New Mexico is the second state to ban qualified immunity • Hacker News Board

Re: New Mexico is the second state to ban qualified immunity

#111

Post by ghayes » Thu, Apr 08, 2021, 7:54 AM UTC

wahern wrote: post #47

arcticbull wrote: post #35

Earlier quoted context omitted.

I can't imagine anyone arguing against Miranda rights, the right to appointed council when you can't afford one, etc. Can you think of a single good reason these shouldn't exist? Whichever rather liberal supreme court that was let's get them back ASAP!

I think they make sense, but they're definitely not explicitly or even implicitly granted in the U.S. constitution, and the various legal theories (e.g. substantive due process) behind the court's power to recognize them are still vilified by conservative jurists and pundits. Miranda Rights had historical precedence in England, but IIRC mostly after America forked. The right to counsel mentioned in the U.S. Bill of R…

Many Miranda rights are _expressly_ granted by the Constitution. For example, the right to remain silent is clearly delineated in the Fifth Amendment [0], without the need for substantive due process.

To the point you mentioned, from the Sixth Amendement: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." You can argue over how that counsel should be appointed, but I would categorically disagree with the interpretation that it only refers to you hiring your own attorney.

[0] "nor shall be compelled in any criminal case to be a witness against himself"

Re: New Mexico is the second state to ban qualified immunity

#112

Post by namdnay » Thu, Apr 08, 2021, 7:58 AM UTC

devwastaken wrote: post #80

mike_d wrote: post #40

The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation. It applies to all parts of government. Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave yo…

Qualified immunity was made up by courts, their legislating from the bench should have no merit, and therefore revoking qualified immunity is the right thing to do under checks and balances. We need a replacement, one written in legislation, that puts fixed narrow limits on how immunity applies. If you break the law - you should receive no protections. There is no excuse for enforcers of law to not know the law. This…

> was made up by courts

That's hardly unusual in a common law system..

Re: New Mexico is the second state to ban qualified immunity

#113

Post by TaylorAlexander » Thu, Apr 08, 2021, 8:00 AM UTC

mike_d wrote: post #40

The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation. It applies to all parts of government. Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave yo…

And then they will need to buy private liability insurance, and bad cops will get their rates hiked until they can't afford to keep being cops, instead of just getting transferred to a new district to offend again.

Re: New Mexico is the second state to ban qualified immunity

#114

Post by MaximumYComb » Thu, Apr 08, 2021, 8:01 AM UTC

katbyte wrote: post #38

coolspot wrote: post #17

I think that the Game theory suggests that cops will be less inclined to show up to a call or do anything to fight crime, because it could bring too much legal responsibility. Eat donuts, ignore the radio and you will be fine.

the cops who worry about this are the ones we don't want to be cops. Its like my male friends who complained about the MeToo movement "how will i date when i have to worry about consent" - uh shouldn't you already be confident theres consent before doing anything? lol

The fact that you have multiple men in your life saying this might be an indication of some of the difficulties men face. I'm making an assumption here that you chose good men to be your friends. Either you're picking sex offenders as friends or men have a difficult situation to navigate when dating?

Women are all different. Some women love the idea of men asking for consent, others would find this a huge turnoff. Not all women do non-verbal consent in the same ways. To make it harder, men are expected to be the one making the moves and taking the lead.

I just made a quick Google search - [1] contains a link to a Reddit post from ~2 years ago. This man keeps getting told "it's not sexy to ask". Some women responding love the idea, others say they would hate it. Ever since #metoo I've made sure to very careful about consent, I even get verbal consent, and I know it's turned some dating partners away. So until women make dating clearer for men maybe you should hold back some of your judgement.

P.S. I'm 35 and have an above average partner count despite actively not sleeping around. I'm not some bumbling awkward guy that's never dated women.

[1] - https://www.reddit.com/r/unpopularopinion/comments/alxofq/me...

Re: New Mexico is the second state to ban qualified immunity

#115

Post by MaximumYComb » Thu, Apr 08, 2021, 8:05 AM UTC

coolspot wrote: post #31

upbeat_general wrote: post #27

Earlier quoted context omitted.

Except that it’s their job to do so. It’s relatively trivial to check what a police officer is doing if the department cares. Doctors can be sued for malpractice yet they still perform operations.

But cost of healthcare is astronomical in part because malpractice insurance is expensive, because too many people abuse it. If we increase (already high) risk of being a cop, then we will have to be ready to pay 200k-300k salaries.

