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The first sentence is correct insofar as the criminal proceedings are concerned, but assuming that the targets of the searches have had their rights violated th

The first sentence is correct insofar as the criminal proceedings are concerned, but assuming that the targets of the searches have had their rights violated they could very well be denied their ability to sue for restitution under Qualified Immunity. The second sentence is just wrong. Qualified immunity is a shield from civil actions without regard to if the violation was/was not malicious or with/without intent. This is from one of the IJ pages I linked: "Does qualified immunity apply when government workers intentionally violate the law? Yes. Qualified immunity applies even when officials intentionally or recklessly violate the law. The primary consideration in a qualified immunity analysis is whether there is an earlier court case specifically stating that the particular actions of an official are unconstitutional. So, for example, the Ninth Circuit U.S Court of Appeals held that police accused of stealing $225,000 while executing a search warrant were entitled to qualified immunity because that court had 'never addressed whether the theft of property covered by the terms of a search warrant…violates the Fourth Amendment.' It did not matter 'that virtually every human society teaches that theft generally is morally wrong.'" -- (https://ij.org/issues/project-on-immunity-and-accountability/frequently-asked-questions-about-ending-qualified-immunity/#faq-question-1688414611964 https://ij.org/issues/project-on-immunity-and-accountability...) Or more directly from the summary of the Ninth Circuit Court of Appeals opinion: "The panel held that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers were entitled to qualified immunity." https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/17-16756.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/1... Theft requires criminality and intent and is arguably malicious. Yet, the court held that they couldn't even be sued on the basis of qualified immunity being applicable... that's not saying that the victims sued and lost... but that the suit was never heard on those grounds. At least the court went on to say that the police should have known theft was morally wrong: "The panel held that although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment. The panel further held that the Fourth Circuit’s unpublished decision in Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004)—the only case law that the time of the incident holding that the theft of property pursuant to a warrant violates the Fourth Amendment—did not put the 'constitutional question beyond debate.'" Because the question was not previously answered, the officers received the de facto protection of qualified immunity and not having to face the civil suit, criminality/intent/maliciousness notwithstanding.

austin-cheney 1mo ago
What immunity applies here? The officers were fired and remain subjects of an active ongoing criminal investigation, according to the article.
- sbuttgereit 1mo ago
  At some level, we're talking past each other. Your initial observation is correct so long as we're willing to limit the scope of our comments to the specific facts of the case being reported, similar to how a criminal jury would most likely be restricted in such a review of fact/law. In that sense you're right: nothing new here, this is simply a case of certain officers misusing policing tools, not unlike had they used police resources to wiretap their victims for their own personal interests. But what many of us are commenting on isn't the specific, narrow details of this case, but the implications that this case carries more broadly. Many of us believe approaching this case with the narrowness of a jury misses the point that the barrier to these kinds of abuse are substantially lower with these new technologies than was true in decades past. New technologies dramatically reduce the cost (time, money, expertise) of perpetrating such violations of personal privacy and rights; it use to be that it was costly enough that surveilling a suspect had to be a directed effort... now we capture all the data and only direct the computer assisted analysis. That what was done here falls under "decades old" provisions of law meant to prevent such specific abuse is great, but that doesn't change that what is reported here has a substantial lower barrier for abuse than was true in decades past. And even then those decades old safeguards only apply when there is government will to apply them... in this case there appears to be... but that isn't always true and when the abuse is systematic abuse by the government itself all bets are off in regard to such safeguards. Many of us think that this case is another example of these new issues worthy of opening the broader discussion about the implications that this case raises rather than looking at with a clinically narrow examination of the facts of the case. Qualified immunity and its mechanics specifically blocks one avenue for redress by implementing the default assumption that government officials are protected unless a previous finding of constitutional violation exists involving the specific details of the complaint. Given that these aren't decades old technologies and the violations wouldn't have been tested before, qualified immunity is much more likely to be blocked in a case like this than not: you'd very likely need to get the US Supreme Court to rule to establish such a precedent. To answer your specific question: "What immunity applies here?" The answer is qualified immunity is almost certainly to be invoked if any of the victims chose to seek remedy for their denial of rights by these officers in a civil setting. In fact, one of my points is that it absolutely applies by default unless the plaintiffs in such a suit can demonstrate that prior case law settled the question that using something like Flock cameras for surveilling them without a warrant is a violation of their constitutional rights. Absent that applicable case law: qualified immunity would seem to apply by default. Do we know that it has been applied? No. In fact the article is silent about whether victims have even been notified that they were the target of such surveillance or if civil cases have been filed. Even if not filed, the very nature of qualified immunity, and its own decades long protections of such violations, may be sufficient discouragement to even file such a claim absent clear supporting case law.

austin-cheney 1mo ago

What immunity applies here? The officers were fired and remain subjects of an active ongoing criminal investigation, according to the article.

sbuttgereit 1mo ago
At some level, we're talking past each other. Your initial observation is correct so long as we're willing to limit the scope of our comments to the specific facts of the case being reported, similar to how a criminal jury would most likely be restricted in such a review of fact/law. In that sense you're right: nothing new here, this is simply a case of certain officers misusing policing tools, not unlike had they used police resources to wiretap their victims for their own personal interests. But what many of us are commenting on isn't the specific, narrow details of this case, but the implications that this case carries more broadly. Many of us believe approaching this case with the narrowness of a jury misses the point that the barrier to these kinds of abuse are substantially lower with these new technologies than was true in decades past. New technologies dramatically reduce the cost (time, money, expertise) of perpetrating such violations of personal privacy and rights; it use to be that it was costly enough that surveilling a suspect had to be a directed effort... now we capture all the data and only direct the computer assisted analysis. That what was done here falls under "decades old" provisions of law meant to prevent such specific abuse is great, but that doesn't change that what is reported here has a substantial lower barrier for abuse than was true in decades past. And even then those decades old safeguards only apply when there is government will to apply them... in this case there appears to be... but that isn't always true and when the abuse is systematic abuse by the government itself all bets are off in regard to such safeguards. Many of us think that this case is another example of these new issues worthy of opening the broader discussion about the implications that this case raises rather than looking at with a clinically narrow examination of the facts of the case. Qualified immunity and its mechanics specifically blocks one avenue for redress by implementing the default assumption that government officials are protected unless a previous finding of constitutional violation exists involving the specific details of the complaint. Given that these aren't decades old technologies and the violations wouldn't have been tested before, qualified immunity is much more likely to be blocked in a case like this than not: you'd very likely need to get the US Supreme Court to rule to establish such a precedent. To answer your specific question: "What immunity applies here?" The answer is qualified immunity is almost certainly to be invoked if any of the victims chose to seek remedy for their denial of rights by these officers in a civil setting. In fact, one of my points is that it absolutely applies by default unless the plaintiffs in such a suit can demonstrate that prior case law settled the question that using something like Flock cameras for surveilling them without a warrant is a violation of their constitutional rights. Absent that applicable case law: qualified immunity would seem to apply by default. Do we know that it has been applied? No. In fact the article is silent about whether victims have even been notified that they were the target of such surveillance or if civil cases have been filed. Even if not filed, the very nature of qualified immunity, and its own decades long protections of such violations, may be sufficient discouragement to even file such a claim absent clear supporting case law.