The One Weird Trick Judges Use to Deal With Facts They Don't Like

[In It to Win It]

B&S

In a legal opinion, judges are supposed to back every assertion with a citation to a source, like a statute or a previous case. Providing detailed references to existing authority helps show that an outcome is based on law, not just vibes.

Sometimes, however, it is really just turtles all the way down, and tracing each citation backward reveals that the original principle rests on nothing but air. So it is with federal courts discussing the ostensibly unique dangers that police officers face during traffic stops—a danger that judges have long used to justify allowing the cops conducting those traffic stops to do whatever they want.

A recent Fourth Circuit case, Sharpe v. Winterville, shows how these house-of-cards decisions unfold. Sharpe is about whether people can film the police making traffic stops, and the holding—that a blanket prohibition on live-streaming police interactions could violate the First Amendment—isn’t terrible. Along the way, though, the three-judge panel spends no small amount of time discussing the issue of the danger of traffic stops to cops. When that happens, the opinion unravels quickly.

Dijon Sharpe was a passenger in a car stopped by police in Winterville, North Carolina. During the stop, he started live-streaming on Facebook. One of the officers tried to reach through the window and grab Sharpe’s phone; “We ain’t gonna do Facebook Live because that’s an officer safety issue,” he said. Later, the same officer explained, “That lets everybody y’all follow on Facebook know that we’re out here. There might be just one me next time.” The officers threatened to arrest Sharpe if he streamed to Facebook Live again.

Ultimately, the Fourth Circuit held that Sharpe had credibly alleged a First Amendment violation against the town of Winterville, to the extent that it had an informal policy prohibiting livestreaming. However, the court also decided the officer was entitled to qualified immunity, as there was no “controlling authority” in North Carolina to let the officer know that stopping someone from livestreaming violated the First Amendment. As a result, Sharpe can pursue his claims against the town, but not the cop.

But this isn’t really a story about qualified immunity. This is a story about how judges help transform police mythology into federal law that prevents victims of police abuse from holding their abusers accountable.

[brooklynite]

1. Point of order: the 3 Judge Panel was unanimous.....

....including Judge Nachmanoff, appointed by President Biden.

And the ruling overturned the municipal policy against live-streaming police encounters. What it dropped was civil action against the POLICE OFFICER who was implementing the MUNICIPAL policy. Nothing wrong with the ruling.

[dpibel]

2. None of which, of course,

has anything to do with the subject of the article.

[brooklynite]

3. The subject of the article in an opinion which is legally and politically incorrect

I bothered to actually read the Court ruling.

[dpibel]

7. You very clearly do not understand

the point the article is making.

Hint: It's not really about whether this particular opinion is right or wrong.

But do carry on.

[brooklynite]

11. What the article is saying is that the Judges WANT to find a way around the First Amendment...

That includes one of President Biden's Judges.

I give him more credit than the author does.

[dsc]

4. How is this different from say Russian soldiers following Putin's clearly illegal orders?

This isn't even a close call. Of course one can video the police and stream it when they are in public doing their jobs. That informal policy was blatantly illegal on its face. Just like those Russian soldiers officers need to be held accountable when they break the law or undermine the constitution. If my school had an informal policy of banning shirts that were pro Trump and I foolishly chose to enforce it, I would, justifiably be sued for doing so.

[brooklynite]

5. It IS an illegal order and the Court said so...

However this is about a CIVIL (not criminal) case against the Police officer. The Court's ruling was that the appropriate target of the civil suit was the municipality.

And again, I'll point out the Biden's Judge concurred.

[The Magistrate]

8. And In That, Sir, They Are Wrong

The municipality is wrong for the policy, it is clearly unconstitutional.

The officer is personally responsible for his actions, which clearly violated a citizen's rights under the Constitution.

So long as police officers face neither financial nor penal penalties for egregious misconduct, egregious misconduct will continue unabated.


Even under the ludicrously lax standards of the wholly judge-made concept of 'qualified immunity', the officer's action was one any reasonable person can see violates clearly established rights. Anyone who has actually dealt with police will be aware of the breadth of an officer's 'on the spot' discretion when it comes to enforcement of the law, let alone adherence to policy.

[In It to Win It]

9. And that is the broader point of the piece. You hit the nail on the head

So long as police officers face neither financial nor penal penalties for egregious misconduct, egregious misconduct will continue unabated.

It's not about the decision in one case, but rather a string of cases or decades-long pattern that gives individual law enforcement officers the biggest benefit of the doubt and wide latitude to fuck up and not be held accountable for it... and to then enshrine that in binding precedents.

[The Magistrate]

10. Thank You

[dsc]

12. he had no choice thanks to qualified immunity

which is a judicially invented get out of lawsuit free card for cops. This case is vastly less egregious than many but this is still outrageous. It is hard to see any way in which this isn't known to be illegal yet due to supposed lack of notice he is free as a bird from any consequences. Imagine this jurisprudence applying to teachers or doctors or literally anyone else. you can't because it never would.

[The Magistrate]

6. I Have Yet To See An Instance Where 'Qualified Immunity' Was Granted An Officer

Where the officer's action did not clearly violate 'constitutional rights of which a reasonable person would have known'.

Police officers should be held responsible for their actions just like anyone else. In fact, as sworn agents of the state, they ought to be held to stricter standards than citizens are generally held to, whether in regard to acts of violence, or infringement on a citizen's rights.

It's getting to a state which begs for 'pro-tip' or something similar: If you don't punish bad behavior, you get more of it. I doubt you could find a police officer who does not agree with this statement. That police will not apply it to themselves concerning behavior that outrages the public means that police honestly don't think brutalizing people and hiding evidence they have done so is wrong, and consider doing both either necessary or enjoyable parts of their trade.

If a police officer claims not to know an action violates a citizen's rights, the officer has confessed not being fit for the job, and should be fired on the spot. Just as when a police officer claims to have been in such fear for their lives they killed a person who proved unarmed, or when a police officer claims a person in restraints was putting up such a resistance to arrest the officer had to kill them: an officer who has done such things should be branded a cruel coward, unfit for law enforcement duties, or to reside anywhere but the state penitentiary, in general population like any other violent felon.