You be the Judge! 10/26/15

https://www.cadc.uscourts.gov/internet/opinions.nsf/E8CAF3B08FAA9E8185257EE7004E2D02/$file/14-5194.pdf

 

Please read the opinion that I link above.  There is no question but that the decision in the case is a correct one based on the limits of Supreme Court investiture of a person’s right to enforce a remedy for a governmental violation of liberty after the violation has occurred.

However, as a Judge in this case you would have a choice to make, if you thought the 4th and 5th Amendments should provide such a remedy, lest the protections become stripped of meaning.  There are several possible choices here, by the way.  I probably would have recognized the Bivens right as extending to this man in this situation because the FBI intended to use his coerced confession in a criminal proceeding, reading between the lines.  But I would have stayed my Judgment pending Supreme Court review.

What would you have written?

 

8 Responses

  1. I’m Fristing this one. Just so someone has.

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    • CNBC/NYT reporter John Harwood, a MSM left-wing shill if ever there was one, will moderate the GOP debate. The RNC might possibly be staffed with the dumbest, most incompetent political organizers in the history of politics.

      http://thefederalist.com/2015/10/27/cnbcs-john-harwood-has-no-business-moderating-a-gop-presidential-debate/

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    • Mark, I am trying to make my way through the opinion. But I feel like I would need to do some studying of Bivens separately in order to offer a considered opinion.

      FYI my first inclination is to say that the responsible agents should be personally liable and capable of being sued.

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      • FYI my first inclination is to say that the responsible agents should be personally liable and capable of being sued.

        I appreciate that. I suppose a Judge could get there from here by finding the agents acted outside their authority. But the likelihood of the victim collecting substantial damages from individual agents is, of course, slim.

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        • Mark:

          But the likelihood of the victim collecting substantial damages from individual agents is, of course, slim.

          True, but that is the case in many instances of wrong doing or wreckless behavior. Perhaps agents should be required to hold some kind of liability insurance.

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        • Wrinkle to that is that it is against public policy to allow insurance for intentional misconduct – for obvious reasons, I think.

          For some agents, personal liability would act as a deterrent, however. So I would be for that sort of decision, which is theoretically within a Judge’s purview and should not need enabling legislation. Still, the agents would say they were acting under the color or authority of law and they would bring the Govt into the suit for indemnity. The Govt. would have to disavow their actions, or obscenely accept responsibility while denying liability. Hmmm.

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  2. Did the RNC INVITE Harwood?

    If so, we can speculate on the madness in their method. Harwood probably would not resist saving his toughest shots for Ben and Goldilox. That may play into RNC strategy.

    If they did not invite him, of course, the same result is likely.

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    • Mark:

      Did the RNC INVITE Harwood?

      I don’t know how Harwood got involved, but surely the RNC has some negotiating power over who moderates these debates. Afterall, they don’t have to put on a debate through CNBC. It is hard to imagine the DNC agreeing to a debate in which, say, Rick Santelli or Joe Kearnan was a moderator.

      Like

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