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May 4, 2014, 02:25 PM | #76 | ||
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There appears to be some confusion among the circuits however, if you have indisputable proof that the Superior Commissioner, City/County/State Supervisor, et al, knew that such action was a civil rights violation and still failed to provide adequate supervision or a change of conduct that would alleviate the violation. While certainly the individual would be responsible in a § 1983 suit, the municipality seldom is. That's an extremely high hurdle to overcome, to get around the Monell exclusion. And that's assuming the circuit you are in, allows such an exclusion. It is something the Supreme Court will have to ultimately decide. I'm pretty sure that the 9th is in line with the 8th. So while the individuals running the County/City may be liable, the municipality will not be. I hope this clarifies what you are reading, Jim. |
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May 4, 2014, 02:40 PM | #77 | |||
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In other words, a city/county entity may not be held liable simply because it employs a tortfeasor, or because of an isolated incident of unconstitutional behavior on the part of one of its employees. However, it can be held liable where it can be shown that a policy, practice, or custom of the entity was a moving force behind the violation. It can also be held liable where the one "bad actor" is a policymaker for the entity. Quote:
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May 4, 2014, 03:33 PM | #78 |
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Although it feels like justice for a local government to be held liable, nothing brings reality home quite like an official getting personally sued. Good luck filling that empty position with another willing violator.
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May 4, 2014, 04:23 PM | #79 | |
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And the LA county could be on the hook because the one bad actor, in this case the Sheriff of LA County, is a policymaker for the entity- obviously because the policy he's making is violating the right, willfully ignoring the judgement just handed to his virtual neighbor for the same thing? |
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May 4, 2014, 09:12 PM | #80 |
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Many municipal governments carry insurance which will cover their employee's acts, including civil rights violations even if the judgment is against the employee and not the government. A judgment against a police officer can affect the rates a city pays for that insurance.
However, insurance policies typically exclude punitive damages and exclude acts which are criminal. I'm sure that's why the SPD lawsuit settled without any punitive damages -- it would have let the insurance company off the hook with the plaintiff's recourse to seek collection on the police officer's personal assets. |
May 5, 2014, 08:33 AM | #81 |
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It appears Drake has been denied cert
They have denied cert. in Drake v. Jerejian. by Amy Howe 6:31 AM Comment (1) - See more at: http://live.scotusblog.com/Event/Liv....JpuloDew.dpuf |
May 5, 2014, 08:37 AM | #82 |
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Does that make the 9th more or less likely grant en banc?
If they either decline en banc, or uphold it, then what? Do they decline cert here too as they don't want to touch the issue yet? |
May 5, 2014, 08:55 AM | #83 |
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And the official orders:
http://www.supremecourt.gov/orders/c...14zor_m6io.pdf I don't know how this affects the 9th. I have a gut feeling they will now act, and we'll see the antis out in full force, overturning Peruta. Then Peruta can be the next case to be denied cert? Ah, it's a beautiful day outside, I need some fresh air |
May 5, 2014, 10:11 AM | #84 | |
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So for me I'm not sure what moot means . Gore had a press release stating he did not need any clarification as to how to interpret the ruling so what are they asking of him ? The case is in no way moot to him . It is the very thing he is waiting for in order to change his issuing policy . The letter is clear , I do not meet the requierments of good cause at this time . Sounds to me he has not changed anything .
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May 5, 2014, 12:05 PM | #85 |
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I dunno what this means for the 9th. Gore has to reply by the 15th of this month, then the panel will decide about Harris' status (by end of May?). The the entire Circuit must vote on en banc (2-3 weeks?).
As good as the majority opinion is, the anti's don't care. Their aversion to proles having privileges similar to theirs is a gut feeling, not an intellectual weighing of evidence. I guess pessimism is a reasonable frame of mind.
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May 5, 2014, 12:22 PM | #86 | |
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The lower courts are doing everything in their power to eviscerate Heller and McDonald. We have a very real doctrinal question, and we have a circuit split. Why to they continue to avoid the issue? The two possibilities I see are that they feel they can't be bothered, or they're afraid of political fallout. In either case, anyone concerned with civil liberties (pro-gun or not) should be very concerned.
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May 5, 2014, 12:50 PM | #87 |
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They have waited this long. I can't imagine why they wouldn't wait to see how things shake out in the Ninth Circuit. For them I think the issue is almost, but not quite ripe.
