Background checks - controversy

JD said:
Yeah, it's inevitable.

I agree that infractions of civil liberties are inevitable. The question of how to handle them legally remains.

One answer is to legally sanction those violations, building exceptions into the law. This is the approach Alan Dershowitz takes to torture; he proposes that a state should obtain a warrant from a court for the use of torture.

Another answer is to be aware that states will infringe civil liberties, but not provide the cover of law for those infringements.
 
It's not going to happen unless and until people who think like that get into SCOTUS.

Even a strict constructionist will need a legal argument to disturb a prior ruling, out of respect for stare decisis. Though it does happen, with the best example I can find being Bowers v. Hardwick, 478 U.S. 186 (1986) and Lawrence v. Texas, 539 U.S. 558 (2003).
 
Even a strict constructionist will need a legal argument to disturb a prior ruling, out of respect for stare decisis.

A strict constructionist lawyer arguing before the court would be a "legal argument". A strict constructionist judge(s) just needs "I think that was wrong."

Even the lawyer, obviously, it's complicated but the base answer is "I've got an idea! How about words and phrases MEAN what they SAY!" That's a "legal" argument.

And in terms of rights "inevitably" getting trampled, it's one thing when it's a mistake, it's another thing entirely when it's a LAW.
 
Another answer is to be aware that states will infringe civil liberties, but not provide the cover of law for those infringements.

I'm somewhere left? of not providing the cover of law and way right? allowing a warrant to waterboard some poor guy. I meantioned mens rea earlier, because I think that's an important part of the decision on what to do about it. If there was no malice involved- i.e. searching 1313 Mockingbird Lane instead of 3131 Mockingbird Lane when the really DID want to search 3131 Mockingbird Lane, we shouldn't be looking at jail time or punitive damages- just compensatory, though compensatory could justify a lot more things. Is there a class of damages between the two?
 
JimDandy said:
. . . .I meantioned mens rea earlier, because I think that's an important part of the decision on what to do about it. If there was no malice involved- i.e. searching 1313 Mockingbird Lane instead of 3131 Mockingbird Lane when the really DID want to search 3131 Mockingbird Lane, we shouldn't be looking at jail time or punitive damages- just compensatory, though compensatory could justify a lot more things. Is there a class of damages between the two?
This is where you get off into qualified immunity, which is more than an immunity from damages. It's an immunity from the burdens of trial.
When government officials abuse their offices, “action for damages may offer the only realistic avenue for vindication of constitutional guarantees.” Harlow v. Fitzgerald, 457 U.S., at 814, 102 S.Ct., at 2736. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e.g., Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law”); id., at 344–345, 106 S.Ct., at 1097–1098 (police officers applying for warrants are immune if a reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (officials are immune unless “the law clearly proscribed the actions” they took); Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984); id., at 198, 104 S.Ct., at 3021 (BRENNAN, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra, 457 U.S., at 819, 102 S.Ct., at 2738. Cf., e.g., Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action. Harlow, 457 U.S., at 819, 102 S.Ct., at 2739, assessed in light of the legal rules that were “clearly established” at the time it was taken, id., at 818, 102 S.Ct., at 2738)


Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987).

This is so because qualified immunity—which shields Government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)—is both a defense to liability and a limited “entitlement not to stand trial or face the other burdens of litigation.” Mitchell, supra, 472 U.S., at 526, 105 S.Ct. 2806. Provided it “turns on an issue of law,” id., at 530, 105 S.Ct. 2806, . . .

Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S. Ct. 1937, 1945-46, 173 L. Ed. 2d 868 (2009)

To put this into a somewhat more succinct package: if officers want to search 3131 Mockingbird, but their warrant says 1313 Mockingbird, then the owner of 1313 Mockingbird is probably out of luck.

Damages: there are basically two broad categories: compensatory (makes the Plaintiff "whole") and punitive (teaches a defendant "don't do that"). There are a few other things like special damages, liquidated damages, and the like, but I don't think that any of those are relevant to the issues at hand.
 
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A strict constructionist lawyer arguing before the court would be a "legal argument". A strict constructionist judge(s) just needs "I think that was wrong."

Without a legal argument of why it's wrong beyond the dictionary you'll never have it get to SCOTUS for Certiorari. You're still going to have to come up with other precedents you can cite to present the facts of the case in a new light to get it reconsidered.
 
This is where you get off into qualified immunity, which is more than an immunity from damages. It's an immunity from the burdens of trial.

I'm not willing to go THAT far for the State. They've collectively employed more lawyers than Dewey, Cheetum, and Howe for centuries- which isn't as far a reason as judicial action is the only form of redress for an individual in many of these cases.
 
Clearly, it can't be just SCOTUS. It requires a change in the way that the law is understood. I'm not saying it's going to happen. In fact, I really have no hope. I can see where our society has been, where it is and where it's being led and I see no likelihood that it's going to be stopped or reversed. The United States of America, as it was intended to be and as it was, is gone and will never be back. That doesn't mean we don't fight to put it back but it does mean that I realize that the likely best case scenario is slowly the decent.:(
 
JimDandy said:
Spats McGee said:
This is where you get off into qualified immunity, which is more than an immunity from damages. It's an immunity from the burdens of trial.
I'm not willing to go THAT far for the State. They've collectively employed more lawyers than Dewey, Cheetum, and Howe for centuries- which isn't as far a reason as judicial action is the only form of redress for an individual in many of these cases.
Go that far? You don't have to go that far. That's already law.
 
