will not bother going through here, but it would be a serious problem as the underlying writers of documents would not be present in court. If you could somehow overcome the Authentication and Hearsay hurdles, though, I don't think there would be any flat bar against introducing those documents. Raenir Salazar posted:2. I was wondering about that "gunbook" facebook clone that popped up in the crazy emails thread. What exactly stops the FBI/Or Similar from creating a facebook clone that purely exists to collect a database of likely gun nuts? Nothing. The FBI already runs child porn sites to catch pedophiles. https://arstechnica.com/tech-policy/2012/04/the-hidden-side-of-your-soul-how-the-fbi-uses-the-web-as-a-child-porn-honeypot/ Raenir Salazar posted:3. Suppose a law is passed that mandates that all gunowners register every gun they own with a federal database and you have say a year to do it; after that period expires you can be hit with fines/charges. Does Congress have the power to have made it a part of that law that says something like: "Law enforcement may investigate/scrape your social media/facebook accounts to see if you are a likely unregistered gun owner and this justifies further investigation into you", rather than relying on a tip off or similar. Congress wouldn't need to do that. Law enforcement can certainly already look into anything public without additional authorization, and could further subpoena Facebook for relevant documents if there was a reasonable connection.
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Apr 13, 2018 21:43
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ulmont posted:Congress wouldn't need to do that. Law enforcement can certainly already look into anything public without additional authorization, and could further subpoena Facebook for relevant documents if there was a reasonable connection. hell, every so often a local police force gets frisky and puts out press releases of all the people they caught for advertising their crimes on facebook
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Apr 13, 2018 21:48
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Regarding 2 & 3, I'm not sure to what extent 2 would actually be illegal, but since there currently isn't a federal gun registration requirement, the FBI covertly creating a dummy corporation to solicit information from people it has no reason to believe are committing a crime would be problematic at best, same goes with creating a database of info on private citizens with an eye towards prosecution should their activities be deemed illegal in the future. The FBI runs fake child porn sites and sometimes entraps people with fake bomb plots, but there is at least an actionable crime there. With respect to 3, there is no law right now that prevents law enforcement from using your public social media postings to determine if you can be reasonably suspected of a crime, so in fantasy President Feinstein future, there is no reason the feds couldn't use your old Facebook posts to gather evidence of a crime. However, it is unlikely that the FBI or the ATF would go through the effort of tying a particular AR15.com account to Joe Taxpayer, who has not submitted any guns for registration, any more than the DEA kicks down the doors of people who have a weed.com account that they use to talk about weed a lot.
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Apr 13, 2018 21:54
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ulmont posted:Law enforcement can certainly already look into anything public without additional authorization, and could further subpoena Facebook for relevant documents if there was a reasonable connection. Facebook would fight that subpoena. Their position (and I think it survived one case at least) is that the user should be subpoenaed to provide the information.
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Apr 14, 2018 01:21
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sorry wrong thread
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Apr 14, 2018 01:23
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Subjunctive posted:Facebook would fight that subpoena. Their position (and I think it survived one case at least) is that the user should be subpoenaed to provide the information. I think there is a distinction between civil cases and criminal cases for Facebook; criminal investigations get more cooperation.
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Apr 14, 2018 01:55
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Yes, that’s true.
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Apr 14, 2018 01:56
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Nevvy Z posted:I'm pretty sure judges decide reasonableness all the time. They're not supposed to be deciding facts unless it's a bench trial. And a qualified immunity decision is supposed to be based off of the claimed injury, not the particular situation anyway. Compare  You illegally searched my rental car!  That's true, but at the time I didn't have any way to know that searching a car despite the objection of an unauthorized driver was illegalwith  You shot me while I wasn't threatening anyone! That's true, but at the time I didn't have any way to know that shooting nonthreatening people was illegalEven in a hypothetical where someone bursts into a police station waving a rifle, yelling "gently caress the police!", a cop that shoots them shouldn't have a qualified immunity defense against a suit alleging excessive force because the injury being claimed isn't a legally unclear right. The cop just has a very good case for summary dismissal.
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Apr 14, 2018 05:27
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Which results in the situation of a cop who unambiguously did not violate anyone's rights having greater personal exposure to liability than a cop who operated in a gray area. That seems backwards, and that backwardness is one reason courts apply qualified immunity they way they do.
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Apr 14, 2018 06:30
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That argument's a bit circular. That situation only results from the order in which these things were evaluated, which you use as justification for the existing process. The inquiry could just as easily work as follows:
That gets you that the officer who unambiguously did not violate anyone's rights has less liability exposure than the one who operated in the gray area, while at the same time, putting police on notice for the future that the conduct was unconstitutional. The current system allows the police to invent a new way of violating someone's rights and have it never ruled as such because the fact that it's never been ruled unconstitutional is grounds to not rule on its constitutionality.
