You DO know that “cannot be sued” is simply a handy layman’s phrase that is no more than shorthand for a legal concept embodied in Federal Rule of Civil Procedure 12b6 – “fails to state a claim upon which relief can be granted.” Another time you will see a report that “X cannot sue Y” is that the court finds X did not have “standing” – usually because they were not specifically harmed by the problem they allege. In that case, another person, who DOES have standing, can sue the same parties.
The Psychiatrist has been sued. They were sued when Plaintiff filed a Complaint which required their Answer (in the absence of which Plaintiff would be entitled to a default judgment).
As it turns out, Plaintiffs lost at a very early stage because they had no claim the court could grant relief for. Speaking generally, they can either find a new legal theory to sue under, or seek a different defendant against whom a claim can be stated more sucessfully.
Except in those cases where anyone can’t sue anyone they want: The California Supreme Court ruled Monday that bloggers and participants in Internet bulletin board groups cannot be sued for posting defamatory statements made by others.
You haven’t found the hits because you are failing to understand that these cites are using the word “sue” colloqiually. What I said in my first post is absolutely correct. The definition of the word “sue” is “to institute a lawsuit.” When your cites use this phrase, “cannot sue,” they do *not *mean “cannot institute a lawsuit.” They mean “this particular type of lawsuit, if determined to be of that type, can be dismissed.” The action still gets filed, and the opposing party must respond.
As you concede that the paperwork can be filed, and because filing the paperwork is what “sue” means, there’s no more debate here.
Well, a few people have tried to explain to you what this means. I am sorry you don’t understand. The wording is confusing, I admit, but anyone with a basic understanding of the legal system in the United States will tell you the same thing. A judge that rules “can not be sued” is ruling in favor of a party who has already been sued. You can still sue on different grounds, or for that matter, you can sue again on the same grounds and no one can stop you. When you file a suit with the clerk, you have initiated a lawsuit. You have sued. There is no judge or magistrate standing by to say “no, this guy can’t sue the other guy.” Your suit will be commenced and heard. It may be dismissed in short order but you still can sue. I can sue any internet blogger I want tomorrow, That ruling you cited does not and will not affect my ability to bring suit. I can file and have court challenge any present law or precedent in hopes of overturning any precedent of “can not be sued”. Another judge may see it differently and allow my suit to move forward.
You just don’t quite understand the terms of the legal system and how commencement works. I obviously can’t make a believer of you. Just talk to an attorney or go to the clerks office or go read a book.
You’re wrong and someone in the “real” world is gonna have to convince you I guess.
What are you talking about? That has nothing to do with when I asked you “What point would that be?” You said:
It is then that I asked you, "“What point would that be?”
My response was that a store employee or police officer not being able to cite the law (or not bothering to) that says he can detain you, arrest you, etc. is not much of a point.
A police officer doesn’t have to be able to recite the law that says you can’t stab someone for him to arrest you and a store employee doesn’t have to be able to recite the law that says he can detain you to detain you.
Yes, all those newspaper articles about who can’t be sued don’t reflect the real world.
Are you going to continue to gloat now that you finally found others who agree with you on an issue or are you going to respond to my post about random searches?
The random searches issue is not so clear cut. There are all kinds of court rulings on the matter of trafic checks. They have come and gone and changed over the years. The rules have changed a lot since 9/11 and many searches and seizures, rules of probable cause and rules of police detainment and conduct have changed.
I would need to take some more time to make a definitive statement on federal and state laws regarding random check points. They are, in general, unconstitutional. Under specific circumstances, in certain states, when particular criteria are met, they are legal although the prerequisites make them, in the eyes of the law, specific, not random.
If I have given the impression that all trafic check points are illegal or unconstitutional, I apologize. That is wrong. The matter is not decided across the board, but state by state.
I see what you’re saying. Maybe this will help; let’s see what happens in a lawsuit-when in the course of a legal proceeding someone could be “sued”.
Is it when you win the suit? I think we both agree you can sue someone and not win. Otherwise, I haven’t been sued if you sue me and I win at trial. Under this theory, you could go through a complete trial without being sued. So it’s before that.
