4 ms·

Again I agree, but the original formulation of qualified immunity seemed a little more reasonable, although it was still wrong in my opinion. The original decis

Again I agree, but the original formulation of qualified immunity seemed a little more reasonable, although it was still wrong in my opinion. The original decision: > A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied. - https://www.leagle.com/decision/1967933386us5471842 https://www.leagle.com/decision/1967933386us5471842 I don't agree with this because ignorance of the law is not usually an excuse, but I imagine a majority of Congress might. However, the courts have gradually expanded "reasonably believed to be valid" to mean there must be "precisely factually on-point caselaw" determining the actions are unconstitutional. Sort of a frog in boiling water situation where a well-meaning member of Congress might not realize there was a problem until decades after the initial decision.

User23 6y ago
> I don't agree with this because ignorance of the law is not usually an excuse I think that mens rea[1] should be more broadly required. Our current system is such that virtually everyone is breaking the law and only enforcement and prosecutorial discretion protects us. [1]https://en.wikipedia.org/wiki/Mens_rea https://en.wikipedia.org/wiki/Mens_rea
- burkaman 6y ago
  This is a different issue, I think. Mens rea is about intent or "malice aforethought", but that doesn't mean you know what you're doing is illegal, it just means you are acting intentionally and not by mistake. See the different levels of mens rea in the US: https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code It's about understanding the consequences of your actions, nothing to do with knowledge of the law. Currently, if an officer violates your rights on purpose, but there's no "precisely factually on-point caselaw" deciding what they did is unconstitutional, then they're immune from prosecution. They had mens rea, but it doesn't matter.
  - nickff 6y ago
    The parent was correct, and you are changing to a definition used in a statute that was never enacted. The top description on the Wikipedia article says Mens Rea is "the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed."
    - burkaman 6y ago
      Clearly I'm not a lawyer so I'm not confident in this, you might be right. Is mens rea ever used that way in practice? I don't understand how you could prove that in court. A text message saying "I'm gonna kill that guy" might be evidence of intent, but nobody ever says "I'm gonna kill that guy, thereby committing a felony under US law". How could you possibly prove that somebody knew an action would be illegal? Would you allow the possibility that Wikipedia is wrong? I can't find any other reference that talks about knowledge of the law itself, and it logically doesn't make any sense. Also, "mens rea" itself is just a vague Latin phrase, so the only meaningful "definition" is how it's actually applied in the world.
      - hnick 6y ago
        > How could you possibly prove that somebody knew an action would be illegal? I'm far from an expert but I think usually the "reasonable" keyword applies to such things in law. A "reasonable" person would know killing is wrong - and they'll say you mightn't, too bad, pay attention to society. A "reasonable" person might not know some obscure tax law they broke by mistake so they have to make it right and pay it back, but not be punished too harshly otherwise. OTOH you'd expect an accountant to know so you could infer intent and they could be handled more sternly.
    - thaumasiotes 6y ago
      Where are you getting your information? Compare the mens rea requirements set forth in the New York State Penal Code (§15.05): (quoted in full) > Culpability; definitions of culpable mental states. > The following definitions are applicable to this chapter: > 1. "Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. > 2. "Knowingly." A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. > 3. "Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. > 4. "Criminal negligence." A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. As you can see, none of these care whether the person knows that producing the result in question will break the law. This is far and away the norm for mens rea; requirements of knowledge of the law are vanishingly rare. Note also that these are exactly the same categories as defined by the Model Penal Code. (Strict liability excluded.) The only change is that the word "purposefully" in the MPC was changed to "intentionally". So you're not even right that this is "a definition used in a statute that was never enacted".
rhizome 6y ago
That original formulation no longer exists, or maybe more accurate to say that it has been broadened into meaninglessness: officers no longer have to believe a law is valid in order to "reasonably" enforce it. That's right: they can stop you for violating made-up laws. Constitutionality doesn't even enter into it: "On Monday, the Supreme Court ruled that police stops are legal when the officer has a "reasonable suspicion" that a law is being broken—even if that law doesn't exist." https://www.theatlantic.com/national/archive/2014/12/when-cops-dont-know-the-law/383861/ https://www.theatlantic.com/national/archive/2014/12/when-co... https://www.themarshallproject.org/2015/08/03/how-the-supreme-court-made-it-legal-for-cops-to-pull-you-over-for-just-about-anything https://www.themarshallproject.org/2015/08/03/how-the-suprem... https://en.wikipedia.org/wiki/Heien_v._North_Carolina https://en.wikipedia.org/wiki/Heien_v._North_Carolina

