This is the job of the legislature (EDIT: and elected executive). Not the court. The court decides if it’s legal. Blurring those lines is how you ruin the rule of law.

Through delegated lawmaking. When agencies overstep those boundaries, the courts have been more than happy to strike them down.

And to be fair, my statement should have included the executive. It should not include the judiciary, who have a more limited--albeit equally powerful--role in our government.

We could argue about scope, but we can’t really argue about whether the power exists. And that’s to say nothing of SCOTUS, which gets to interpret complex notions like “freedom”, “liberty”, “search”, “privacy” and so forth as used in the constitution, laws passed by congress, etc.

These issues are complicated. If you think something is fairly obvious, you are missing colour. (My feelings are different for a legislator.)

My freedom to not get shot interferes with your freedom to be protected by police. Until recently, criminals were hanged by county legal functions. That line has shifted. Policing in America is too violent, but it is not apparent that it is illegally violent.

For example, Terry v. Ohio establishes a standard of "reasonable suspicion" which the court practically just made up.

Another is Gonzales v. Raich In which the court decided the federal government can sieze, destroy and regulate marijuana grown for personal medical use because the 4th amendment allows the federal government to regulate interstate trade. And one person's personal supply would prevent them week my it on the interstate market. That's like saying the federal government can stop your grandma knitting a cap for your baby because it affects the interstate baby clothes trade. Talk about activist judging. That reasoning is two sizes too small.

People like to believe there is an umpire at the end of the day that can "objectively" interpret law. It's why textualism and originalism have become so popular. The idea is comforting. But like most decisions everyone makes, the justices feel, decide and justify in that order.

Terry turned on the interpretation of the word "unreasonable."Prior to that, the "fruit of the poisonous tree" doctrine, which prevents illegally-collected evidence from being used in court, another interpretation, would have prevented a cop searching-and-seizing an M-16 on Broadway from arresting, charging and convicting its surreptitious holder.

I think the Court erred in this. But it was far from wanton judicial activism. (Which to be fair the Court has engaged in.)

> there is an umpire at the end of the day that can "objectively" interpret law

Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.

But it's equally absurd to interpret the fourth amendment as merely requiring a cop to say they 'thought they smelled weed' for the entire amendment to be nullified.

Worse, I’ve heard people ask if the police has a search warrant before allowing them to search their cars on a traffic stop be subjected to many hours of being stopped by the side of a highway followed by a K-9 unit which scratches the whole car based on where the handler taps on the car.

The officer doesn’t care because they get paid for the whole time they are there. What about the car driver and other occupants though? What if you are on your way to work and fired because you are late because the police stopped you? Why don’t I deserve to get paid for my wasted time?

I didn't say it was. I said that about Gonzalez v. Raich. Terry though is a perfect example of how legislating from the bench is basically unavoidable. The constitution doesn't outline what a search without a warrant should look like. The court could say, we don't care leave it to statute. But likely any state statute would be challenged on the grounds that it was permissive beyond what is "reasonable". So they'll just get the problem back in another form.

They could say, this needs an amendment but what is to be done in the meantime? So they are stuck. They either have to say, "no warrantless search is "reasonable". Or they have to start defining a standard under which a warrantless search is "reasonable". Either way, they are effectively writing law.

They have to take non-specific language and interpret it to a specific incident. It is exactly the kind of canard they faced in the case linked here. Bullets aren't a literal search or seizure but obviously the constitution doesn't intend to allow a cop to shoot you with impunity because that's not a "search or seizure". Shootings have to be governed by the "reasonable searches or seizures" doctrine cause there isn't anything else.

If this case is activism as the poster I replied to implied then so is Terry. The call just came down on the other side this time. It's not way out there to ask a cop to think, "there might be multiple reasons why this person is speeding away from me now and it is not 'reasonable' to assume they are armed and dangerous and need to be shot." And grouping the polices's right to use deadly force under the 4th amendment isn't either. It's my opinion that neither this case, nor Terry is particularly "activist".

> Of course the Courts aren't objective. Law isn't code. That doesn't mean we can strive for them to be, as much as they can be.

This is exactly my point. We can ask for Some people are just going to call every decision they don't like activist. But the implications from a case like Terry or this one are clear; judges have to engage in something a little more than literal readings of legal text.

Only because a search without a warrant is by definition not backed by any legal authority, and without legal authority the only way they get to do the search is with the owner's permission. A "search warrant" is nothing more or less than legal authorization to perform the search—whatever form that authorization might take. Any law authorizing a search would itself be a warrant (though perhaps an unconstitutional one), which implies that a law authorizing "warrantless searches" would be self-contradictory.

Except this is exactly what Terry v. Ohio is about. It defines "stop and frisk" type searches under "reasonable suspicion" as constitutional despite the fact that the officer does not get a warrant.

The Supreme Court has more power to go beyond the question before them than other courts do. But that's mostly because there's nobody to challenge them when they do. For the most part, they avoid ruling too broadly.

Here, the question seems to be "is shooting this person under these circumstances a form of seizure" not "is shooting this person under these circumstances Constituional/good/OK".

So I don't know how you square that with the idea that someone has a freedom to be protected by police, who in turn are free to elect not to do that.

I don't think this freedom to be protected by the police is a thing

We halfway between Western Europe and a corrupt former soviet republic.