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Apr 14, 2018 18:38
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Which still means every public official would be personally on the hook for litigating every official action they take. Every suppression motion could conceivably be a 1983 action directed personally at the officer. And under your system, since the question of whether someone’s rights were actually violated is always a fact question, these cases would have to proceed at least through discovery. That is enormous exposure, even if your system provides an eventual bar to damages being awarded. That kind of litigation burden for public servants doing their job in good faith is exactly why qualified immunity exists. Even retaining a lawyer just to respond to a complaint and dispose of a case via 12(b)(6) is an expensive proposition for a wage laborer. Police shootings, and disparate treatment of different communities, is a symptom of society-wide racism. It won’t go away as long as we have a drug war and rampant inequality. Bankrupting some cops will not get rid of the actual problems you’re concerned about, it will only make policing a less attractive profession and result in a lower quality applicant pool.
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Apr 14, 2018 19:13
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Kazak_Hstan posted:That kind of litigation burden for public servants doing their job in good faith is exactly why qualified immunity exists. Even retaining a lawyer just to respond to a complaint and dispose of a case via 12(b)(6) is an expensive proposition for a wage laborer. That’s why union lawyers exist, tee hee.
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Apr 14, 2018 19:16
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Qualified immunity basically only exists because people sue individuals to get around sovereign immunity. Get rid of sovereign immunity and the problem is solved!
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Apr 14, 2018 20:39
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It sounds like what you're actually arguing for is blanket immunity for any official performing their job. Which is a policy argument you can make, but isn't what qualified immunity says it's for (close to how it's actually applied though). If you were god-emperor of the legal system, is there any case you'd let go forward? "a cop who unambiguously did not violate anyone's rights having greater personal exposure to liability than a cop who operated in a gray area" doesn't seem like an actual problem because if they unambiguously didn't violate anyone's rights, there's no facts in dispute and nothing preventing summary judgment pre-discovery. If you need discovery, it's not unambiguous. Lumping all the specifics of the situation into the legal claim to get around not having a valid "law wasn't clear" defense is just backdoor converting it into blanket immunity.
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Apr 15, 2018 19:17
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QI is fundamentally a policy discussion. If I had to choose between blanket immunity and scrapping QI altogether I’d choose blanket immunity and argue it’s a political problem and society gets the government it votes / advocates for. If it were completely up to me I would opt for a heightened pleading standard, but that was largely foreclosed by Cawford El. Ultimately my belief is that neutered government has higher social costs than a few bad actors getting off, especially as there tend to be avenues of recovery for victims in those cases, such as the large settlements resulting from the Michael Brown shooting, 2008 St. Paul RNC mass arrests, etc. There really are not neat and tidy answers to QI because it puts the resolution of fact-intensive questions at the early stages of litigation. It’s hard to do something so fundamentally counter the usual organization of the process without generating legitimate objections.
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Apr 15, 2018 21:57
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Main Paineframe posted:But in the examples given, the execution wasn't lawful. They may have believed it to be lawful, but that belief was in error. Modus Pwnens posted:They should.
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Apr 15, 2018 22:13
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I'd rather see a civil employee who opted into their job on the hook for that stuff than a random citizen who did nothing other than live kinda near a fire. I'd also rather see the department liable by default for anything their employee does, which can only be shifted to the employee in cases of grossly violating policy. Either is better than the current situation.
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Apr 15, 2018 22:30
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Javid posted:I'd rather see a civil employee who opted into their job on the hook for that stuff than a random citizen who did nothing other than live kinda near a fire.
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Apr 15, 2018 23:45
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Dead Reckoning posted:The problem is that the number of people who are going to be willing, as a matter of civic duty, to incur massive legal exposure in addition to the physical risks by breaking into a stranger's possibly burning house will be far fewer than the number of fires that need fighting. Same goes for entering strangers homes to help domestic violence victims and enforce restraining orders. edit: We don't need to create new branches of legal theory to solve the problem of "employees want to be insured against being sued for their actions". twodot fucked around with this message at 01:23 on Apr 16, 2018 |
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Apr 16, 2018 01:16
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Well, for one thing, if employer insurance is covering your legal defense and the employer is absolutely immune from its own liability (because sovereign immunity) then it will make health insurance look generous in terms of what it will cover and when.
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Apr 16, 2018 01:29
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Yeah I mean the ultimate goal is "state pays, gently caress sovereign immunity, they can then sue the employee if their conduct was egregious", I just think "civil employee pays" is less awful than "have a multi thousand dollar repair bill, random citizen, and gently caress you if you can't afford it"
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Apr 16, 2018 01:30
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Kalman posted:Well, for one thing, if employer insurance is covering your legal defense and the employer is absolutely immune from its own liability (because sovereign immunity) then it will make health insurance look generous in terms of what it will cover and when. edit: If the argument is that the sovereign paying for their employee's fuckup is financially untenable, that seems like a problem of its own. twodot fucked around with this message at 02:01 on Apr 16, 2018 |
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Apr 16, 2018 01:33
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I'm pretty sure I'd be ok living in a world where cities refuse to hire police officers who have a history of misconduct due to liability insurance costs.
