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>A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-to-1 that Grant County District Attorney Jim Carpenter’s actions amounted to “a troubling

by duxup 2y ago

>A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-to-1 that Grant County District Attorney Jim Carpenter’s actions amounted to “a troubling example of the intrusion on Fourth Amendment rights” against illegal searches. >But all three judges upheld a lower court’s decision to grant Carpenter qualified immunity and dismiss the woman’s lawsuit. This is confusing, if there was no warrant, and they violated her 4th amendment rights… how do they get QI?

vessenes 2y ago
The facts are fairly complicated in this case. That said, seems like a better attorney might have done better?
- deleted 2y ago
  [deleted]
- superb_dev 2y ago
  Which facts are complicated here? The sherif in her home town got access to her the contents of her phone under dubious reasons, gossiped about her arrest, and showed off her nude photos. Seems pretty cut and dry to me
  - collingreen 2y ago
    Seriously - I'm struggling to even imagine a good faith version of sharing nude photos of someone else without their permission. Doing so after getting access to those photos through an abuse of power is horrifying.
    - UncleMeat 2y ago
      Sadly, the existence of a good faith version of the facts isn't really necessary for qualified immunity. You basically just need the court to say "there isn't a prior case with these exact facts demonstrating that it is a constitutional violation" and you are good to go. Even if everybody with a brain can look at the facts and say "well that's obviously a violation of rights" the court can happily say "nope there is some minor factual delta that means that we haven't explicitly ruled on this exact circumstance so how could a cop ever know that they were violating rights?"
      - collingreen 2y ago
        It's wild that ignorance of the law is ONLY an excuse for trained law enforcement. The rest of us do not get that leeway.
    - enoch_r 2y ago
      The good faith version of this would be that he is telling the truth, he didn't share or offer to share the photos with anyone, and the rumors the plaintiff heard about people seeing the photos were just rumors. (I think it's clear that at the very least, he mentioned the nude photos to at least one other person - otherwise no rumor could get started in the first place - which is obviously bad behavior, but not nearly as bad as actually sharing the photos.) Because the sharing of the photos with other people wasn't established by the evidence, the court was just ruling on whether the DA had violated the plaintiffs rights by transferring the data dump from the plaintiff's phone to the sheriff, and whether that violation was obvious/established enough from prior court rulings to revoke QI. It had nothing to do with sharing the photos themselves with anyone (the DA didn't know the data dump had the photos when he shared it).
      - LorenPechtel 2y ago
        I do not see a good faith case, period. I've come across compromising data over the years--and never have I referred to it in any way that would permit identification of the person. Either it warrants going to the police or it stays private, there's no in between.
  - anon84873628 2y ago
    The fact that she claimed her boyfriend is a sheriff's deputy, so his bosses wanted to look at her phone for evidence that he was involved in crimes. It allows them to claim they had a legitimate reason to share the data other than just ogling the photos. Which is all just to say: don't talk to cops and don't agree to searches, even if you think dating one will help you get out of trouble.
    - jimt1234 2y ago
      Don't date cops. Just don't. ... Years ago, a friend of mine went on a few dates with a cop. She ended up not being interested, so she broke it off. Then the harassment began. Her phone/landline rang non-stop. Cops in marked cars would sit outside her house. He even showed up at her work, talking to her co-workers, claiming she was under investigation for some kind of fraud (she wasn't). And, strange dudes started following her in the subway (NYC). Who do you call when you're being harassed by the people you're supposed to call when you're being harassed? ... Luckily for her, she had a cousin that was a 20-year NYPD veteran. Him and some other veterans cops went to "have a talk" with the younger cop. Problem solved, but it was a total nightmare for her.
    - thephyber 2y ago
      > don't talk to cops and don't agree to searches The people who trust cops are the most at risk of this. Those who don’t know their rights or who are afraid to assert them are also at risk. The people who have already internalized this statement are least at risk. But we are all at risk when police are corrupt. And the fact that police who do these things still have jobs means that the number of corrupt officers is far larger than it should be.
