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Discussion Starter · #1 · (Edited)
I know there are some lawyers on this site and there are definitely police officers. There has been much discussion and debate about whether or not the police should actually enforce the SAFE act. Many police officers (in the media, not necessarily on this site) claim it is not their job to decide the legality of laws, but merely to enforce them. Many others point out that the police officers took an oath to uphold the constitution. I was wondering if there is actually a definitive legal answer about what a police officer should do in this situation. It seems like 42 U.S. Code 1983 implies that police officers would need to consider the legality of a law before enforcing it.

In my non-lawyer opinion it looks like the police who will be charged with enforcing the SAFE act have been put between a rock and a hard place by the idiots in Albany who passed this law. If they refuse to enforce they could lose their jobs. If they enforce they face an angry populace and possibly civil lawsuits? If we disregard the possibility that the general population will fight this, where does that leave the police from a purely legal standpoint? Does code 1983 not apply in this situation? If it does, shouldn't the police union be speaking out against the SAFE act to protect it's members?
 

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I am a whole lot more concerned with what will happen WHEN THEY TRY TO ENFORCE this idiot B.S. Believe me, they will if told to (Remember what we saw with Katrina) and its pretty damm scary. I pray the law is struck BEFORE blood flow's,and I believe its possable.
 

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I know there are some lawyers on this site and there are definitely police officers. There has been much discussion and debate about whether or not the police should actually enforce the SAFE act. Many police officers (in the media, not necessarily on this site) claim it is not their job to decide the legality of laws, but merely to enforce them. Many others point out that the police officers took an oath to uphold the constitution. I was wondering if there is actually a definitive legal answer about what a police officer should do in this situation. It seems like 42 U.S. Code 1983 implies that police officers would need to consider the legality of a law before enforcing it.

In my non-lawyer opinion it looks like the police who will be charged with enforcing the SAFE act have been put between a rock and a hard place by the idiots in Albany who passed this law. If they refuse to enforce they could lose their jobs. If they enforce they face an angry populace and possibly civil lawsuits? If we disregard the possibility that the general population will fight this, where does that leave the police from a purely legal standpoint? Does code 1983 not apply in this situation? If it does, shouldn't the police union be speaking out against the SAFE act to protect it's members?
Its more than potentially losing their job. Official misconduct charges are a potential criminal charge against the officer depending on which provision of the act is not enforced.

Most officers will not be put in a position to enforce the new parts of the gun law that weren't covered by the old law anyway unless it is a secondary charge after being charged with something else.
 

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Discussion Starter · #5 ·
Its more than potentially losing their job. Official misconduct charges are a potential criminal charge against the officer depending on which provision of the act is not enforced.
Would a misconduct charge open the state up to a lawsuit from the police officer they charged? Can the state legally charge a police officer for avoiding a possible Code 1983 lawsuit?

I am well aware that lawsuits cost all kinds of money and most people would prefer to just avoid the fiasco if they could. Just trying to understand how this all works (or doesn't) from a purely legal standpoint.
 

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It seems like 42 U.S. Code 1983 implies that police officers would need to consider the legality of a law before enforcing it.
In NY, about the only gun laws that an officer may be able to provide a justification for non-enforcement are the 7 round limit in a mag and the "muzzle break" being an AW feature. Even those are iffy, given the fact that it seems to be unclear as to whether the recent 2nd circuit decision is binding or persuasive precedent for NY courts. I think that anything else and they are not going to find a court that does not find the current NY laws presumptively lawful.

A cop that does not do what he or she is told is going to get a non-official demotion to regular citizen status, and once that happens they can be stomped on just like the rest of us.

There may be a few LEO out there that are willing to become martyrs, but not many I think. I can not say that I blame them - if I had all their advantages I would not give them up either.
 

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Isn't not registering an "assault weapon" a misdemeanor? If so, I doubt anyone is going to be kicking down doors for that. In Ct, it is a different story completely.
 

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This is a nation of laws, and police are one mechanism of that system. The courts are another. Since a court has already found most of the act to be legal, there is really no question here: the act is presumptively legal (but for those portions found vague). The more extreme of a rights infringement you get, the more likely there is to be pushback, though. A national confiscation of all guns would be a bit different than "okay, you can't have semi-auto guns with evil features unless you register them." But it's a bad situation to be in, alright. The blame for it lies on the representatives and voters who put them in office.

