[Moderating]
And that’s enough on the hijack about comparing the incomes of police officers and other professions.
So the most I’ve ever carried on me was $500, the most one can withdraw at my bank in 24 hours from an ATM. I carried it in a moneybelt inside my shirt and not just laying on my passenger seat or in glovebox. Since I’ve never been felt up by a cop, the OP doesn’t go with my life experience.
However the thread’s interesting because my novice thought would be to.let a cop search me. After reading your input, i’d no longer be so willing to allow that.
I have been stopped many times while a pedestrian as a mistaken person of interest. The cops it seemed had the vaguest description of perps on every occasion.
It’s worse than that. There has to be a court case that extremely closely matches the action that was done where the court said you can’t do that. As many have pointed out, it would be impossible to ever get that first case saying rape nullifies QI or beating a helpless handcuffed prisoner nullified QI. I believe courts are starting to see this and are moving to your criterium of if it is obviously illegal it nullifies QI.
All Civil servants have Qualified immunity. Not justy Police. Clerks, Dogcatchers. IRS agents. But why sue a cop with a few thou in the bank- at most? You can- and many have- sue the Police Department. They have millions. Sue the deep pockets.
QI is a Good Thing. It stops good cops from being sued out of existence by bad guys. Remember, it doesnt cost much to file a lawsuit, and if you have a pet “criminal” lawyer, that part is free. But the cop will have to spend his entire career giving discovery or in a court room, and he cant afford lawyers like mobsters can.
My emphasis. My pet hate is people saying that the courts support something because they uphold legislation. There may be exceptions but as a rule courts do not support this sort of unjust malarky. However, courts are subordinate to legislature. When a statute is clear and a court can’t find a loophole, it has no option but to enforce the statute.
Every time someone like you blames the courts and not the legislature, the assholes who pass this sort of legislation snigger at you behind your back and high five one another about how, once again, they have pulled the wool over your eyes and ducked the blame.
You have discovered legal formalism. As you may guess, the fact that it has a name like “formalism” and not simply “the law” indicates that there are other schools of thought. To quote Wikipedia:
The antithesis of formalism is legal realism, which has been said to be “[p]erhaps the most pervasive and accepted theory of how judges arrive at legal decisions.”
Myself? I’m a legal realist, and I think formalism is what activist conservative judges insist they’re adhering to when in fact they’re just engaged in a more reactionary (pro-conservative) kind of legal realism.
Have you considered that the reverse might also be true? That every time a court throws its hands up and says “Gosh, my hands are tied, there’s just nothing I can do about this outright horrific piece of legislation unless the legislature acts to change it!” the judges who make those kinds of rulings snigger at you behind your back and high five one another about how, once again, they have pulled the wool over your eyes and ducked blame?
Because, you know, a lot of those same judges, interesting enough, are liable to “find” ways to invoke higher precedent (eg: their own personal favorite interpretation of the constitution) when they come across a law they don’t like. But still they say “Oh, I’m not a inventing the law or overriding the will of the people or the legislature: I’m just following the higher law of the Constitution. Calling ‘balls and strikes’ you know?”
Every civil servant has qualified when doing their job. You can’t sue a judge because he disallowed an objection by your lawyer. He’s just doing his job. You can’t sue the DMV clerk because they refused to accept an out-of-date safety certificate.
You can sue a civil servant - personally - who uses his position to exceed what he is legally allowed to do. the SCOTUS decision was intended to protect police who honestly believed what they were doing was within their powers, rather than finely slicing and dicing the permitted actions of police under a microscope. However, it seems to have swung much too far the other way.
In Canada, it is usual that the loser in a lawsuit pays the winner’s legal bill. Thus, failed lawsuits that had no merit are strongly discouraged. The USA should consider this system. I would go further and say that a lawyer who takes a case on contingency should then also be personally liable for the other side’s legal bill if they lose.
Naturally, most lawsuits drag in everyone who is remotely connected to a case. A cop may not lose his house for overstepping his authority, thanks to QI, but the municipality may end up paying regardless. And, police unions tend to pick up the legal bill when a member’s actions are in dspute.
Judges IME (like most lawyers) tend not to like inversion of the common standards of justice such as guilty-till-proven-innocent or seizure-of-property-without-trial.
There is some wiggle but often not much wiggle room in interpreting statutes, and even if a judge reaches a conclusion in line with their personal views rather than the words of a statute in front of them, it tends to get overturned on appeal.
And on top of that your whole position falls apart when you consider that if a judge manages to find a loophole to allow a decision contrary to what legislators want, legislators can amend the legislation to close the loophole. Legislation is superior to the judicature outside of certain constitutional protections. So even if a judge does find contrary to statute, the legislature is still to blame, once it has been given an opportunity to amend which it has not taken. The confiscation statutes under discussion have been around for many years.
It’s the judge that has the sometimes thankless task of enforcing what the legislators have done, and the human obsession with shooting the messenger does the rest.
Finally, in the context of my comment in this thread you will note that the Doper to whom I was replying didn’t even attempt to argue or support a view that the judges enforcing these confiscation statutes was doing so contrary to the statutes, or that the statutes had loopholes that would have allowed the judges to do so. Which IME is typical. Putting the blame on the messenger is reflexive not the result of any consideration of the actual legal position.
First, getting the last word in a discussion forum does not mean you “win.” It is likely to only mean you are being ignored. You do not get to tell me what to do with my time.
Second, take all of your arguments and apply them to qualified immunity, then come back about “thankless task of enforcing what the legislators have done.”
Third, in the US system, one of the jobs of courts is to check the legislature on the constitutionality of the laws they pass. So when people are told “there is a law that the government can take things from you because a cop wants to, with no trial or anything” (many) people come back and say, “that can’t be right, that’s unconstitutional!” Which brings the response, “no, courts have found it to be fine.” That is all I was saying, and is completely, factually, true.
There seems to be a lot of confusion here over Miranda and what it means. That’s because SCOTUS (especially during the Rehnquist era) has been distinguishing Miranda out of existence for years. Miranda should nowadays be relied on only to identify the substance of the warning that a person is entitled to while in custody and under questioning. Later cases define custody, how the right is invoked and so on.
Law school criminal procedure classes focus largely on the Fourth, Fifth and Sixth Amendments. About a quarter of the class in any US law school will be Miranda followed by all the cases that narrowed it.
The problem with the “legal theft” falls on both legislators and judges. Legislators passed laws permitting the taking of property without due process, despite the blatant requirement in the constitution that this not happen. SCOTUS judges rubber-stamped this concept despite the obvious contradiction.
The lower-level judges who are now obliged to allow such actions can be held blameless, insofar as they are “only followink orders”.