deleted 2y ago
[deleted]
mandevil 2y ago
The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualified Immunity is that the constitutional violation (in this case, the violation of her 4th Amendment rights) needs to have been clearly found in previous cases in this particular circuit (or by the Supreme Court itself). These sorts of search and seizure cases hinge on things like "she signed a document allowing another agency to search her phone, but not share it with another one, and they want to search for anything that might implicate her boyfriend an officer for Brady violations" and the 9th Circuit had never found this kind of sharing without consent or warrant for searching your own officers history to be a constitutional violation. So in this case, she can't sue for damages etc. But the next case that exactly meets these parameters with no novel grounds for argument, they can be sued. Not surprisingly, clever lawyers find a way to make something slightly novel in most every one of these cases, at least in one particular circuit, and so basically nothing of consequence happens. This entire doctrine only exists because the Supreme Court invented it, 8-1, in the 1960's to prevent Freedom Riders from suing courts and police officers who arrested them for trying to racially integrate public places. And somehow it's gotten worse over time.
- opo 2y ago
  >...The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualified Immunity is that the constitutional violation (in this case, the violation of her 4th Amendment rights) needs to have been clearly found in previous cases in this particular circuit (or by the Supreme Court itself). The modern over-expansion of QI actually started in 1982: >The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982). Since then, while several justices (Kennedy, Scalia, Thomas, Sotomayor ) have sometimes dissented and criticized the over expansion of QI, the overall court doesn't seem to want to touch it. https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure#creation-evolution-qualified-immunity https://www.cato.org/policy-analysis/qualified-immunity-lega...
  - 2y ago
psunavy03 2y ago
Not a lawyer, but as I understand it, the original doctrine of qualified immunity was designed to shield law enforcement acting in good faith from frivolous lawsuits. But it's morphed into . . . this.
- deleted 2y ago
  [deleted]
- palunon 2y ago
  No, it was designed to shield law enforcement officers violating the Ku Klux Klan Act from legitimate lawsuits. See [1], which is the case where it started. Qualified immunity is only relevant when the lawsuit is not frivolous anyway... 1: https://en.wikipedia.org/wiki/Pierson_v._Ray https://en.wikipedia.org/wiki/Pierson_v._Ray
- ikanreed 2y ago
  Part of me wonders whether it is sincerely possible to violate someone's constitutional rights "in good faith". I feel like being a functional police officer should entail knowing the limits on your power, in the same way you're obligated to know what laws you're actually enforcing.
  - ceejayoz 2y ago
    > Part of me wonders whether it is sincerely possible to violate someone's constitutional rights "in good faith". Person running down the sidewalk pursued by someone shouting "stop, thief!" gets tackled by a cop and cuffed. Turns out to be mistaken identity or they'd done self-checkout. Rights violation? Yes. Good faith? Also, yes.
    - autoexec 2y ago
      > Person running down the sidewalk pursued by someone shouting "stop, thief!" gets tackled by a cop and cuffed. Turns out to be mistaken identity or they'd done self-checkout. Not sure that'd be a rights violation. The cop would be able to say they had reasonable suspicion that a crime was being committed justifying the detention. Excessive force is a possibility depending on the details, such as the extent of the injuries that resulted from being forced to the ground or if the cop ordered the runner to stop before tackling them.
axus 2y ago
From the article, I took the court's final decision as "nobody said you couldn't, but we're saying it now, so don't get caught doing it again". Despite the fourth amendment clearly saying they couldn't.
- UncleMeat 2y ago
  This is how QI cases work nowadays. The problem is that you only need a teeny tiny difference in facts for the prior situation to not count and for QI to be granted. "Oh, we've only found that shooting a kid within state borders is a violation of rights and this time the cop shot a kid across state borders so they clearly can't be expected to know that this is a violation of rights: QI granted." The net effect is that it is remarkably difficult to sue cops who violate your rights since there is almost always going to be some minor factual thing that makes your case "unique".
nashashmi 2y ago
fourth amendment prevented prosecution from unwarranted search. It did not make the search illegal. The police did something somewhat illegal and got qualified immunity for that thing.

