A Loophole for the Lawless: “Qualified Immunity” Must Go

On August 11, 2014, officers from the Caldwell, Idaho Police Department asked for Shaniz West’s permission to enter and search her home. They were looking for her ex-boyfriend. West authorized the search and handed over her keys.

Instead of entering and searching the home, though, the police brought in a SWAT team, surrounding the building.  “[P]olice repeatedly exceeded the authority Ms. West had given them,” a lawsuit she filed complains, “breaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas, destroying most of Ms. West and her children’s personal belongings.”

The “standoff” lasted ten hours. But it wasn’t really a standoff. The only mammal in the home larger than a mouse was West’s dog.

Then the cops went on their merry way, leaving West homeless for two months, with three weeks in a hotel as her only compensation.

She wants more, including the costs of repairing and replacing her ruined personal property, damages for pain, suffering and emotional distress, and punitive damages for the assault on a home she gladly authorized a search of, not an attack on. She deserves all of that.

She isn’t getting it — yet, at least — due to a loophole baked into a vile judicial doctrine called “qualified immunity.”

Qualified immunity protects government employees from liability for things they willfully decide to do while on duty, unless those actions violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

The loophole is the phrase “clearly established.”

The Ninth Circuit US Court of Appeals ruled that “no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.”

How’s that for circular reasoning? “You can only sue over X if someone else has previously successfully sued for X. ” And no one CAN have successfully sued for X, at least since the loophole was introduced in 1982, because they would have been turned away on the same grounds!

The Institute for Justice wants the US Supreme Court to take up West’s case.

It should do so, and when it rules it should go beyond nixing the “clearly established” loophole and do away with the doctrine of “qualified immunity” entirely.

42 US Code § 1983 provides that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” may be sued for damages.

Not just if someone has successfully sued on the same grounds before.

And not just if a “reasonable person” would have known better.

Government employees are supposed to know their jobs, including the limits on their authority. If they don’t, they shouldn’t be given guns and badges, let alone protection from liability when they exceed those limits.

“Qualified immunity” is the opposite of “equality under the law.”

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Two-and-a-Half Cheers for Elizabeth Warren’s Student Debt Plan

On January 14, Elizabeth Warren released a “Plan to Cancel Student Debt on Day One of My Presidency.”  Warren would use the US Department of Education’s “broad legal authority” to cancel up to $50,000 of debt on behalf of up to 42 million borrowers.

Warren’s plan makes a lot of sense politically.  She’s struggling for traction in the Democratic Party’s presidential nomination race. Big promises to  millions of borrowers and their families could make a big difference in the Iowa caucuses and New Hampshire primary.

As for the larger problem of college costs, Warren’s overall approach is a mix of some bad things ($150 billion in taxpayer money for Pell Grants and “minority serving institutions,” plus the costs of “universal tuition free public college”) and one and a half good things above and beyond her debt forgiveness plan.

The one good thing: She proposes to eliminate the “undue hardship” standard for discharging student debt in bankruptcy.

The half a good thing: She wants to ban federal funding for for-profit colleges.

That second thing would be a full good thing, instead of just half a good thing, if Warren removed the word “for-profit.”

There’s a strong historical correlation between easy availability of student loans and soaring costs of a college or university education.  It’s basic economics. By artificially lowering loan risk to direct money at a good or service, government increases debt and drives up the price of that good or service.

Under the present system, naive 18-year-olds are swindled into borrowing  more and more insane amounts of money to spend on less and less valuable college degrees. Then when they find themselves barely scraping by under the burden of repaying those loans, they can’t resort to bankruptcy.

Think about that for a minute.

I’m 53. If I go out tomorrow and take out a sub-prime mortgage on a home and a loan for a $40,000 car, then max out a bunch of credit cards, I can substantially get out from under that debt in bankruptcy court.

The 18-year-old who trusted others when they said “you need to go to college and here’s how” doesn’t have the same recourse as spendthrift Tom, who was old enough to know better and then some, but partied hearty anyway. That’s not right.

No, everyone does not need to “go to college.” That’s becoming more true than ever as inexpensive distance learning options and non-school certifications in various fields prepare Americans for many jobs better than seeking a degree does. We need to stop lying to America’s kids about both the costs and the benefits of a college education.

I’m all for Warren’s idea of “forgiving” a bunch of the existing debt. But any kind of lasting solution calls for less, not more, government involvement in general.

The Libertarian Party’s platform offers a better direction: “We support ending federal student loan guarantees and special treatment of student loan debt in bankruptcy proceedings. … Education is best provided by the free market, achieving greater quality, accountability, and efficiency with more diversity of choice.”

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It’s Not Just Trump Supporters: Politics is a Pile of Shared Psychoses

Dr. Bandy Lee, a psychiatrist affiliated with Yale University, posits a “‘shared psychosis’ among just about all of Donald Trump’s followers.”