If police want to substitute their constitutional beliefs for that of the courts they shouldn't (and probably won't) be police anymore because there are about 320 million perspectives on the constitution in this country... and every one of them thinks they are not only right, but obviously so. In a recent thread Tennessee v. Garner came up; I can tell you there are people (ahem) who think the majority's decision was crap. Does that mean they should go around shooting fleeing felons (because common law has LONG held that such force is justified and nothing in the constitution spells out something different?). I bet most people would say no.

Now, 'discretion' is another story. Police decide not to pursue certain crimes all the time; maybe because it's a waste of time/money, maybe because of a dozen other reasons. But it's not quite the same because it's not dependable for the person subject to that law.
 

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Just like in the Military, you will find some that take their Oath more serious than they do their job. Hopefully one group weighs heavier than the other. There are many times in the Military where Service members stand their ground and do the right thing. There were many stories that came out of Katrina of Soldiers refusing to obey orders to assist in the confiscation of personally owned firearms. Didn't hear to much on the LEO side refusing.

This has got to be a very difficult decision for anyone on the job. The misconduct charge has got to weigh very high in an officers mind. Officer discretion can only go so far. I for one am glad that I am not in those shoes for this one.
 

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They hanged people at Nuremberg for "just doing their job". Nuff said.
 

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A Federal Court has found most of the Law to be Constitutional.
The Second Circuit is likely to do so as well.

Unless your position is that the Police should be Judge, Jury and Executioner, you can not possibly expect them to say in public for the record that they will not enforce a law that has been found to be Constitutional.
 

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They hanged people at Nuremberg for "just doing their job". Nuff said.
Actually, they hung them for crimes against humanity, which included murder and genocide.
Neither of which are even remotely close to the issues raised here.
 

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Actually, they hung them for crimes against humanity, which included murder and genocide.
Neither of which are even remotely close to the issues raised here.
The point is that they were hung for doing a job that was entirely "legal" at the time.

The supreme court ruled that it was OK to round up all the japanese during WWII and stick them in camps. Does that make it right ?
You will argue that they were never charged, well there are plenty of things that our government has gotten away with, that doesn't mean the people involved didn't have an obligation to refuse.

You are probably one of those people who think the police had an obligation to return escaped slaves just because that's what the law said at the time.

At a certain point you have a moral duty to disobey an order, and no amount of paperwork or ceremony can change that.

Anyone who would blindly follow orders and commit whatever atrocity they were ordered to do shouldn't have a badge IMHO.
 

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to understand the smokescreen here let's read a section of the CPL which will make the Officers discretion clear

N.Y. CPL. LAW § 140.10 : NY Code - Section 140.10: Arrest without a warrant; by police officer; when and where authorized

1. Subject to the provisions of subdivision two, a police officer may
arrest a person for:
(a) Any offense when he has reasonable cause to believe that such
person has committed such offense in his presence; and
(b) A crime when he has reasonable cause to believe that such person
has committed such crime, whether in his presence or otherwise.
2. A police officer may arrest a person for a petty offense, pursuant
to subdivision one, only when:
(a) Such offense was committed or believed by him or her to have been
committed within the geographical area of such police officer's
employment or within one hundred yards of such geographical area; and
(b) Such arrest is made in the county in which such offense was
committed or believed to have been committed or in an adjoining county;
except that the police officer may follow such person in continuous
close pursuit, commencing either in the county in which the offense was
or is believed to have been committed or in an adjoining county, in and
through any county of the state, and may arrest him in any county in
which he apprehends him.
3. A police officer may arrest a person for a crime, pursuant to
subdivision one, whether or not such crime was committed within the
geographical area of such police officer's employment, and he may make
such arrest within the state, regardless of the situs of the commission
of the crime. In addition, he may, if necessary, pursue such person
outside the state and may arrest him in any state the laws of which
contain provisions equivalent to those of section 140.55.
.....................................................................

now, let's look at different section of SS 140


* 4. Notwithstanding any other provisions of this section, a police
officer shall arrest a person, and shall not attempt to reconcile the
parties or mediate, where such officer has reasonable cause to believe
that:
(a) a felony, other than subdivision three, four, nine or ten of
section 155.30 of the penal law, has been committed by such person
against a member of the same family or household, as member of the same
family or household is defined in subdivision one of section 530.11 of
this chapter; or
(b) a duly served order of protection or special order of conditions
issued pursuant to subparagraph (i) or (ii) of paragraph (o) of
subdivision one of section 330.20 of this chapter is in effect, or an
order of which the respondent or defendant has actual knowledge because
he or she was present in court when such order was issued, where the
order appears to have been issued by a court of competent jurisdiction
of this or another state,
 

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Discussion Starter · #15 ·
A Federal Court has found most of the Law to be Constitutional.
The Second Circuit is likely to do so as well.