by duxup 2y ago

vessenes 2y ago

The facts are fairly complicated in this case. That said, seems like a better attorney might have done better?

deleted 2y ago
[deleted]
superb_dev 2y ago
Which facts are complicated here? The sherif in her home town got access to her the contents of her phone under dubious reasons, gossiped about her arrest, and showed off her nude photos. Seems pretty cut and dry to me
- collingreen 2y ago
  Seriously - I'm struggling to even imagine a good faith version of sharing nude photos of someone else without their permission. Doing so after getting access to those photos through an abuse of power is horrifying.
  - UncleMeat 2y ago
    Sadly, the existence of a good faith version of the facts isn't really necessary for qualified immunity. You basically just need the court to say "there isn't a prior case with these exact facts demonstrating that it is a constitutional violation" and you are good to go. Even if everybody with a brain can look at the facts and say "well that's obviously a violation of rights" the court can happily say "nope there is some minor factual delta that means that we haven't explicitly ruled on this exact circumstance so how could a cop ever know that they were violating rights?"
    - collingreen 2y ago
      It's wild that ignorance of the law is ONLY an excuse for trained law enforcement. The rest of us do not get that leeway.
  - enoch_r 2y ago
    The good faith version of this would be that he is telling the truth, he didn't share or offer to share the photos with anyone, and the rumors the plaintiff heard about people seeing the photos were just rumors. (I think it's clear that at the very least, he mentioned the nude photos to at least one other person - otherwise no rumor could get started in the first place - which is obviously bad behavior, but not nearly as bad as actually sharing the photos.) Because the sharing of the photos with other people wasn't established by the evidence, the court was just ruling on whether the DA had violated the plaintiffs rights by transferring the data dump from the plaintiff's phone to the sheriff, and whether that violation was obvious/established enough from prior court rulings to revoke QI. It had nothing to do with sharing the photos themselves with anyone (the DA didn't know the data dump had the photos when he shared it).
    - LorenPechtel 2y ago
      I do not see a good faith case, period. I've come across compromising data over the years--and never have I referred to it in any way that would permit identification of the person. Either it warrants going to the police or it stays private, there's no in between.
- anon84873628 2y ago
  The fact that she claimed her boyfriend is a sheriff's deputy, so his bosses wanted to look at her phone for evidence that he was involved in crimes. It allows them to claim they had a legitimate reason to share the data other than just ogling the photos. Which is all just to say: don't talk to cops and don't agree to searches, even if you think dating one will help you get out of trouble.
  - jimt1234 2y ago
    Don't date cops. Just don't. ... Years ago, a friend of mine went on a few dates with a cop. She ended up not being interested, so she broke it off. Then the harassment began. Her phone/landline rang non-stop. Cops in marked cars would sit outside her house. He even showed up at her work, talking to her co-workers, claiming she was under investigation for some kind of fraud (she wasn't). And, strange dudes started following her in the subway (NYC). Who do you call when you're being harassed by the people you're supposed to call when you're being harassed? ... Luckily for her, she had a cousin that was a 20-year NYPD veteran. Him and some other veterans cops went to "have a talk" with the younger cop. Problem solved, but it was a total nightmare for her.
  - thephyber 2y ago
    > don't talk to cops and don't agree to searches The people who trust cops are the most at risk of this. Those who don’t know their rights or who are afraid to assert them are also at risk. The people who have already internalized this statement are least at risk. But we are all at risk when police are corrupt. And the fact that police who do these things still have jobs means that the number of corrupt officers is far larger than it should be.

