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mark edward marchiafava
Regular Member
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Posted: Sat Oct 17th, 2009 01:17 pm |
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No, I'm not incorrect, you are.
But, once again, it's a matter of someone refusing to believe something which conflicts with what they perceive as the truth.
Last edited on Sat Oct 17th, 2009 01:40 pm by mark edward marchiafava
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Seigi
Regular Member
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Posted: Sat Oct 17th, 2009 04:38 pm |
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4sooth wrote: Everyone who feels this man was only "inconvenienced" hence "no harm done" should be aware of the 10th circuit decision in New Mexico were an open carrier was removed from a movie theatre, escorted outside, disarmed briefly and released. This event lasted about 10 minutes. His vehicle was not searched, he was not handcuffed nor was he put on the ground.
All that is necessary for you to prevail in a USC:1983 action is to show that 1. Your rights were violated, 2. This was done under color of law.
In the above the 10th circuit found this to be the case. OC is not illegal in New Mexico so the police had no RAS to interface with this man.
No RAS-- the officers have no qualified immunity.$20000 plus from the dept. and he is suing the officers individually.
Harlow vs Fitzgerald tells us that public officials are required as a matter of law to personally know the law governing their actions. The court cited a 30 YEAR OLD case as being sufficient indication their actions were illegal!
Recent Georgia, State vs Jones,289 Ga. App. 176 (2008) case law
relative to the illegal seizure of a firearm from the interior of an auto relative to a "traffic" stop. In this one the officer explained it was his personal policy to search vehicles at his whim and seize any firearms he found. How long (and with dept. approval) had this officer been willfully violating the rights of the citizens? Possibly for years!
Summary motion for dismissal granted. Hope he is suing.
What happened to our local guy is far more egregious and with a good attorney he will probably win a judgement in his favor. Emphasis added.
A note to readers:
Louisiana is in the 5th circuit. Court decisions from New Mexico and Georgia are from the 10th and 11th circuits, respectively, and are thus not "binding" only "persuasive." Binding means a court must either follow a precedent or explain how it doesn't apply by distinguishing it from the fact set at hand (possibly via trivial means, although the judge will contend otherwise - hopefully it can then be appealed to a less biased judge). Persuasive means that a court can ignore a case if it's inconvenient but can use it to back up their opinion if it agrees with them.
Note also that in the State v. Jones case charges were dropped against the defendant because of improper police behavior. That doesn't mean that the defendant was then able to turn around and successfully sue - it is possible, in the absence of other authority, that as a matter of law his only remedy was the dismissal of charges. Civil and criminal law can have different standards, thus, in a civil suit, "acquiescence cannot substitute for free consent" may not be relevant - maybe free consent isn't required, maybe acquiescence alone is sufficient to destroy the civil suit. Not that I believe so, but a judge might, and even in a 11th circuit district court, where State v. Jones is binding, that line of thought might be sufficient to distinguish the case, in the absence of other authority.
Harlow v. Fitzgerald, however, is a US Supreme Court case and is binding on all courts. If anyone would like to go look it up: Harlow v. Fitzgerald, 457 U.S. 800 (U.S. 1982) That's US Reporter, Volume 457, page 800.
According to Lexis this case has been cited at least 21,937 times. Also according to Lexis some of these, how many I do not know, have been "possibly negative." So perhaps it gets distinguished often, or perhaps there's another US Supreme Court case out there that undermines it.
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georg jetson
Regular Member
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Posted: Mon Oct 19th, 2009 11:36 pm |
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Now that's an informative post Seigi!!! Don't know if you're an attorney... if not, we need more learned citizens around like yourself...
Yes, it's EXTREMELY important when building a case to check 2 things...
1. Is the case relevant? Jurisdiction, subject etc...
2. Shepardize the case... IOW, make sure a newer case hasn't changed presedent.
Last edited on Mon Oct 19th, 2009 11:38 pm by georg jetson
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