Appeals Court Pretty Sure DOJ Use-Of-Force Guidelines Don't Violate Police Officers' 2nd And 4th Amendment Rights

from the leaping-at-the-chance-to-look-stupid-at-two-court-levels dept

Wed, May 17th 2017 3:23pm — Tim Cushing

A few years ago, some Seattle police officers came up with a novel plan to battle DOJ-imposed limits on their use-of-force. Since their union wisely decided to steer clear of this ridiculous legal battle, the officers chose to crowdfund their way into the federal court system.

Armed with a little over $3,000 and some particularly dubious arguments, the protesting cops filed a lawsuit claiming their Second and Fourth Amendment rights were being violated by the DOJ's use-of-force restrictions. It did not go well.

The officers' arguments were unsupported by the Constitution or case law, Chief U.S. District Judge Marsha Pechman said in an opinion issued Monday.

[...]

Plaintiffs can point to no case establishing that the Second Amendment codified a free-standing right to self-defense, as opposed to case law interpreting the textual Second Amendment rights to “keep and bear arms” in light of their purposes…

[...]

Nor did she agree with the officers' insistence that the policy violated a "right of self-defense as embedded in the Fourth Amendment," which protects against unreasonable search and seizures. Pechman said the argument grossly misconstrued Fourth Amendment law.

The lawsuit was dismissed with prejudice by the court. One would think $3,000 only buys a single trip through the federal court system, but apparently appellate-level lawyering is cheaper. The officers immediately appealed the dismissal, and are now finding the Appeals Court isn't any more impressed with the officers' claimed rights violations.

The Ninth Circuit seemed skeptical of Seattle police officers’ claims that a new use-of-force policy mandated by the Department of Justice violates their Second Amendment rights.

U.S. Circuit Judge N. Randy Smith told the officers’ attorney he didn’t “have much of an argument” at a three-judge panel appellate hearing on Monday.

The officers continue to claim de-escalation policies violate their Second Amendment rights by somehow robbing them of the ability to defend themselves. Not quite "Obama's coming for my guns," but close. How armed officers are being stripped of the right to bear arms -- including using them in defense (but perhaps less frequently) -- is something their lawyer hasn't been able to explain to any court's satisfaction.

The Fourth Amendment argument is even worse. Even in the plaintiffs' own words, it's spectacularly bad: a "metaphorical seizure" of their "right" to use whatever force they feel is necessary.

As the opposing counsel points out in a stunning display of logic, the place to protest new police policies isn't this courthouse. It's the one that approved the DOJ consent decree.

If the officers had real concerns about the use-of-force policy, they should have brought them before the federal judge overseeing the police reforms rather than asking an appellate panel to “create a new fundamental constitutional right,” [city attorney Gregory] Narver said.

The 126 Seattle law enforcement officers involved in this lawsuit have achieved the nigh impossible: making a police union look like the saner party in the wake of a DOJ investigation.

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Filed Under: 2nd amendment, 4th amendment, doj, police, use of force

16 Comments

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tom (profile), 17 May 2017 @ 3:56pm

The Right to Self Defense is IMO, granted by the Creator, see the Declaration of Independence, and is one of those unlisted rights the 9th Amendment refers to. I think the court got that part wrong.

As a Law Enforcement Officer, a position voluntarily held by all Officers in the US, you agree to abide by the Policies and Procedures set down by the hiring jurisdiction, and further modified by applicable State and Federal standards. Those P&P may limit the Officer's use of force and other actions as the hiring jurisdiction sees fit. Like any job, if you don't like the rules, find another occupation.
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Anonymous Coward, 17 May 2017 @ 4:12pm

Why do leos think their rights are being violated by departmental policies and procedures when all indications are they do whatever they please.
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Anonymous Coward, 17 May 2017 @ 4:27pm

Re:
They don't say there's no right to self-defense. They say the second amendment doesn't create a free standing right to self defense. Although cutoff on this article, the rest of the line says that facilitation of self-defense is one of the purposes of the second amendment. And if you read the whole opinion they quote Heller which says that the inherent right to self-defense is central to the second amendment.
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SpammersAreScum (profile), 17 May 2017 @ 4:31pm

Where was the NRA?
The fact that the NRA didn't come charging in to support them when a "2nd Amendment" defense was mentioned should have been a clue that they were reeeeeally stretching on that one.
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Bergman (profile), 17 May 2017 @ 4:37pm

Re: Where was the NRA?
The NRA generally ignores handgun cases anyway. They're called the National RIFLE Association for a reason. Most police uses of force involve handguns, not rifles.
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Anonymous Coward, 17 May 2017 @ 4:40pm

Re: Re:
I am more interested in why no one quotes the founding fathers.

Must be a reason for that...

The 2nd is not creating anything, it is stating that the right to self defense is an absolute and that government is not allowed to "infringe" upon that right.

Rights are conferred upon people by their creator, not by the words of the Constitution, the Constitution just serves as a document of law stating that government is not to attempt to interfere in those rights.

Since the government has decided to take such illegal steps, then any citizen is within their constitutional rights to defend themselves, even if the ones they defend themselves from are claiming to be law enforcement.

To bad people like you are busy running around helping the government to destroy the constitution.
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Anonymous Coward, 17 May 2017 @ 5:01pm

Re: Re: Re:
But it doesn't. I mean, you can read the 2nd amendment and the words self-defense are not there. It doesn't mean that right doesn't exist, nor does it mean that the second amendment isn't, in part, derived by that right, but it's very specifically talking about bearing arms.

And for someone who cares so much about the constitution you seem to have very little respect for it.
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Anonymous Coward, 17 May 2017 @ 5:46pm

But, but, your honor, how are we supposed to beat people up and play with our toys and shoot people if you won't let us beat people up and play with our toys and shoot people whenever we want.
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Anonymous Coward, 17 May 2017 @ 6:09pm

Re: Re: Re:
So no one has any rights because god doesn't exist. Got it.
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That Anonymous Coward (profile), 17 May 2017 @ 8:16pm

So I guess there is going to be a hiring blitz in this jurisdiction.

Officers are on the record stating they don't want to deescalate situations & would rather use force in all cases. They are unfit to police anything if their thinking process is shoot early and often to speed things up.
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Anonymous Coward, 17 May 2017 @ 8:25pm

Re: Re: Re: Re:
Did I mention God at all?
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Anonymous Coward, 18 May 2017 @ 5:33am

$3000 / 126
126 officers? You mean they couldn't even come up with $25 each to pursue this case?
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Wolfie0827 (profile), 18 May 2017 @ 6:48am

Re: $3000 / 126
NO, they were to busy buying guns with that $25. Gotta have something to drop and then claim the "criminal" had it!
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Anonymous Coward, 18 May 2017 @ 7:28am

These police should be fired. They sound like a scary bunch that don't give a crap about people's rights.
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Anonymous Coward, 18 May 2017 @ 12:53pm

An easy mistake
So, this was just a simple misunderstanding. These cops and their lawyer were talking about the secret Cop's Constitution, in which the Second Amendment embodies a policeman's right to gun people down in cold blood. So in that light, requiring de-escalation certainly does infringe on their Second Amendment rights.
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Dawkins, 18 May 2017 @ 3:33pm

Response to: tom on May 17th, 2017 @ 3:56pm
The Creator? Do you mean my Mom?
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