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Apr 16, 2018 01:55
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twodot posted:Is the implication here is that a sovereign is going to pretend to offer insurance and then just laugh when they refuse to follow through and no one can sue for them for failing? Like I agree the benefit being offered has to be a real benefit, but sovereigns in actual reality manage to offer money for employment today, so I feel like they could offer money + insurance for employment too. Let’s assume we can fix the perverse incentives your idea would have with regards to who pays for what. It doesn’t even loving matter, because the second the state is on the hook financially, they can assert sovereign immunity! I’ll quote. “A suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” If the state must act as indemnifier or insurer, well, good job making sure that case is getting dismissed!
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Apr 16, 2018 02:35
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Kalman posted:Let’s assume we can fix the perverse incentives your idea would have with regards to who pays for what. twodot fucked around with this message at 02:46 on Apr 16, 2018 |
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Apr 16, 2018 02:43
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You pretty clearly don’t actually understand my criticism. Try re-reading it; it has nothing to do with “pretending to offer insurance” any more than health insurers pretend to offer insurance. And like I said, it doesn’t matter because the second the state has to indemnify, congrats, you’ve made sure the entire case gets bounced on sovereign immunity grounds.
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Apr 16, 2018 03:04
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The state can reject it on sovereign immunity, but doesn't have to. The state permits itself to be sued in lots of situations. If the state is setting up a system where their indemnifying employees, presumably they're going to waive immunity for the sake of paying out valid claims. No one can force them to pay if they don't want to and they can unilaterally alter the agreement later, but sovereign immunity is a privilege, not an obligation.
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Apr 16, 2018 05:30
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Foxfire_ posted:The state can reject it on sovereign immunity, but doesn't have to. The state permits itself to be sued in lots of situations. If they wanted to waive immunity, they could do that already, and you wouldn’t care about QI because the state usually has a lot more money than the individual.
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Apr 16, 2018 05:41
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Kalman posted:If they wanted to waive immunity, they could do that already, and you wouldn’t care about QI because the state usually has a lot more money than the individual. In the hypothetical posed (a world without QI where no one will work public safety jobs due to liability), the State has an additional reason to waive sovereign immunity (wanting to be able to hire employees by credibly guaranteeing indemnification) that it does not currently have. Therefore it may choose to waive SI in the hypothetical world even though it has not done so in the real world.
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Apr 16, 2018 06:46
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blackmongoose posted:In the hypothetical posed (a world without QI where no one will work public safety jobs due to liability), the State has an additional reason to waive sovereign immunity (wanting to be able to hire employees by credibly guaranteeing indemnification) that it does not currently have. Therefore it may choose to waive SI in the hypothetical world even though it has not done so in the real world. If we're positing hypothetical worlds where existing doctrines don't exist, wouldn't it be easier to, you know, get rid of the doctrine that we actually care about (the one that makes it hard to sue the state) rather than trying to come up with hackneyed approaches to dealing with the doctrine that only exists because you can't sue the state so people sue state employees? But, okay, let's assume we can get rid of QI but not SI. Either the state pays for the employee's damages, or it takes over the defense. If they pay for the damages, but don't take over defense, you've created the perverse incentive for the employee to just settle at any cost so that it goes away for them - it isn't their money, after all. While this results in harmed people receiving settlements, it also results in people who weren't really harmed suing individuals because they know they can get an easy settlement. Essentially, you've created nuisance QI trolling as an industry. And if the state does take over defense, and the employee doesn't self-defend, you wind up with a situation where the employer, if there's any way to push liability to the employee, will do so (rather than pay out from their own pockets). And don't pretend that they wouldn't be able to do this because they'd want to hire employees - private employers already do this and hey, turns out that employees don't have all that much power. Now, since the employee isn't self-defending, they're not really going to be able to influence this. Alternatively, they can hire additional counsel, in which case the whole issue the proposal was intended to fix - state employees over-thinking actions in order to avoid personal liability and hassle - isn't actually fixed. It's a dumb goddamn idea that doesn't actually work, especially since - in the world we actually live in - it'd be barred by sovereign immunity in the first place.
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Apr 16, 2018 07:27
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Kalman posted:And if the state does take over defense, and the employee doesn't self-defend, you wind up with a situation where the employer, if there's any way to push liability to the employee, will do so (rather than pay out from their own pockets). And don't pretend that they wouldn't be able to do this because they'd want to hire employees - private employers already do this and hey, turns out that employees don't have all that much power. Maybe in practice we wouldn't take that option, and the world would burn down because we couldn't hire firefighters, but it is an option we could choose.
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Apr 16, 2018 15:25
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