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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Not a Fan of Artificial Divisions

I’m not a fan of the trend on social media to create artificial divisions to pit people against each other. A recent example is the condescending remark “OK boomer.”

This phrase is commonly used against anyone assumed to be a “baby boomer,” or who simply isn’t as “progressive” and “enlightened” as those weaned on “social justice” might prefer.

If someone points out problems with socialism, with basing legislation on sexual identity issues, with climate change prescriptions to be imposed on society through the “New Green Deal,” or with other topics that have been politicized, they are likely to be dismissed with this comment.

As if they are cute for being too old and backward to be taken seriously.

Why encourage this type of division? There are endless ways to categorize and divide people: generations, races, sexes, Democrat and Republican. Those who crave more control will back whichever side begs for more legislation. They will encourage them to fight and ridicule anyone who opposes handing government more control.

It’s why government loved “Baby Boomers” as long as they were useful — begging for more government programs and spending — but was happy to throw them under the bus when a new generation began to beg for “social justice” legislation the older generation saw as going too far.

“Social justice” was too good an excuse for more government control; it couldn’t be ignored.

Climate change seems to be an equally popular excuse.

Government supremacists seek to divide and conquer with whatever divisions can be imagined, created, magnified, or exaggerated.

The truth is, it’s not “Republican versus Democrat,” Baby Boomer against Generation Z, “black” against “white,” male versus female versus whatever else you imagine exists. It has always come down to those who want people to be herded, numbered, controlled, governed, and enslaved against those who recognize the equal and identical rights of all humanity and the liberty that comes from this truth.

It has always been the rulers against the people.

Increased government power depends on hiding truth from you. It depends on giving you imaginary enemies to keep you too flustered to realize who your real enemy is.

Instead of dividing, I try to support anyone I think is right, even if I am hard on them when they are wrong. I don’t fault people for who they are; only for what they do when what they do violates the liberty of others.

I’d much rather explain my reasons in either case than to dismiss people with an intentionally condescending catchphrase.

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“Human-Made Weapons”

I recently saw an anti-gun bigot on Quora make the desperate claim that there can be no right to human-made weapons because those weapons didn’t even exist until a few hundred years ago. He doesn’t believe anyone has the right to own and to carry a gun, and is apparently ignorant of human prehistory, as well.

What is so different about a human-made weapon or any other human-made artifact? How does its history bear on this issue?

And does he mean all human-made weapons, or only guns? Does the fact that it is carried instead of being a physical part of the body make the difference?

Does a rock count since it can be used as a weapon without being altered? What of pointy sticks? Or fire? What if I carry an antler with me all the time?– it’s a deer’s weapon.

Humans don’t (generally) grow horns, antlers, claws, hooves, or fangs. People of his sort believe we should be punished for “only” having a brain, instead. A brain that allows us to design, make, and use weapons which don’t grow on our bodies. He’s insane.

Want to bet he still believes there’s a right to health care or justice? Both of those only exist because humans created them– just like guns.

Does he believe you have the right to not be a slave? The recognition of the right to not be enslaved is a relatively recent discovery. Would he toss that one, too, because it’s not “old enough”?

You know he’d whine it’s not the same thing.

And, the fact remains, the real issue is that there is no right to forbid weapons to anyone under any pretext. That “right” doesn’t exist and can’t be created. Not by legislation or majority opinion.

You just can’t reason with bigots. They hate what they hate because they hate it. Politics makes people stupid.

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Was a Crime Committed?

Someone I know was told to show up for grand jury service this morning. So this seems like a good time for a link-heavy refresher on what is and isn’t a crime.

No victim; no crime.

Unless there is a “somebody” who can be pointed to (or specifically named) who had their life, liberty, or property harmed, there is no crime. There is nothing to take to court regardless of the legislation alleged to have been violated, and no matter how much evidence there may be that the legislation was violated, or how “serious” the employees of the state seem to think the violation to be. Somebody was murdered, somebody was raped, somebody was robbed, somebody was intentionally hurt, somebody was kidnapped, somebody was archated against– crime. Otherwise, no crime.

With a bit of a qualifier I’ll get to momentarily, accidents can’t be crimes even if somebody was harmed. There has to be intent for it to be a crime. The courtroom is not the place to decide on restitution for accidental harm done.