Her claim came in the context of a discussion of Alan Dershowitz’s use of the word “perfect” to describe his sex life, mirroring Trump’s use of that word regarding a well-known phone call with Ukrainian president Volodymyr Zelensky.

Dershowitz has complained to Yale about the claim. He considers it an ethical violation of psychiatrists’ duty not to diagnose conditions absent personal examinations.

This particular version of the claim has a pretty thin basis, but it’s not incorrect. The big problem with it is that it’s too narrow. Donald Trump isn’t some lone Typhoid Mary of “shared psychosis,” nor are his supporters its only victims. Politics as we know it is made up almost entirely of shared psychoses.

The National Institute of Mental Health defines “psychosis” as “conditions that affect the mind, where there has been some loss of contact with reality. … Symptoms of psychosis include delusions (false beliefs) and hallucinations (seeing or hearing things that others do not see or hear). Other symptoms include incoherent or nonsense speech, and behavior that is inappropriate for the situation.”

If that doesn’t sound like the daily grind of American politics to you, you haven’t been paying attention to Trump’s Twitter timeline, the Democratic Party’s presidential primary debates, or Congress’s perpetual bickering.

The primary delusion of politics is the notion that someone out there is more qualified to run your life, or at least your neighbor’s life, than you or your neighbor.  In the advanced stages of the psychosis, the victim becomes convinced that he or she IS that someone and decides to seek political office.

By any measure, the psychosis is pandemic. In the US, more than  45%  — at a bare minimum, the entire adult population minus the half who don’t vote and the tiny percentage who vote Libertarian — clearly suffer from it.

To make a bad situation worse, the American political system is set up to ensure that the most delusional patients get put in charge of running the asylum.

While I’m a partisan Libertarian, I have my doubts that we can vote our way out of this epidemic by electing my fellow partisans to office and having them re-jigger the system to stop spreading the contagion and exacerbating its symptoms.

Perhaps we should consider adding clozapine to the water supply.

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Trump versus Iran: Power Doesn’t Just Corrupt, it Deludes

On January 8, US president Donald Trump addressed the American public concerning a casualty-free Iranian missile attack on US bases in Iraq, where just last week Iranian general Qasem Soleimani was killed in a US drone strike.

If the speech was remarkable in any way, it was for the comparative restraint Trump displayed: Rather than pledging another round of tit-for-tat, he announced new sanctions on Iran, vowed that “as long as I’m president of the United States, Iran will never be allowed to have a nuclear weapon,” called on NATO to “become much more involved in the Middle East process,” and rambled aimlessly about the “Iran nuclear deal” that his administration abrogated in 2018.

What was unremarkable — and unfortunate — in the speech was the obvious assumption underlying it: That the United States enjoys, and SHOULD enjoy, absolute power in international relations.

Trump is hardly unique in publicly stating, or in operating on, that assumption. The claim of such absolute power has been the tacit US doctrine of foreign relations since at least as far back as the end of World War Two.

America emerged from that war as the world’s sole nuclear power and, unlike other combatant countries, with its wealth virtually unscathed and its industrial capacity increased rather than demolished. Its rulers saw themselves as able, and entitled, to dictate terms to almost everyone, on almost everything.

“Power tends to corrupt,” wrote Lord Acton, “and absolute power corrupts absolutely.”

Acton was referring to individuals (“great men are almost always bad men”), but his observation is just as true of institutions. And above and beyond corruption, absolute power creates delusion.

The post-war “consensus” on American power around the world began to fray almost immediately.

The Soviet Union acquired “the bomb” and settled in for half a century of dominating eastern Europe.

The US found itself fought to a draw in Korea and defeated in Vietnam when it tried to throw its newfound weight around.

Even after the collapse of the Soviet bloc, the US learned that Michael Ledeen’s re-formulation of the doctrine — “every ten years or so, the United States needs to pick up some small crappy little country and throw it against the wall, just to show the world we mean business” — tends toward big price tags and negative returns.

Yet the delusion persists. It substitutes hubris for humility, sacrificing the blood and treasure of Americans and foreigners alike on the altar of a false god and in pursuit of an imaginary paradise.

The foreign policy recommended by Thomas Jefferson in his first inaugural address —  “peace, commerce, and honest friendship with all nations, entangling alliances with none” — was, and remains, the common-sense alternative to the nonsensical assumption of absolute American power.

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The Soleimani Assassination: Worse Than a Crime, a Mistake

In March of 1804, French dragoons secretly crossed the Rhine into the German Margraviate of Baden. Acting on orders from Napoleon himself, they kidnapped Louis Antoine de Bourbon, Duke of Enghien. After a hastily convened court-martial on charges of bearing arms against France, the duke was shot.

“C’est pire qu’un crime, c’est une faute,” a French official (supposedly, but probably not, Talleyrand) said of the duke’s execution: “It is worse than a crime, it is a mistake.”