Unless your position is that the Police should be Judge, Jury and Executioner, you can not possibly expect them to say in public for the record that they will not enforce a law that has been found to be Constitutional.
I get this, but I'm drawing both situations out to their potential supreme court conclusions. Which may be a mistake, but just trying to play it out in my mind.

Situation A: A police officer arrests and charges an individual with a felony for having a high capacity magazine. The arrested party files a Code 1983 suit against the police officer. The case works it's way through the courts and eventually winds up at the SCOTUS where the police officer is found guilty of violating the person's civil rights. Is that plausible?

Situation B: A police officer is with misconduct for not enforcing the SAFE act. The police officer sues/appeals the state saying the charges are essentially unconstitutional (not sure exactly how to word that). The case winds it's way through the courts to the SCOTUS and the police officer is found not guilty of misconduct and the state has to compensate. Is that plausible?

Obviously it is possible that the SCOTUS could refuse the case or find the SAFE act is constitutional. But in the mean time, there seem to be substantial risks to all parties involved in dealing with this stupid law.

Perhaps I'm just looking for a definitive answer where none exists. This "we'll have to ruin a few lives in order to see if it's constitutional or not" situation is awful.
 

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In NY, about the only gun laws that an officer may be able to provide a justification for non-enforcement are the 7 round limit in a mag and the "muzzle break" being an AW feature. Even those are iffy, given the fact that it seems to be unclear as to whether the recent 2nd circuit decision is binding or persuasive precedent for NY courts.
This is correct.
 

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EVERYONE PLEASE LISTEN. The police and government are NOT going to be liable for enforcing a law on the books. I keep saying this but keep seeing these threads. No offense WARFAB I understand this is all hard to understand.

However 42 USC 1983 is a federal civil rights law. If the government violates your civil rights, by mistreating you because or race, color, sexual orientation, if you are physically abused or your rights are completely disregarded then there is a Section 1983 lawsuit. There is not going to be any liability for enforcing the Safe Act.
 

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EVERYONE PLEASE LISTEN. The police and government are NOT going to be liable for enforcing a law on the books. I keep saying this but keep seeing these threads. No offense WARFAB I understand this is all hard to understand.

However 42 USC 1983 is a federal civil rights law. If the government violates your civil rights, by mistreating you because or race, color, sexual orientation, if you are physically abused or your rights are completely disregarded then there is a Section 1983 lawsuit. There is not going to be any liability for enforcing the Safe Act.
The problem is that this is simply not what some folks want to hear.

The law has in fact been found constitutional by a Federal Court. At this time, no matter how strong our personal beliefs may be, the law is no longer "presumed" constitutional, it IS constitutional for the purpose of Law Enforcement.

Sorry. But that is the situation we find ourselves in right now. And Section 1983, as I understand it, requires proof of discriminatory treatment against a protected group, or at the bare minimum DIFFERENT treatment. If two guys in a room each have a 30 round mag and one is arrested and the other is not, you might have a case. If the other person is exempt due to, for example being a LEO, you do NOT have a case because the SCOTUS has ruled in the past that some different treatment is legal if it is for a "legitimate Government purpose".

For example, you can not have a "class of one" discrimination suit under 1983 against the State, because the State has a "legitimate government purpose" in treating some employees differently than others. Trust me, I can cite the case law on this one.
 

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Discussion Starter · #19 ·
The problem is that this is simply not what some folks want to hear.
True, but your responses do clear things up for me. I was under the impression that USC 1983 was applicable because the SCOTUS deemed the second amendment a civil right. Understanding that 1983 is not applicable clears up my confusion. Appreciate the help and explanation.
 

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Glad to help WARFAB and everyone feels the same way. Even personally I do but I understand why as a policy this is the only thing the courts could do, otherwise government agents would be paralyzed from acting out of fear of lawsuits.
 
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