- Nov 11, 2009
- 30,923
I doubt the pressure came from Frosh. One of our senior legislators would be my guess.
First Amendment WIN in federal court
- Thread starter esqappellate
- Start date
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I doubt the pressure came from Frosh. One of our senior legislators would be my guess.
Yeah Frosh was home in Somerset when this took place. I believe it was someone in the MGA too or perhaps a nearby resident who shall not be named was the culprit.
I vote for no. 1 however
I vote for no. 1 however
fabsroman
Ultimate Member
You will have to count on everybody telling the truth in discovery. It could just stop with "Oliver North".
Yup. But I think the real goal here is to peel back the onion to expose who really gave the order. So if Pope is feeling like he's been left twisting in the wind, he might be willing to give up his superiors publicly in exchange for settling to get rid of his personal liability.
Indeed it is. If I were Pope I would roll over and let someone else take the strap-on of Lady Justice in the keister.
Thanks! My mom is proud.
fabsroman
Ultimate Member
Where does he have personal liability? Not only that, but I am debating whether the recovery in this matter is limited to $400,000, just like any recovery against a LEO that negligently kills somebody, causes a car accident, etc.
Article - Courts and Judicial Proceedings
§5–522.
(a) Immunity of the State is not waived under § 12–104 of the State Government Article for:
(1) Punitive damages;
(2) Interest before judgment;
(3) A claim that arises from the combatant activities of the State Militia during a state of emergency;
(4) Any tortious act or omission of State personnel that:
(i) Is not within the scope of the public duties of the State personnel; or
(ii) Is made with malice or gross negligence;
(5) A claim by an individual arising from a single incident or occurrence that exceeds the amount specified in § 12–104 of the State Government Article; or
(6) A cause of action that law specifically prohibits.
(b) State personnel, as defined in § 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver.
(c) The scope of public duties of State personnel shall include, but not be limited to:
(1) Any authorized use of a State-owned vehicle by State personnel, including, but not limited to, commuting to and from the place of employment; and
(2) Services to third parties performed by State personnel, as defined by § 12-101 of the State Government Article, in the course of participation in an approved clinical training or academic program.
(d) In a contract action under Title 12, Subtitle 2 of the State Government Article, the State and its officers and units are not liable for punitive damages.
Edit to add: Only way around this limitation is to argue that Pope's actions were not within the scope of his public duties, were done with malice, or were grossly negligent. In my eyes, it is tough to meet any of those three exceptions such that personal liability will attach to Pope.
The suit was brought in Federal Court not State and is subject to the Federal Civil Rights Statute Sec. 1983.
That allows personal liability for violations.
IANAL
That allows personal liability for violations.
IANAL
.
That's what I was referring to, not state law.
I was just informing Fabs this is a Federal case not state
fabsroman
Ultimate Member
If you were Pope, you would be listening to your attorney regarding how he is immune from personal liability as long as it can be shown that he acted within the scope of his duties and he did not act with malice or gross negligence. If that ends up being the case, then he is not personally liable for any of his actions.
Not only that, but this is going to come down to what a reasonable LEO would have thought.
A reasonable LEO should of known his boundaries when it comes to making an arrest for picketing on a public sidewalk. It's not like Sgt Pope was a rooky cop and uneducated in the protocols, long established for the Capital Maul sidewalk protest events. While I could be all wrong in my opinion, just following orders is not a good reason, (just my opinion)...
Reasonable in this case is not hard to disprove as the PP has been there MANY times. In the past, other officers didn't respond the way Pope did in this case. And the situation has been, is the same.
As already stated, his actions have a high likelihood of being seen as unreasonable.
Not just PP. In the complaint they specifically mention Pope being present in some of the early "OK" events.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Fabs. None of that is the test for immunity under Section 1983. The question is what clearly established law provides, and that does not turn on the subjective intent of the officer or whether he thought he was acting the scope of his duties. There are tons of clearly established law that demonstrating on a public sidewalk, peacefully, without obstructing, is protected by the first amendment. Tons of case law that you can't retaliate against someone for exercising first amendment rights. These guys are toast.
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