Another Reason to Get Rid of Police From Pulling People Over

[bloomj31]

@gotlucky

In other words, if the parties to a dispute believe that their resolution is mutually agreeable without a third party enforcing through violence its own separate belief, then that is the right solution in regards to those particular parties. When a third party comes along and says that it has a different solution, and it imposes it upon the parties to the dispute, I am saying that it is not a moral solution in regards to the parties to the actual dispute. I am saying that the morality of the third party should have nothing to do with the morality of the parties to the dispute.

Ok fine so how is that applicable to these cases? Only one case even involves a clear justiciable issue. I’m referring to the potentially wrongful seizure of that bag of cash. He looks to have clear standing to sue.

The alleged police impersonator cases are far from fully investigated.

The issue of police power isn’t even a federal issue, it’s a state issue and would most likely have to be changed by a state legislature, not a judicial ruling.

The roads these people were driving on aren’t private, so there’s no discrepancy between a private road owner and a speeding driver. The traffic code is state statute. It too would have to be changed by a state legislature.

So where are these disputants with standing to sue?

@gotlucky

Law in general does not require a might makes right approach. Not only can we conceive of such a system, but the various customary law systems that have existed/do currently exist demonstrate that it is the case that law does not necessarily require a might makes right approach.

Ok.

@gotlucky

The Constitution is irrelevant. No one actually enforces what is written in it.

That’s certainly true to an extent but the Constitution and its amendments do actually serve as a framework for legislation and for judicial review. That’s why I brought up police power.

@gotlucky

Yes, just as the executive branch can ignore what the judiciary branch decides.

It can happen but usually the executive branch enforces judicial rulings (think forced desegregation following Brown v Board.) Frequently entire statutes are rewritten simply to comply with judicial rulings (The Affordable Health Care Act, for instance, may require extensive rewrite if the individual mandate is struck.)

@gotlucky

No, nor do I really care. The constitution is not a document that anyone actually enforces.

Well the police power is a reserved power of the states under the tenth amendment. Each state has guidelines for police officers about what they can and cannot do. Likewise traffic codes vary state to state. Most of the civil protections found in the Bill of Rights and other amendments have been applied to the states through the 14th amendment. But this was not always the case. So you see the Constitution does come into play it’s just been expanded on significantly over time.

[gotlucky]

Ok fine so how is that applicable to these cases? Only one case even involves a clear justiciable issue. I’m referring to the potentially wrongful seizure of that bag of cash. He looks to have clear standing to sue.

Depends which cases you mean. If you are talking specifically about the man whose money was stolen by a fake cop, that’s a pretty cut and dry case. The dispute is between the thief and the victim. If you are talking about some of the points Clayton was making, “The fact is that any form of stopping, detaining or arresting is a kind of kidnapping and imprisonment. No one has the legitimate right to tell anyone else “you must stand here and not move”, let alone bind the person in handcuffs or cage them in a prison cell,” then again, I think the dispute would be pretty clear. It is between the officer (kidnapper) and the victim. Maybe you are asking something different?

The issue of police power isn’t even a federal issue, it’s a state issue and would most likely have to be changed by a state legislature, not a judicial ruling.

I don’t really care how it gets dealt with, only that it does. Well, I would prefer it get dealt with by the state receding on its own because of people wanting to do without it, because the only other option is a violent uprising, and I would prefer less violence to more violence in this particular case.

The roads these people were driving on aren’t private, so there’s no discrepancy between a private road owner and a speeding driver. The traffic code is state statute. It too would have to be changed by a state legislature.

Part of the problem is that it is state owned. If roads were private, there would be a great more variation in rules regarding speed limits and the enforcement of such rules. Maybe there would be speed bumps on less travelled and suburban roads and higher speed limits on highways. Maybe not. But when you have centralized control, there is far less experimentation and you get far worse results. That and I have a moral problem with the state.

So where are these disputants with standing to sue?

With standing to sue in regards to which system? The police officers who are guilty of crimes are largely protected against being sued individually in the current statutory system. In a private law system (or even if the state somehow decided to abide by unlimited strict liability), police officers who are guilty of kidnapping and false imprisonment would be able to be sued. So the disputants would be anyone who was falsely imprisoned.

That’s certainly true to an extent but the Constitution and its amendments do actually serve as a framework for legislation and for judicial review. That’s why I brought up police power.

It’s a general framework that is ignored when the Powers That Be wish to ignore it, and they abide by it when it suits them. The rest of us are screwed.

It can happen but usually the executive branch enforces judicial rulings (think forced desegregation following Brown v Board.) Frequently entire statutes are rewritten simply to comply with judicial rulings (The Affordable Health Care Act, for instance, may require extensive rewrite if the individual mandate is struck.)

In general, the various branches of the state do not work against each other. There is some interdepartmental quarrelling, but yes, by and large it works together. The point is that the state enforces what it pleases to enforce, and doesn’t enforce what it doesn’t. The lack of consistency is both good and bad. It’s good to the extent that some people who shouldn’t be punished are fortunately spared on occasion. The bad is that gives the police an incredible amount of power to do what they wish (i.e. they get even more power with which to threaten citizens).