But why did it take so long. Why, when the court was less activist could this not be read literally and universally as we so clearly think it reads today. If it's just about," interpreting the constitution" and if there was some better time when judges knew their place, why couldn't they see it?

You can say the same about aspects of the first amendment, the second, the fourth and many others. Practically everything we say is great about the American legal system and our civil liberties owes to a judge acting a bit like an activist primarily between the years of 1930 and 1970.

This is prima facie wrong. The legislature is co-equal with the executive and judiciary. “We the people” are the technical authors of the Constitution.

That question lacks validating context.

According to activity in Atlanta last year the answer is generally no even if the suspect remains armed and in prior moments was in a physical altercation with police. However, if the suspect remains an imminent threat to anyone, such that they continue to point their weapon at people as they are fleeing then I would say they remain an active imminent threat and thus can be shot by law enforcement. That is an extraordinarily narrow and unlikely scenario though.

Either way it is a rush judgment call in the field and all shootings between people demand investigation. People, even police, are not above the law and are not granted special exceptions of hostility, but they are obligated to put themselves at risk for the protection of all parties which warrant additional considerations in review.

There have been FIVE murder convictions of police officers since 2005: https://www.statista.com/statistics/1123386/convictions-poli...

Five minutes of research shows the Supreme Court has confirmed that police have no obligation to protect: https://www.barneslawllp.com/blog/police-not-required-protec...

In summary the court said: The court opinion, by Chief Justice William Rehnquist, held that the due process clause protects against state action only. Police action was never mentioned or effected by that case.

Here is due process (5th Amendment): https://en.wikipedia.org/wiki/Due_Process_Clause

Due process protects individuals from intrusion by the state. In that vein the case effectively says state agents without policing authority are not obligated to intervene as police would against private citizens.

It's also not true that police are obligated to do anything. They don't face any liability if they decide not to engage with a violent suspect. They might lose their job, but that's an ongoing choice they make, not an obligation.

I wanted to say that this is hyperbole, but it's just an obviously flagrant misuse of a word.

Rules of conduct that dictate a profession are obligations. https://en.wikipedia.org/wiki/Obligation

I guess I thought that's the context you were using the word in, here where we are discussing how the law applies to police.

In most other professions there exists licensing and such licensing establishes rules of conduct. Violation of such results not just in termination of a job but failure to practice, usually forever. In those professions obligations are essentially laws, except violating such may not, but can, result in incarceration. Instead they will just be poor and forever unemployable in their invested trade.

That's literally what qualified immunity provides; in addition to all the special laws they lobby for that undermine the rule of law e.g investigating themselves, reviewing footage of their crime prior to giving testimony etc.

Qualified immunity is a shield from civil suits not criminal liability.

For example if paramedics are performing life saving functions and the injured party still dies those paramedics shouldn’t be at risk of law suit attempts to save life. The consequence is paramedics would let people die without life saving actions in full knowledge that in most circumstances their actions would prevent death because there is great personal financial liability for performing their jobs in some rare circumstances.

"generally requires civil rights plaintiffs to show not just a clear legal rule, but a prior case with functionally identical facts."

https://www.americanbar.org/groups/public_education/publicat...

It's not a crime if there is no precedence; cannot establish precedence because there is no precedent.

Sounds like immunity to me; but please, feel free to point me to the high number of court cases of criminal cops held accountable in a court of law.

You should also send that to the american bar association; they are clearly wasting their time pursuing criminal justice reform for the complete lack of accountability.

The crime they're now committing is escaping jail/prison which is something they haven't had their day in court for yet. But fine, let's assume that in the terms & conditions for escaping jail/prison include a default presumption of guilt and you don't need a second hearing.

Is the punishment for escaping jail/prison death or injury? Nope!

You may hold an ideal of presumed innocence in society at large, but prison is the implementation of determined guilt. Failing to acknowledge that is a disservice to those in bondage.

Or it could just not be. We as a people get to ultimately decide if this is the case. My ideal prison system would just “you’re grounded” but for adults. You can go to your job, or go to school, but you’re monitored and have to report to prison right after. To me it’s a very natural escalation of house arrest, treats prisoners with more dignity, and doesn’t screw them for the rest of their lives.

Yes fine we have to deal with people who are an immediate threat to the people around them. But that’s the exceptional case in the US prison system and can go by different rules.

Locking people in cages is so stupid. Like even if you have no empathy towards prisoners as people it makes no sense to waste their lives when they could be contributing to society.

Source: https://www.merriam-webster.com/words-at-play/jail-vs-prison...

He said, without exception, the only time he can draw and use his firearm is if "he had immediate fear for his own life (or the life of another)" - he said they're trained to say those exact words when questioned about why they used lethal force. Shooting someone because they're running away, or swearing, or not cooperating is VERY strictly not allowed.

Whenever I hear of a person shot running away, or a person with their hands in the air I suspect there will be very big problems.

If he shot and killed two people, you should say he shot and killed two people. This weird circular speech around cops killing people ("officer-involved shooting") is one of the reasons it continues to be so common.

So long as they have a magic phrase for evading responsibility, we'll remain in the situation of having to deal with killer cops.

I would be extremely surprised if the police were restricted to using less force than your average joe.

That has since changed and it is now only legal to shoot a fleeing suspect if they pose an immediate safety threat. For example, if the suspect was armed and fleeing into a populated area.