Is it when you go before a judge? Why are you in front of a judge? Because you’re being sued. So it’s before that. You’re certainly being sued if a judge makes a decision on YOUR lawsuit, even if that decision is “you lose”, right?
Is it when a judge reads the papers? Again, why is the judge reading the papers? Because you’re being sued. Lots of lawsuits are decided at this stage. Just like after trial, that doesn’t mean you’re not sued. Why not?
Your lawyers get the complaint (the pleading that starts a lawsuit), respond to it, and the judge reads them both. You can’t not be sued when your lawyer writes something in response to a lawsuit, right?
Is it when the judge recieves the papers? Maybe. That’s when a judge will actually act on the lawsuit. Is it when you get the papers? Maybe. that’s when you’ll hear of the lawsuit.
What do you need to have a judge and a person recieve papers about a lawsuit? You need the papers, and you need to file them with the court (and serve them on the other side)–the court doesn’t do anything about that… a clerk will accept a properly served and formatted complaint… they’re not judges and have no power to say “no, you can’t sue that person”. Try it. Go to a court, try to sue Satan (as seen above in Mayo v. Satan). The clerk won’t turn you down.
You may say “that doesn’t mean my lawyers have to respond”–that’s simply not true. If you don’t respond to a lawsuit, in general, you lose the lawsuit. The american system is “adversarial”–it means judges look at almost nothing on their own, just what each side argues.
So what do these newspapers mean? They’re saying that if you sue someone, the bloggers will win at a very early stage of the lawsuit. As has been said earlier, people can say that a judge might throw your lawsuit out, but not that anyone can stop it from getting to them.
In fact, as I’ve said, it’s very rare when a judge will throw out a lawsuit without your lawyer asking the judge to do so. So generally, even when the other side “can’t sue”, your lawyer still needs to tell the court that you “can’t” be sued (actually, that they have not shown any way that such a suit would win, if I am to be specific.). And I hope we agree that if your lawyer sends something to the court about a lawsuit, you’re being sued.
If you think this is wrong, then please explain when someone is “sued”. Because I surely don’t understand it, and would love to.
Usual disclaimers: not a lawyer, not giving legal advice, not in your jurisdiction, etc,etc.
A plaintiff writes up a complaint against someone and files it with the court. The defendant has just been sued.
If it was not legal to sue, then the defense usually files papers to have the court dismiss the suit. If the court agrees and dismisses the suit, then you have a suit and a dismissal of that suit.
Yes it does. That is the summation of his reasons for acting as he did. That’s his reason for leaving without stopping to be checked and everything that followed.
Whether he’s right or you and I agree are irrelevant. That was his belief and his motivation. So, since his goal was to point out to them that they had no legal right to search his bag or detain him if he didn’t cooperate I think his point was made {right or wrong} when the manager said he had a legal right to search the bag and was unable to cite the law, IMO that should have been enough for him. He could have had a civil conversation with the manager explaining his position and discussing the voluntary or non voluntary aspects of bag checking. Instead he continued to push buttons and let the situation escalate. I’m not saying the manager’s actions or the cop’s were completely correct. That’s for a judge to decide. It seemed like he was playing “gotcha” He purposely pushed buttons waiting for someone to slip up. It’s a petty BS thing to let escalate that way.
You’re correct. No one is required to cite the law upon demand. That doesn’t change the point he thought he was making. I wouldn’t expect the average employee to know but the manager should. In our sue happy society store managers better know where the lines are drawn and not step over them unless they’re sure. Perhaps that’s exactly what this manager did. I really don’t know. I would imagine that the store has a policy about how to handle a situation like that. I noticed that they didn’t put their hands on him or accuse him directly of shoplifting. They wouldn’t even call the police. That leads me to believe they must have had some guidelines.
Inappropriate and unnecessary comparison.
One is obvious and common knowledge the other isn’t.
What if I walk into the store for the first time in my life on a slow day and don’t happen to see anyone getting their bags checked on the way out? How can the store legally establish, without stating it in writing upon entry, that everyone who enters is supposed to recognize receipt checks as standard store procedure?