That terse evaluation came immediately to mind when news broke of a January 3 US drone strike at Baghdad International Airport.  Iranian general Qasem Soleimani, commander of the Islamic Revolutionary Guard Corps’ “Quds Force,” and nine others, died in the attack. US president Donald Trump claimed responsibility for ordering the strike and has subsequently defended that decision.

The duke’s execution outraged Europe’s aristocrats, and in particular brought Russia’s Alexander I to the conclusion that Napoleon’s power must be checked. The international reverberations created by Soleimani’s assassination are already shaping up in similar fashion.

Yes, Iran’s government is outraged and vows revenge, but that’s not surprising. It would be hard for US-Iran relations to get much worse short of all-out war.

Five of those killed in the strike were Iraqi military personnel from the country’s Popular Mobilization Forces, including their deputy commander, Abu Mahdi al-Muhandis.

Iraq’s outgoing prime minister denounced the strike as a violation of Iraqi sovereignty and  of the US/Iraq Status of Forces Agreement. The speaker of the country’s parliament vowed to “put an end to US presence” in Iraq. Powerful Shiite religious and political figure Muqtada al-Sadr, whose militia forces bedeviled the US occupation after the 2003 invasion, is re-mobilizing those forces to “defend Iraq.”

NATO, the Secretary General of the United Nations, and several leaders of regimes putatively allied with the United States have likewise responded negatively to Soleimani’s assassination.

Trump’s order wasn’t even remotely legal, according to Hoyle, under US law or the 400-year international order since the Peace of Westphalia.

The attack occurred without congressional approval or even notification, let alone the declaration of war that the ever-deteriorating US Constitution requires. Unfortunately, while Congress perpetually rumbles discontent over such things, it’s likely to continue enabling, rather than punish and rein in, such abuses of presidential power.

The attack occurred on the supposedly sovereign soil of a putative ally, killing that ally’s officials and invited guests. While it’s merely an escalation, not a new phenomenon — the previous president, Barack Obama, also claimed and exercised a “right” to murder on foreign soil at will — it’s a significant escalation by a president with fewer and less loyal friends on the global stage.

Whether Trump is “wagging the dog” in an attempt to distract from impeachment, or playing “6D chess” in an attempt to get the US out of Iraq at the demand of the Iraqis themselves (I’ve heard both claims), he’s turning friends against him and currying renewed European sympathy for Iran.

The prospects for peace on Earth have receded significantly since Christmas Day.

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Real Democracy Requires a Separation of Money and State

As we enter a new year, the running battle between the world’s governments and the world-changing technology known as “cryptocurrency” continues. As 2019 drew to an end, Swiss president Ueli Maurer asserted that Facebook’s digital currency (not a real cryptocurrency), Libra, has failed “because central banks will not accept the basket of currencies underpinning it.”

Politicians want to regulate — or, if possible, kill — cryptocurrency.

Large firms like Facebook want to capture cryptocurrency’s potential without rocking those governments’ boats.

Cryptocurrency advocates want democracy. Yes, democracy.

Of all the important words in the English language, “democracy” (from the Greek demokratia, “rule by the people”) may be the most fuzzily defined. Some people define it in terms of raw majoritarianism, others as one of various forms of representative government.

I define “democracy” in words used by Thomas Jefferson in the Declaration of Independence. “Democracy,” to my mind, is government that enjoys the “consent of the governed.”

Not just the consent of 50% plus one of the governed, and certainly not just the consent of a few big players who can afford lobbyists and bribes to get their way, but the consent of ALL the governed.

One major hinge on which the door of democracy as I define it swings is control of money — who may create it, how it may be used, and what portion of it must be handed over to government for “public” uses those paying the bills may or may not approve of.

Involuntary taxation is the opposite of the consent of the governed. It’s the opposite of democracy. We can have financial regulators and central banks, or we can have democracy. We can’t have both.

Cryptocurrency threatens the reign of government over money. It bodes a future in which, as an old antiwar slogan puts it, the Air Force will have to hold a bake sale if it wants to buy a new bomber.

That’s the future I want. It’s also the future that politicians, regulators and central bankers fear.

They don’t want to have to ASK you to fund their schemes.  They’re not interested in requesting your consent. They prefer to simply demand your compliance.

The ability to anonymously handle our finances without reporting them to government or involuntarily giving it a cut is a revolutionary development. And it’s here, now. More and more of us are using cryptocurrency, and the politicians are panicking.

While cryptocurrency won’t entirely kill involuntary taxation — land can’t be easily hidden, so we can expect property taxes to persist — it will make the global economy harder for governments to manipulate and milk.

The inevitable future of cryptocurrency, absent a new Dark Age in which we all go back to plowing with mules and reading rotting old books by candlelight, is a future without income and sales taxes (to name two of the biggest and most pernicious).

The ruling class will do everything it can to prevent the coming separation of money and state.

They’ll fail. And democracy will flourish. See you at the bake sale.

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