User23 6y ago

> I don't agree with this because ignorance of the law is not usually an excuse I think that mens rea[1] should be more broadly required. Our current system is such that virtually everyone is breaking the law and only enforcement and prosecutorial discretion protects us. [1]https://en.wikipedia.org/wiki/Mens_rea https://en.wikipedia.org/wiki/Mens_rea

burkaman 6y ago
This is a different issue, I think. Mens rea is about intent or "malice aforethought", but that doesn't mean you know what you're doing is illegal, it just means you are acting intentionally and not by mistake. See the different levels of mens rea in the US: https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code It's about understanding the consequences of your actions, nothing to do with knowledge of the law. Currently, if an officer violates your rights on purpose, but there's no "precisely factually on-point caselaw" deciding what they did is unconstitutional, then they're immune from prosecution. They had mens rea, but it doesn't matter.
- nickff 6y ago
  The parent was correct, and you are changing to a definition used in a statute that was never enacted. The top description on the Wikipedia article says Mens Rea is "the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed."
  - burkaman 6y ago
    Clearly I'm not a lawyer so I'm not confident in this, you might be right. Is mens rea ever used that way in practice? I don't understand how you could prove that in court. A text message saying "I'm gonna kill that guy" might be evidence of intent, but nobody ever says "I'm gonna kill that guy, thereby committing a felony under US law". How could you possibly prove that somebody knew an action would be illegal? Would you allow the possibility that Wikipedia is wrong? I can't find any other reference that talks about knowledge of the law itself, and it logically doesn't make any sense. Also, "mens rea" itself is just a vague Latin phrase, so the only meaningful "definition" is how it's actually applied in the world.
    - hnick 6y ago
      > How could you possibly prove that somebody knew an action would be illegal? I'm far from an expert but I think usually the "reasonable" keyword applies to such things in law. A "reasonable" person would know killing is wrong - and they'll say you mightn't, too bad, pay attention to society. A "reasonable" person might not know some obscure tax law they broke by mistake so they have to make it right and pay it back, but not be punished too harshly otherwise. OTOH you'd expect an accountant to know so you could infer intent and they could be handled more sternly.
  - thaumasiotes 6y ago
    Where are you getting your information? Compare the mens rea requirements set forth in the New York State Penal Code (§15.05): (quoted in full) > Culpability; definitions of culpable mental states. > The following definitions are applicable to this chapter: > 1. "Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. > 2. "Knowingly." A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. > 3. "Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. > 4. "Criminal negligence." A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. As you can see, none of these care whether the person knows that producing the result in question will break the law. This is far and away the norm for mens rea; requirements of knowledge of the law are vanishingly rare. Note also that these are exactly the same categories as defined by the Model Penal Code. (Strict liability excluded.) The only change is that the word "purposefully" in the MPC was changed to "intentionally". So you're not even right that this is "a definition used in a statute that was never enacted".

rhizome 6y ago

That original formulation no longer exists, or maybe more accurate to say that it has been broadened into meaninglessness: officers no longer have to believe a law is valid in order to "reasonably" enforce it. That's right: they can stop you for violating made-up laws. Constitutionality doesn't even enter into it: "On Monday, the Supreme Court ruled that police stops are legal when the officer has a "reasonable suspicion" that a law is being broken—even if that law doesn't exist." https://www.theatlantic.com/national/archive/2014/12/when-cops-dont-know-the-law/383861/ https://www.theatlantic.com/national/archive/2014/12/when-co... https://www.themarshallproject.org/2015/08/03/how-the-supreme-court-made-it-legal-for-cops-to-pull-you-over-for-just-about-anything https://www.themarshallproject.org/2015/08/03/how-the-suprem... https://en.wikipedia.org/wiki/Heien_v._North_Carolina https://en.wikipedia.org/wiki/Heien_v._North_Carolina