On such a day, I make my purchase, head for the door, and suddenly someone demands to see the contents of the bag they just gave me, along with my receipt. How am I supposed to feel any other way than that I am under suspicion of criminal activity?
And, really, if I DO see others getting their bags checked, given the above, why should I feel any other way than that we are ALL under suspicion of criminal activity?
Certainly, I have the freedom not to shop there again, but I also have the freedom, having not committed any crime, not to submit to their search.
If I may add one additional step, collection on a valid judgment could go at the top of your list. I believe many folk are unaware of the extents to which some people go to make themselves “judgment proof.” In many instances it is far easier to obtain a favorable judgment, than to collect any damages. Just saying.
This issue interests me, because it highlights an instance in which an individual’s personal beliefs may conflict with societal pressures - and the inconvenience an individual is willing to go to to uphold his beliefs. I tend to be a very strong supporter of personal privacy, but I readily acknowledge that I regularly acquiesce to intrusions upon my privacy for little other than convenience, or to avoid unpleasantness. On this day, this shopper apparently drew his line differently than I might have.
Personally, I respect his position, and respect him for acting upon the strength of his convictions. I have no doubt the overwhelming majority of folk consider him to be a crank. But IMO in recent years the overwhelming majority of folk have been quite sanquine about allowing - and even participating in - the erosion of their privacy and other personal freedoms for the sake of purported gains of safety, comfort, or convenience.
He thought he was making? You said you thought he did make his point. I’m not seein’ it.
No one is required to cite the law upon demand, but the manager should? I doubt that when store employees are trained in what they are allowed and not to do, it includes “what the name of the law is”. I see no point that was made.
Give me a break. My point isn’t that there is a legal obligation to recognize a bag checker at the door. It’s that a bag checker can reasonably assume that everyone notices him out in the open checking bags and if he’s never had a problem with anyone refusing standard checks, it’s reasonable to assume that someone ignoring him would raise suspicion. Enough to warrant detainment? Probably not, but I’m not sure how a judge or jury would see things especially the way the Ohio law is written.
You shouldn’t. So? You do realize that’s why there are cameras, security devices, etc. Do you take those things personally? I’m not saying that’s the same as having your belongings checked; I’m saying that strangers in stores are of course ‘not trusted’ to not walk off with merchandise. Unless you live on another planet, you’re already aware that you’re ‘under suspicion’.
Can you give a specific example of a rule that has changed since 9/11 in the area of police detainment or the existence of probable cause for a given set of facts?
Ok, at Fry’s Electronics yesterday, and they check and make a mark on your receipt when you leave. There are signs everywhere that ask you to stop and check your bags, but I never paid too much attention to them to read the fine print.
My question is, if I walked out the door, proud and with head held high because I stopped those fascist pigs from daring to steal fifteen seconds of my obviously infinitely valuable time, and didn’t get my receipt checked off, and then tried to return the merchandise the next day for some reason, could I be turned away because my receipt wasn’t validated? And would my sense of of superiority allow me to claim that despite the fact I didn’t follow the rules of the store, they should still take my merchandise back?
And on reflection, have I poisoned the well too much to get an honest response?
Guess - you could indeed be turned away when you attempted to return the goods. The store normally accepts returns as a courtesy, it has no legal obligation to do so. If they make “stamped receipt” a condition of that courtesy, well, there’s not a lot anyone can do about it.
Of course, I’d say this does not apply if the goods are faulty - in that case the store has violated the contract by taking your money in exchange for unfit products.
I can. In justifying suspicionless searches in the NY city subway, the 2nd Circuit wrote:
Here the court is saying that those terrorist events are what justify the need for these searches and allow the absence of any suspicion. Indeed, the perceived increased threat of terrorism has led courts around the country to expand use of the special needs doctrine–which as you know is the legal doctrine that allows searches in the absence of suspicion or probable cause. I’m no expert in this area, but I think this trend is hardly in dispute. The real debate is about whether this is a bad thing.
The Harvard Law Review had this to say about MacWade:
If you have access to a legal search engine, run a search on “special needs” and “9/11.” I found quite a few law review articles discussing the issue.