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> The actual use of force by this president in his shameful photo op incident in front of the church has clearly demonstrated without a shadow of doubt that his

by bhupy 6y ago

> The actual use of force by this president in his shameful photo op incident in front of the church has clearly demonstrated without a shadow of doubt that his threat of disproportional violence against protesters - even for trivial purposes - is credible. No matter how "credible", Brandenburg v Ohio's overruled Schenck v US and Whitney v California, the latter of which held that speech that merely advocated violence could be made illegal. Hess v Indiana further clarified that speech that amounted to nothing more than advocacy of illegal action at some indefinite future time is protected by 1A. And finally, just because violence is disproportional, doesn't automatically make it "illegal". The threat of the use of legal force against vandalism, while "disproportionate", is entirely a valid use of speech for a politician, advocating a legal use of the police force. Your problem with this appears to be that police force is, today, legal. This is orthogonal to Trump's proclamations, and even more orthogonal to Facebook's platform.

dragonwriter 6y ago
> And finally, just because violence is disproportional, doesn't automatically make it "illegal". Yes, actually, it does. Specifically, police force that is not “objectively reasonable” in the circumstances in which it is used constitutes an unreasonable seizure under the Fourth Amendment [0], and is therefore directly prohibited by that Amendment for the federal government and prohibited by the Fourteenth Amendment, which has been held to fully incorporate the search and seizure provisions of the Fourth, for the States. It is, also, when done under color of law a federal crime (in certain cases, a capital crime) under 18 USC § 242 and a federal tort under 42 USC § 1983, both prohibiting deprivation of Constitutionally protected rights under color of law. > Your problem with this appears to be that police force is, today, legal. I don't know about the grandparent, but my problem is that federal officials, including law enforcement officers, are committing violations of the federal Constitution which are also federal crimes against people who are merely calling for accountability for what are, among other things, a systematic pattern of similar federal, including capital, crimes and Constitutional violations that federal (and state and local, which have concurrent jurisdiction) law enforcement have been a mixture of actively complicit in and non- and mal-feasant in failing to prosecute. [0] Graham v. Connor, 490 U.S. 386 (1989)
- bhupy 6y ago
  Yes, but we are not talking about an unreasonable seizure under the Fourth Amendment, we are talking about the use of police force to prevent vandalization, which is the topic of the current tweet/post in question. That's hardly ambiguous.
  - dragonwriter 6y ago
    > Yes, but we are not talking about an unreasonable seizure under the Fourth Amendment, we are talking about the use of police force to prevent vandalization, If it is objective unreasonable (which disproportionate force is) in the circumstances, use of police force is an unreasonable seizure under the Fourth Amendment; that's the holding of the Supreme Court case I cited.
    - bhupy 6y ago
      Yeah there's no precedent for the argument that "use of police force against vandalism is objectively unreasonable". If the "war on drugs" can be considered a legal/reasonable use of force (even though I personally disagree with it), you can make the same conclusion re: the war on defacement of public/private property. My point is that policing vandalism is not unreasonable, by any measure, and this is hardly ambiguous at all.
      - dragonwriter 6y ago
        > Yeah there's no precedent for the argument that "use of police force against vandalism is objectively unreasonable". Yes, pretty much every lawsuit that has been won (as many have been) with police use of force in protests has involved (1) the argument by police that the use of force was justified by the need to prevent an imminent threat of injuries to persons and property by arson, vandalism, etc., and (2) the determination by the court involved that the use of force involved was objectively unreasonable in the concrete circumstances that actually existed because it was disproportionate to the thrat that existed. I mean, since Graham v. Connor that's literally the standard that has to be met, and it has a number of times, so there is certainly precedent. > My point is that policing vandalism is not unreasonable “policing vandalism” may be reasonable, that doesn't make the particular use of force in any particular incident automatically reasonable just because vandalism is threatened or occurring. Disproportionate use of force is specifically what is generally the source of a finding that force is objectively unreasonable.

by bhupy 6y ago

dragonwriter 6y ago

> And finally, just because violence is disproportional, doesn't automatically make it "illegal". Yes, actually, it does. Specifically, police force that is not “objectively reasonable” in the circumstances in which it is used constitutes an unreasonable seizure under the Fourth Amendment [0], and is therefore directly prohibited by that Amendment for the federal government and prohibited by the Fourteenth Amendment, which has been held to fully incorporate the search and seizure provisions of the Fourth, for the States. It is, also, when done under color of law a federal crime (in certain cases, a capital crime) under 18 USC § 242 and a federal tort under 42 USC § 1983, both prohibiting deprivation of Constitutionally protected rights under color of law. > Your problem with this appears to be that police force is, today, legal. I don't know about the grandparent, but my problem is that federal officials, including law enforcement officers, are committing violations of the federal Constitution which are also federal crimes against people who are merely calling for accountability for what are, among other things, a systematic pattern of similar federal, including capital, crimes and Constitutional violations that federal (and state and local, which have concurrent jurisdiction) law enforcement have been a mixture of actively complicit in and non- and mal-feasant in failing to prosecute. [0] Graham v. Connor, 490 U.S. 386 (1989)

bhupy 6y ago
Yes, but we are not talking about an unreasonable seizure under the Fourth Amendment, we are talking about the use of police force to prevent vandalization, which is the topic of the current tweet/post in question. That's hardly ambiguous.
- dragonwriter 6y ago
  > Yes, but we are not talking about an unreasonable seizure under the Fourth Amendment, we are talking about the use of police force to prevent vandalization, If it is objective unreasonable (which disproportionate force is) in the circumstances, use of police force is an unreasonable seizure under the Fourth Amendment; that's the holding of the Supreme Court case I cited.
  - bhupy 6y ago
    Yeah there's no precedent for the argument that "use of police force against vandalism is objectively unreasonable". If the "war on drugs" can be considered a legal/reasonable use of force (even though I personally disagree with it), you can make the same conclusion re: the war on defacement of public/private property. My point is that policing vandalism is not unreasonable, by any measure, and this is hardly ambiguous at all.
    - dragonwriter 6y ago
      > Yeah there's no precedent for the argument that "use of police force against vandalism is objectively unreasonable". Yes, pretty much every lawsuit that has been won (as many have been) with police use of force in protests has involved (1) the argument by police that the use of force was justified by the need to prevent an imminent threat of injuries to persons and property by arson, vandalism, etc., and (2) the determination by the court involved that the use of force involved was objectively unreasonable in the concrete circumstances that actually existed because it was disproportionate to the thrat that existed. I mean, since Graham v. Connor that's literally the standard that has to be met, and it has a number of times, so there is certainly precedent. > My point is that policing vandalism is not unreasonable “policing vandalism” may be reasonable, that doesn't make the particular use of force in any particular incident automatically reasonable just because vandalism is threatened or occurring. Disproportionate use of force is specifically what is generally the source of a finding that force is objectively unreasonable.