deleted 2y ago

[deleted]

mandevil 2y ago

The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualified Immunity is that the constitutional violation (in this case, the violation of her 4th Amendment rights) needs to have been clearly found in previous cases in this particular circuit (or by the Supreme Court itself). These sorts of search and seizure cases hinge on things like "she signed a document allowing another agency to search her phone, but not share it with another one, and they want to search for anything that might implicate her boyfriend an officer for Brady violations" and the 9th Circuit had never found this kind of sharing without consent or warrant for searching your own officers history to be a constitutional violation. So in this case, she can't sue for damages etc. But the next case that exactly meets these parameters with no novel grounds for argument, they can be sued. Not surprisingly, clever lawyers find a way to make something slightly novel in most every one of these cases, at least in one particular circuit, and so basically nothing of consequence happens. This entire doctrine only exists because the Supreme Court invented it, 8-1, in the 1960's to prevent Freedom Riders from suing courts and police officers who arrested them for trying to racially integrate public places. And somehow it's gotten worse over time.

opo 2y ago
>...The way that the modern Supreme Court (starting with its extremely conservative turn around 2005 with the replacement of O'Connor with Alito) has treated Qualified Immunity is that the constitutional violation (in this case, the violation of her 4th Amendment rights) needs to have been clearly found in previous cases in this particular circuit (or by the Supreme Court itself). The modern over-expansion of QI actually started in 1982: >The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982). Since then, while several justices (Kennedy, Scalia, Thomas, Sotomayor ) have sometimes dissented and criticized the over expansion of QI, the overall court doesn't seem to want to touch it. https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure#creation-evolution-qualified-immunity https://www.cato.org/policy-analysis/qualified-immunity-lega...
- 2y ago

psunavy03 2y ago

Not a lawyer, but as I understand it, the original doctrine of qualified immunity was designed to shield law enforcement acting in good faith from frivolous lawsuits. But it's morphed into . . . this.

deleted 2y ago
[deleted]
palunon 2y ago
No, it was designed to shield law enforcement officers violating the Ku Klux Klan Act from legitimate lawsuits. See [1], which is the case where it started. Qualified immunity is only relevant when the lawsuit is not frivolous anyway... 1: https://en.wikipedia.org/wiki/Pierson_v._Ray https://en.wikipedia.org/wiki/Pierson_v._Ray
ikanreed 2y ago
Part of me wonders whether it is sincerely possible to violate someone's constitutional rights "in good faith". I feel like being a functional police officer should entail knowing the limits on your power, in the same way you're obligated to know what laws you're actually enforcing.
- ceejayoz 2y ago
  > Part of me wonders whether it is sincerely possible to violate someone's constitutional rights "in good faith". Person running down the sidewalk pursued by someone shouting "stop, thief!" gets tackled by a cop and cuffed. Turns out to be mistaken identity or they'd done self-checkout. Rights violation? Yes. Good faith? Also, yes.
  - autoexec 2y ago
    > Person running down the sidewalk pursued by someone shouting "stop, thief!" gets tackled by a cop and cuffed. Turns out to be mistaken identity or they'd done self-checkout. Not sure that'd be a rights violation. The cop would be able to say they had reasonable suspicion that a crime was being committed justifying the detention. Excessive force is a possibility depending on the details, such as the extent of the injuries that resulted from being forced to the ground or if the cop ordered the runner to stop before tackling them.

axus 2y ago

From the article, I took the court's final decision as "nobody said you couldn't, but we're saying it now, so don't get caught doing it again". Despite the fourth amendment clearly saying they couldn't.

UncleMeat 2y ago
This is how QI cases work nowadays. The problem is that you only need a teeny tiny difference in facts for the prior situation to not count and for QI to be granted. "Oh, we've only found that shooting a kid within state borders is a violation of rights and this time the cop shot a kid across state borders so they clearly can't be expected to know that this is a violation of rights: QI granted." The net effect is that it is remarkably difficult to sue cops who violate your rights since there is almost always going to be some minor factual thing that makes your case "unique".

nashashmi 2y ago

fourth amendment prevented prosecution from unwarranted search. It did not make the search illegal. The police did something somewhat illegal and got qualified immunity for that thing.