However, negligence which accidentally results in harm to somebody might be a crime in some cases, depending on how likely the act was to cause harm and how easily that harm could be foreseen by rational people. Hypothetical example: If I’m shooting at a paper target on the other side of a crowded room at my house and just as I squeeze the trigger someone steps into the bullet’s path, I was criminally negligent. Shooting the person might have been an accident, but any reasonable person could have foreseen the result of my action. It would be different if I were shooting at a target outdoors, having made sure of my target and the surroundings, and a time traveler suddenly materialized in my bullet’s path. In most cases, it’s not that obvious, though. Since this is subjective, tread carefully in this area. It’s always more ethical to let the guilty “get away with it” than to punish even one innocent person. And restitution instead of punishment is always the ethical choice, especially in the case of accidents or negligence.

Being offended doesn’t qualify as being harmed.

The State isn’t a “somebody” and neither is society.

Possession of anything, absent someone besides the someone doing the possessing being specifically harmed by that thing, can never be a crime.

The State’s courtrooms are probably not the proper place to seek justice even in cases of actual crimes.

To be better informed, learn from the Fully Informed Jury Association.

And this is why they’ll never let me on a jury.

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Jonathan Blanks: The Problem of Police Misconduct (50m)

This episode features an interview of criminal justice researcher Jonathan Blanks from 2015 by Trevor Burrus and Aaron Powell, hosts of the Free Thoughts podcast. They discuss civil liberties and police misconduct in America. Is there an upward trend in incidents of police misconduct, and if so, why? Is this just a few bad apples, or something more integral to the nature of policing in America? Just how dangerous is it to be a law enforcement officer in America? Dangerous enough to justify the military hardware the police seem to enjoy using so much?

Listen To This Episode (50m, mp3, 64kbps)

Subscribe via RSS here, or in any podcast app by searching for “voluntaryist voices”. Support the podcast at Patreon.com/evc or PayPal.me/everythingvoluntary.

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A Modest Proposal for Improving Senate Impeachment Trials

US Senator Lindsey Graham (R-SC) makes no bones about his position on the likely upcoming impeachment trial of US president Donald Trump. “I am trying to give a pretty clear signal I have made up my mind,” he tells CNN International’s Becky Anderson. “I’m not trying to pretend to be a fair juror here.”

Well, okay, then. Graham has publicly disqualified himself as, and should be excused from serving as, a juror.

Republican politicians, including Graham, have spilled quite a bit of verbiage whining — ineffectually and incorrectly — about a lack of  “due process” in the House segment of the impeachment drama.

Their errors on those claims are simple: Impeachment isn’t a criminal prosecution, nor is a House impeachment inquiry a trial.

There won’t be any “nature and cause of the accusation” for Trump to be “informed of” until the House passes articles of impeachment.

If impeachment was a criminal matter,  he would be constitutionally entitled “to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence” at trial. And in fact he will be treated as entitled to those things, even in the Senate’s non-criminal equivalent.

But Graham and friends want to talk about due process, so let’s talk about due process.

In addition to those aforementioned items, the Sixth Amendment also mandates “an impartial jury.”

If you’re accused of armed robbery, your brother won’t be allowed to serve on the jury at your trial. Neither will the bank teller who was ordered to stuff money in a sack at gunpoint, or the police officer who arrested you, or anyone else who’s known to likely be prejudiced either way.

Is there any particular reason why the due process requirements Graham hails as paramount wouldn’t mandate a similar standard for impeachment trials in the US Senate? I can’t think of one.

In Senate trials of impeachment cases, the Chief Justice of the United States (in the current controversy, John Roberts) presides as judge.

Once the House passes articles of impeachment, Roberts should order his clerks to drop everything else and get to work examining the public statements of all 100 members of the US Senate. His first order of business at the trial should be to excuse any and all Senators who have publicly announced their prejudices on Trump’s guilt or innocence from “jury duty.”

Yes, Democrats too. That should come as a relief to several Democratic presidential aspirants who would probably rather spend their time on the 2020 campaign trail than as impeachment jurors.

The Constitution only requires the votes of 2/3 of US Senators PRESENT at the trial to convict, so excusing those members who have announced their prejudice and partiality wouldn’t prevent a valid verdict.

Would “impeachment voir dire” render future impeachments more “fair” and less “partisan?” Probably not. But it would at least spare us some theatrics from the likes of Lindsey Graham by making pretrial silence a condition of participation.

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