Comment by calgarymicro | Hacker News Reader

Comment by calgarymicro | Hacker News Reader

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> That ambiguity doesn't exist here.

The bar is much lower than whether or not the court thinks the speech is protected or not. The court could unambiguously believe the rule is unconstitutional and the speech was protected, but if they believe there's any room at all for 'reasonable disagreement' on the matter among other judges, then the officers and officials get immunized.

> The municipal liability is just much clearer.

This would be nice, assuming courts agree, but until officers and officials start getting held personally liable for these events, they will never stop happening. If the PD and officials are shielded from liability but the municipality isn't, then all that happens is that taxpayers will continue to pick up the tab for police misconduct.

> In this case, the town's law is itself being challenged. Again, much clearer.

Well, he's seeking damages from the mayor, officers, and municipality first and foremost; the council rule has actually already been removed. I hope you're right that he might get something from the municipality, but I doubt he'll get anything from the mayor or PD.

It's a bit worse than that. Officers don't pay when they're held personally liable, the city covers that too.

So is there some sort of backup insurance that covers the officer in the rare occasions where qualified immunity is stripped?

> if they believe there's any room at all for 'reasonable disagreement' on the matter among other judges

Sure. And given the officers consulted the "City’s Law Director and the judges who issued the warrants," there was evidence of that disagreement. There were no similar consultations in Petersen's case.

> until officers and officials start getting held personally liable for these events, they will never stop happening

I don't believe there is evidence for this. Municipalities vigorously defend themselves for a reason. Yes, in large systems, the cost gets baked in--but Newton isn't a big nor rich town.

> he might get something from the municipality, but I doubt he'll get anything from the mayor or PD

I agree. And I think that could even be fair, especially if the mayor and cop thought they were acting according to the law. The law they relied on didn't come out of nowhere, after all.

In the end, if the only thing that comes out of this is the non-disparagement rule being struck down, I think that's a win. (I generally believe we need qualified immunity reform. But that needs to happen through statute.)

>given the officers consulted the "City’s Law Director and the judges who issued the warrants," there was evidence of that disagreement.

Based on the CiC. v. Husted opinion that the judges cited in Novak, the officers don't need to consult anybody or be aware of a disagreement; there just needs to be the possibility of one, the argument being that we shouldn't hold public officals to a higher standard than judges, so if judges could disagree about the constitutionality of sonething then the officials should be able to as well. This seems like a comically low bar to me that could easily be met here.

> Municipalities vigorously defend themselves for a reason.

Of course they'll defend themselves vigorously in court, but will it change the behavior of the officers and officials in question if they're shielded from liability? I doubt it, though I hope I'm wrong.

> And I think that could even be fair, especially if the mayor and cop thought they were acting according to the law. The law they relied on didn't come out of nowhere, after all.

Well, I suppose if you think that, then you agree about the liklihood of qualified immunity getting applied here. But I can't imagine that the mayor or police believed this rule was constitutional, and I think that shows in their rapid and discrete removal of the rule following Petersen's acquittal.

> the city council delegated authority to the mayor. For instance, if the mayor thought a comment or question was “derogatory,” the mayor could enforce the city’s policy however he saw fit . . . Conversely, if someone else thought a comment or question was “derogatory,” but not the mayor, nothing would happen.

> For instance, if the mayor thought a comment or question was “derogatory,” the mayor could enforce the city’s policy however he saw fit

The mayor doesn't get to define statutory law, though.

Leaving aside "was this comment a problem or not", stopping someone from speaking at a council meeting is one thing, "and then having them arrested for disorderly conduct" is quite another.

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