Go that far? You don't have to go that far. That's already law.

I was under the impression it was a hodge podge. Some aspects of government had qualified immunity, some didn't. Part of this is tickling the back of my brain over the Watergate scandal.. some of those guys weren't prosecuted because they had a reasonable belief what they were doing was lawful, or some such...
 
JimDandy said:
I was under the impression it was a hodge podge. Some aspects of government had qualified immunity, some didn't. Part of this is tickling the back of my brain over the Watergate scandal.. some of those guys weren't prosecuted because they had a reasonable belief what they were doing was lawful, or some such...
It's pretty well settled that gov't officials have immunity. The hodgepodge ares are: (1) what kind of immunity; and (2) what the standards are.

A gov't official could have:
  • sovereign immunity
  • qualified immunity
  • prosecutorial immunity
  • judicial immunity
  • legislative immunity
  • etc

It used to be that there was a "good faith" element to qualified immunity. That's now gone (in the 8th circuit, anyway), and there's a reasonableness immunity. You also have to look at whether the right violated was "clearly established" at the time of violation.

So yeah, I can see how it might look like a hodgepodge.
 
I'm starting to think I should just audit your class for a couple years. Of course, given how often I see people screaming the mods took away their free speech right, and so forth, I think everybody should "audit" your class in high school as part of the curriculum. We don't seem to have enough knowledge of our own basic laws as we should.
 
Actually, we only touch on that stuff in my class. You should see my students' eyes when I tell them: "Yeah, the A5 says that you have to indict by Grand Jury, but that part doesn't apply to Arkansas."
 
It hasn't been incorporated, though I think at least most of the rest of the 5A has been. I think all of the 1A, 2A, and 4A have been. The 3A has not been, but it's a pretty much forgotten amendment right now. The only way it would be ripe for incorporation is if someone complains at being forced to house Natl. Guard during a Hurricane Sandy type disaster event.
 
JimDandy said:
It hasn't been incorporated, though I think at least most of the rest of the 5A has been. I think all of the 1A, 2A, and 4A have been. The 3A has not been, but it's a pretty much forgotten amendment right now. The only way it would be ripe for incorporation is if someone complains at being forced to house Natl. Guard during a Hurricane Sandy type disaster event.
BINGO. The A5 provisions are currently a great way for me to teach students about incorporation, because it has only partially been incorporated. (The whole self-incrimination part has been incorporated, for example.)
 
Actually let me back track, the requirements for a warrant may not be incorporated either. You may not have to affirm by oath or affidavit everywhere, I'd have to look that up.

Of course all of this sidetracks us from the point I was making, in that too many of us don't really know what our rights are.

Or the actual conversation we were having so without further ado:
Clearly, it can't be just SCOTUS. It requires a change in the way that the law is understood. I'm not saying it's going to happen.

Oh I think it'll happen somewhat. It already is. There's a pendulum to politics, and a pendulum to the courts. They've already started to narrow the commerce clause. That trend may or may not continue, I don't know. I think it's in our best interests to engage Mr. Gura, M. Tresmond, and others to assist that process as much as they directly challenge firearms specific laws.
 
I hope you're right, Jim, but this is only one issues and there are hundreds of others that are in logically/legally worse places.

The gun rights side of the commerce clause doesn't even reach "tip of the iceberg" status. It's more like a snowflake in a blizzard.
 
I'm not willing to go THAT far for the State. They've collectively employed more lawyers than Dewey, Cheetum, and Howe for centuries- which isn't as far a reason as judicial action is the only form of redress for an individual in many of these cases.
To add one point to Spats McGee's post on immunity, the concept of sovereign immunity for state governments is the basis for the 11th Amendment which was passed to keep states from getting haled into court without their permission. It is subject to exceptions. For example, it does not apply to political subdivisions like cities. A federal court can also order a state officer, by name, to take some action or refrain from taking some action. It can't normally touch the state's treasury unless the state waives its immunity.
 
Is that why in cases where the Federal Government is the respondent, it's usually the Attorney General or other Cabinet Officer, rather than the United States, but when the Federal Government is the appellant the case is usually the United States v ______?
 
KyJim said:
To add one point to Spats McGee's post on immunity, the concept of sovereign immunity for state governments is the basis for the 11th Amendment which was passed to keep states from getting haled into court without their permission. It is subject to exceptions. For example, it does not apply to political subdivisions like cities. A federal court can also order a state officer, by name, to take some action or refrain from taking some action. It can't normally touch the state's treasury unless the state waives its immunity.
Aaaand we're off down the rabbithole! :D

Cities themselves do not have the immunity. However, their agents and officers may have some type of immunity (for example, a city police officer may have qualified immunity, or a city prosecutor might have prosecutorial immunity). However, a municipality cannot be held liable for a constitutional violation unless it the plaintiff can show that the city had a policy, practice or custom that led to a constitutional violation. See Monell v. Dept of Human Services.

Further, at least in the 8th Circuit, cities are immune from punitive damages. That's why you see things like "Plaintiff Joe Choirboy vs. Chief Billy Bob Knuckledragger, in his individual and official capacities." The Plaintiff is suing two ways: (a) official capacity (deeper pockets, but have to prove policy, practice or custom) and (b) individual capacity (opens the door on punitive damages).
 
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