What about the city/county where a few issues causes insurance to not want to touch the place? All of a sudden they can't hire enough police and this causes social issues.

Re: New Mexico is the second state to ban qualified immunity

#116

Post by mschuster91 » Thu, Apr 08, 2021, 8:07 AM UTC

mike_d wrote: post #40

The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation. It applies to all parts of government. Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave yo…

> The purpose of qualified immunity is to permit officials to carry out their discretionary duties without fear of personal liability or harassing litigation.

> It applies to all parts of government. Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave your wine bar a bad rating? Sue the inspector personally.

In Germany, police officers (and other government officials) only have personal liability if they intentionally act against the law or are grossly negligent in following their duties. The scenarios you describe would lead to all these lawsuits being thrown out in court as frivolous.

The correct way to appeal against executive decisions (the denial of building permit, the citation for your unleashed poodle or the bad health rating for the bar) is to file a suit at an administrative court ("Verwaltungsgericht"). Plead your case there and the court can override the executive decision.

Re: New Mexico is the second state to ban qualified immunity

#117

Post by twhb » Thu, Apr 08, 2021, 8:10 AM UTC

brnt wrote: post #110

twhb wrote: post #109

Earlier quoted context omitted.

> Didn't get the building permit for your kids horse barn? Sue the planning commission members individually. Animal control writes you a citation for Puddles not being on a leash? Unleash the lawyers. Health department gave your wine bar a bad rating? Sue the inspector personally. That’s exactly the way it should work! If an animal control guy has it in for you and writes you off-leash citations every week while you’…

It's undemocratic, because unless all lawyers are great and free for all, this path is a matter of money. Now, you may have bought into the libertarian marketing of freedom without democracy, after all so many Americans have, but there are extremely good reasons for why this is problematic, which are actually not that difficult to cobble together with some spare time.

Please try to stay civil.

In response to your assertion that the courts don’t work:

> If the laws that protect us aren’t good enough, then the solution is better laws, not to exempt some classes from the law!

Re: New Mexico is the second state to ban qualified immunity

#118

Post by ghayes » Thu, Apr 08, 2021, 8:14 AM UTC

noodlesUK wrote: post #4

What (if at all) does this mean about the immunity of federal officials working in New Mexico? Do the same rules apply, or is there still QI for them as they’re not state officials?

From the text[0]:

> A public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall not subject or cause to be subjected any resident of New Mexico ... to deprivation of any rights, privileges or immunities secured pursuant to the bill of rights ...

and:

> [a] "public body" means a state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico or any branch of government that receives public funding, including political subdivisions, special tax districts, school districts and institutions of higher education...

[0] https://legiscan.com/NM/text/HB4/2021

Re: New Mexico is the second state to ban qualified immunity

#119

Post by radlad » Thu, Apr 08, 2021, 8:16 AM UTC

twhb wrote: post #117

brnt wrote: post #110

Earlier quoted context omitted.

It's undemocratic, because unless all lawyers are great and free for all, this path is a matter of money. Now, you may have bought into the libertarian marketing of freedom without democracy, after all so many Americans have, but there are extremely good reasons for why this is problematic, which are actually not that difficult to cobble together with some spare time.

Please try to stay civil. In response to your assertion that the courts don’t work: > If the laws that protect us aren’t good enough, then the solution is better laws, not to exempt some classes from the law!

Nothing the parent said was uncivil. (I say this having largely agreed with your original comment.)

Re: New Mexico is the second state to ban qualified immunity

#120

Post by gwd » Thu, Apr 08, 2021, 8:18 AM UTC

stormbrew wrote: post #94

JumpCrisscross wrote: post #75

Earlier quoted context omitted.

> You see no issue with that, seriously? Qualified immunity isn't a get-out-of-jail-free card. It is released, for example, when a government official breaks clearly established law. (Counterfactual: the courts have been very narrow in interpreting what "clearly established" means.)

To expand on just how absurdly narrow courts interpret "clearly established", there's this example from the wikipedia page on qualified immunity[1] for eg. > Critics have cited examples such as a November 2019 ruling by the United States Court of Appeals for the Sixth Circuit, which found that an earlier court case ruling it unconstitutional for police to sic dogs on suspects who have surrendered by lying on the grou…

Even better is the police who just stole stuff, because there was no "clearly established" law against stealing stuff:

https://newrepublic.com/article/157342/supreme-court-police-...