Police Shoot Autistic Man's Caretaker as He Lies in Street (employees, amendment)
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No...the statute made it so. Otherwise the 5th and the 14th applies to everyone. Not just civil servants.
It does apply to everyone, that is exactly what the decision says.
The issue here is that only public employees work for the government. So while _all_ employees have a property right in continued employment regardless of employer, only public employees require due process rights when that property right is denied.
It does apply to everyone, that is exactly what the decision says.
The issue here is that only public employees work for the government. So while _all_ employees have a property right in continued employment regardless of employer, only public employees require due process rights when that property right is denied.
If it was a Constitutional right the state would not have to enact a statute.
So 30,000 residents, I assume many of whom are registered voters, taxpayers, all adults, have petitioned that the officer (and his supervisor, who is already under suspension for his part in lying about the whole event) be let go
Of course, the Police Union, will not allow that, constitution or not.
This is the problem with Unions. The Police Union wields too much power to protect negligent employees.
(I am not being anti-union here. I don;t want a repeat of Miners conditions in the 1910s and events like the ones at Ludlow Colorado.)
But I do not want this to become the norm: shoot first, ask questions later and the union will always protect you.....
I think the better question here has been how accountability should work in this situation.
The supervisor committed a crime serious enough for termination, making it clear how due process can flow in that situation.
For the officer who actually fired the shot, it is far more difficult to prove beyond a reasonable doubt that he committed a crime. It is much easier to demonstrate that he violated policy, but a single policy violation is normally not enough to fire him. The easy way to think of this, if you are fired (not laid off, but fired) in a situation where you would be allowed to collect unemployment, in a public sector situation you generally would be reinstated to your job by the courts.
If you go the route of pursuing criminal charges against the officer, and that fails, you are pretty much done. He keeps his job and cannot even be demoted much less fired. If he was suspended without pay, he wins all of his back pay plus penalties.
If you go for workplace sanction, the burden of proof is less but he can pursue court appeals to overturn those sanctions.
Civil sanction is probably the best route, but he has a lot of immunities as a public employee (as long as he was performing his duties in good faith and without malice and the shooting was an error in judgement). Removing these immunities has been proposed as a way to open up civil sanction to create accountability, but it is an area to tread carefully; there are well established reasons those immunities exist in the first place.
(Might have better luck changing what is considered "good faith" and "without malice".)
If it was a Constitutional right the state would not have to enact a statute.
That the state did not have a statute preserving Loudermill's job. The statute was enacted to create due process to allow the state to take away his job because the original procedure was unconstitutional.
I think the better question here has been how accountability should work in this situation.
The supervisor committed a crime serious enough for termination, making it clear how due process can flow in that situation.
For the officer who actually fired the shot, it is far more difficult to prove beyond a reasonable doubt that he committed a crime. It is much easier to demonstrate that he violated policy, but a single policy violation is normally not enough to fire him. The easy way to think of this, if you are fired (not laid off, but fired) in a situation where you would be allowed to collect unemployment, in a public sector situation you generally would be reinstated to your job by the courts.
If you go the route of pursuing criminal charges against the officer, and that fails, you are pretty much done. He keeps his job and cannot even be demoted much less fired. If he was suspended without pay, he wins all of his back pay plus penalties.
If you go for workplace sanction, the burden of proof is less but he can pursue court appeals to overturn those sanctions.
Civil sanction is probably the best route, but he has a lot of immunities as a public employee (as long as he was performing his duties in good faith and without malice and the shooting was an error in judgement). Removing these immunities has been proposed as a way to open up civil sanction to create accountability, but it is an area to tread carefully; there are well established reasons those immunities exist in the first place.
(Might have better luck changing what is considered "good faith" and "without malice".)
A big problem here is that the government is twisting as hard as it can to find some way to call this a justifiable shooting. However, the least damaging explanation is just "negligent discharge"--the officer screwed up. There is no way to justify the shooting that doesn't look a heck of a lot worse than "the officer was careless."
That the state did not have a statute preserving Loudermill's job. The statute was enacted to create due process to allow the state to take away his job because the original procedure was unconstitutional.
If that had been the case they could fire him. No stature needs passed in a Constitutional situation.
Nowhere in the Constitution does it grant public employees special privileges over anyone else.
A big problem here is that the government is twisting as hard as it can to find some way to call this a justifiable shooting. However, the least damaging explanation is just "negligent discharge"--the officer screwed up. There is no way to justify the shooting that doesn't look a heck of a lot worse than "the officer was careless."
Forgiveness is always a given by a tribe to any stupid member.
Stupidity beats negligence in any court of law in this country.
Ignorance loses, stupidity wins!
It gets worse - stupidity combined with malice comprise an immunity for tribal members.
Loyality is the royalty of tribal duty, and a necessary cohesion.
Muslim members don't condemn Muslim terrorists to non-Muslims. (It is the Law of Sharia)
Last edited by Hyperthetic; 07-27-2016 at 12:22 PM..
If that had been the case they could fire him. No stature needs passed in a Constitutional situation.
Nowhere in the Constitution does it grant public employees special privileges over anyone else.
14th amendment, clause 1:
"nor shall any State deprive any person of life, liberty, or property, without due process of law;"
Because the State is the employer of the public employee, public employees do have special protections over anyone else.
This same clause applies to everyone else, but everyone else has an employer that is not restricted by the 14th amendment.
It is the State, as an employer, that is "special" in this situation, not the employees. All employees have the same property rights in continued employment. The State, under the 14th amendment, has the special restriction of not denying property without due process, a restriction that does not fall on private sector employers.
(Also, in case you hit on the part where "certain" public employees have a property right in continued employment, this relates to a piece I mentioned before. Probationary employees, political employees, and certain other special classes do not have a property right in continued employment. The vast majority of public employees are non-probationary merit employees, like nearly all private sector employees, and so fit into the class of employees with a property right in continued employment.)
Last edited by marigolds6; 07-27-2016 at 03:11 PM..
A big problem here is that the government is twisting as hard as it can to find some way to call this a justifiable shooting. However, the least damaging explanation is just "negligent discharge"--the officer screwed up. There is no way to justify the shooting that doesn't look a heck of a lot worse than "the officer was careless."
Yes, which is really cover for the rest of the government, not the officer.
Just by saying the trigger pull was a mistake in judgement (and not a mistake in care), the officer would be protected. I think this one gets especially complicated because he shot the wrong person. If he had sufficient reason to shoot the autistic man (if he was a real threat), but hit the caretaker instead by an errant shot, it is a much more simple case and he would be cleared for shooting the caretaker.
But we have a defensible mistake in judgement, namely hitting the caretaker instead of the autistic man, that was made because of a lack of care that led to the mistake, i.e. shooting in the first place in a situation where he did not need to fire.
If the officer is staying with, "I pulled the trigger on accident," I think he ends up not only fired, but facing charges. That is a lack of sufficient care, and that could lead to felony negligent discharge.
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