Well the police power is a reserved power of the states under the tenth amendment. Each state has guidelines for police officers about what they can and cannot do. Likewise traffic codes vary state to state. Most of the civil protections found in the Bill of Rights and other amendments have been applied to the states through the 14th amendment. But this was not always the case. So you see the Constitution does come into play it’s just been expanded on significantly over time.

That the constitution can be so easily rewritten in practice (why bother with ammendments if you can just write a law and not enforce the constitution?) should demonstrate that it coming into play is not a meaningful statement. Sure, you have a right to free speech, except when we say you don’t. Sure, you have a right to protection from unreasonable searches and seizures, except when we say otherwise. There’s not much point to a document that says whatever you want it to say whenever you want it to say it.

[bloomj31]

@gotlucky

In a private law system (or even if the state somehow decided to abide by unlimited strict liability), police officers who are guilty of kidnapping and false imprisonment would be able to be sued. So the disputants would be anyone who was falsely imprisoned.

Ok well maybe they’ll bring suit. If not it’s a non-issue. At least from a judicial perspective.

I think because of the current qualified immunity thing, this would have to be dealt with by a legislature first before cops could be sued for detaining people.

@gotlucky

Part of the problem is that it is state owned. If roads were private, there would be a great more variation in rules regarding speed limits and the enforcement of such rules.

You’re probably right and maybe roads will be privatized.

@gotlucky

I don’t really care how it gets dealt with, only that it does. Well, I would prefer it get dealt with by the state receding on its own because of people wanting to do without it, because the only other option is a violent uprising, and I would prefer less violence to more violence in this particular case.

Or perhaps it blows over because it doesn’t bother enough people.

@gotlucky

The point is that the state enforces what it pleases to enforce, and doesn’t enforce what it doesn’t.

Are you talking here specifically about police officer immunity or something else?

@gotlucky

Sure, you have a right to free speech, except when we say you don’t. Sure, you have a right to protection from unreasonable searches and seizures, except when we say otherwise.

Which rulings are you referring to?

[bloomj31]

Here, I’ve found a ruling that irks even me.

This is the sort of thing that might make me angry if it happened to me.

It’s even kind of related to police power but more specifically to unreasonable searches.

[gotlucky]

Ok well maybe they’ll bring suit. If not it’s a non-issue. At least from a judicial perspective

Well that’s kind of the point we’ve been trying to make. It should be a legal dispute only if the parties involved press charges. The problem with statutory law is that this is not what happens. Some third party says that there should be a dispute, even when the parties involved don’t want there to be one.

I think because of the current qualified immunity thing, this would have to be dealt with by a legislature first before cops could be sued for detaining people.

Another possibility would be if a judge decided that a lawsuit had merit regardless of the immunity and ruled in favor of the plaintiff. It’s less likely than the legislature changing the law, but don’t forget that judges in MA are the ones who made gay marriage legal here and not the legislature.

Or perhaps it blows over because it doesn’t bother enough people.

I hope that with education, it will bother enough people.

Are you talking here specifically about police officer immunity or something else?

No, the state just isn’t consistent with the enforcement of its rules. Look at the drug laws. Some people get arrested for underage drinking, some people aren’t. Some people are arrested for cocaine, some people aren’t (Charlie Sheen, I’m looking at you). Don’t get me wrong, I’m happy that some people aren’t arrested and imprisoned for these “crimes”, but the point is that the state wields even more power when it is not consistent. Its agents hold even more power over citizens because they can choose whether or not to enforce rules. In a sense they are like judges and can try you on the spot. They can choose to “convict” you (read arrest) or exonerate you.

Which rulings are you referring to?

One example might be the McCain-Finegold Act, where free speech is limited in regards to elections a certain number of days before the election.

[bloomj31]

Yeah well I have to say I think all that campaign finance reform law is nonsense.

I believe some of the provisions of that act were struck in the Citizen’s United ruling though.

[bloomj31]

@gotlucky

Another possibility would be if a judge decided that a lawsuit had merit regardless of the immunity and ruled in favor of the plaintiff. It’s less likely than the legislature changing the law, but don’t forget that judges in MA are the ones who made gay marriage legal here and not the legislature.

Actually after doing some digging I’m thinking it’s pretty likely a legislature would have to act first. A challenge based on qualified immunity would most likely be sustained in a suit over a traffic stop where states have used their reserved powers to give cops the right to perform them. They’d probably first need to remove those powers. Still I’ll keep looking for more relevant cases.

“In analyzing whether an officer is entitled to qualified immunity, a court undertakes a two-step process. The first step asks the question: Did the officer’s conduct violate the constitution? If the answer to this question is no, then the officer is not liable and the case is over. During this analysis the court looks at all the facts in the light most favorable to the person suing the police officer. If the answer to this first question is yes, the officer’s conduct did violate some right then the court proceeds to a second question. The second question is: Was the right so clearly established that a reasonable police officer would know that his or her conduct violated the right? If the answer to this question is “no” the officer again escapes liability because he or she did not know that the conduct in question was bad. Only if the answer is that a reasonable police officer was on notice that the conduct was bad, could the lawsuit proceed.”

Saucier v Katz

[gotlucky]

It may be more likely that it could come from the legislature, but all it takes is one judge to say the case has merit, even if there is precedent against it.

[Caley_McKibbin]

I read that police in Canada are required to show 3 pieces of ID on request.