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May 5, 2014, 02:31 PM | #88 | |
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First, things have shaken out in the 9th. The opinion is out there, and was already cited before SCOTUS (in Drake). The case may never go en banc, so to the outside world, it's a done deal. Even if it's nuked, the split with the 7th remains, and resolving splits is a major function of SCOTUS. 2nd, why on earth do they care what the 9th might do en banc? Is one of the lower judges going to write some amazing reversal or affirmation of Peruta that illuminates the whole issue for the poor, confused SCOTUS Justices? "Ohhhhhh, now I get it....OK, yeah, that clears it up for me, thanks" |
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May 5, 2014, 02:38 PM | #89 |
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SCOTUS is concentrating their efforts on more mundane things, like prayer before town meetings. Forget the 2A.
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May 5, 2014, 02:44 PM | #90 | ||
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Has the SCOTUS ever before declared a right to be fundamental and incorporated, and then refused to uphold it ever again? Last edited by maestro pistolero; May 5, 2014 at 02:51 PM. |
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May 5, 2014, 02:53 PM | #91 |
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Well now there's no excuse for the DC district court to rule in that carry case.
And let's not forget "Peruta" is actually three cases...Peruta, Richards (Yolo County CA) and Baker (Hawaii). If the current three-judge ruling stands through the en banc process then either Yolo County or Hawaii (or *maybe* California AG Harris who is a hardcore grabber) can appeal to The Nine Robes in DC. I think they'd hear an appeal from a government agency.
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May 5, 2014, 03:24 PM | #92 |
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Could someone in one of the more restrictive circuits file suit based on a violation of the 14th Amendment equal protection clause?
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May 5, 2014, 03:41 PM | #93 |
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Well sure but...that won't work in the circuits where holdings are against us, which is so far the 2nd/3rd/4th.
Look, what that means is the only remaining states where we can fight are Massachusetts in the 1st Circuit, the DC carry case (the one that multiple judges are refusing to rule on) in the DC Circuit and Peruta, if we get shot down en banc. My hope now is that the Peruta ruling stands and takes effect, which means the Baker and Richards cases also stand because they're based on the same logic, and somebody on the losing .gov side petitions the Supremes. We have, maybe, one last alternative...we drag the 11th Circuit into it. There are no may-issue states there BUT both GA and AL have laws banning the carry of guns at political rallies or protests (even legal ones), which violates the hell out of the 2nd Amendment and we could in theory get a pro-carry ruling that way. OR we do a suit against one of the federal no-guns-in-our-building bans? Won't work against a courthouse, but against a toilet in a national forest? Just thinking out loud here...
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May 5, 2014, 04:03 PM | #94 |
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To my point, I was wondering if bringing up the 14th on appeal (of another losing case) and waving another flag in the face of the Supreme Court might make them any more inclined to hear the case.
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May 5, 2014, 04:28 PM | #95 | ||
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May 5, 2014, 04:39 PM | #96 | |
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The Roberts court has done some waffling, and they appear to be more conscious of public approval than usual. It could be they don't want to make a decision that's going to be unpopular. I really, really hope I'm wrong on that, because the implications aren't pretty.
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May 5, 2014, 05:09 PM | #97 |
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SCOTUS' function is less of protecting our rights and now is more of resolving circuit splits, unfortunately.
To what Jim said about other possible cases-there are numerous possibilities out there. IL should be sued in both state and Federal courts for their weird CCW law which only allows residents of SC and HI to apply. SC should be sued in state court for it's discrimination of 20+ state residents for no non-res permits and no recognition of non-resident CCWs. Oregon has several towns with OC bans, yet only allows border state residents to get a CCW, and the state precedents on public carry are very good. Denver can be sued for no OC as a follow up to Peterson. I think a Palmer-like case should be filed in DC Superior court(the "state" version of DC courts as opposed to the DC Federal District), since Palmer may never be decided. The possible cases are out there, and the orgs need to consider more may be necessary to force the issue on SCOTUS. |
May 5, 2014, 05:55 PM | #98 | ||
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May 5, 2014, 06:16 PM | #99 | |
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May 5, 2014, 06:38 PM | #100 |
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If the court truly does not know which way the votes will fall, then perhaps it'll have to come from a jurisdiction with a total carry ban like DC or American Samoa, and N. Marianas, which oddly still has a handgun ban which no one has challenged.
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