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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I Dream of Anarchy

Literally.

Last night I dreamt (whoa, spellcheck doesn’t like “dreamt”. This prompted Googling. Apparently some do not accept this spelling. Weird.) that I was at some event somewhere, and some guy showed up. He was there either as a maintenance man to fix some kind of large trailer, or he was there to interview the attendees. It was a dream, so maybe he shifted between both roles.

Anyway, he made some comment about libertarians being recalcitrant. I asked what he meant. The rest of the dream was a discussion between us. I told him the classical liberal tradition is long and broad. You might begin at Hesiod, then Aristotle. You might include interesting figures most have never heard of, like Auberon Herbert, as well as luminaries like Adam Smith and Milton Friedman.

As any good conversation about liberty ought to, it turned to the question of anarchy. Not in the positive, bomb-throwing sense. Anarchy simply meaning society without a political ruler, or without the initiation of violence. I shared with him a deep and rich body of thought, from Linda and Morris Tannehill, to Lysander Spooner, to Frank Chodorov, to Roy Childs, to David Friedman (Milton’s son), to Spencer Heath MacCollum, to Murray Rothbard, to Leo Tolstoy, to Leonard Read, to Randy Barnett, to John Hasnas, to Bruce Benson, to Robert Higgs, to Edward Stringham, to Peter Leeson, to Jeffrey Tucker and more.

Then we discussed the lived experience of a great many societies at a great many periods in history – some long, some short. We talked about the Hanseatic League. We talked about free market money in Scotland. We talked about the not so wild, wild West in the U.S. before government and military arrived to “civilize” it with violence. We talked about the nearly three-hundred years of peaceful anarchy in Iceland.

We talked about every major function of the current government – from police, to courts, to rule-making, to defense, to infrastructure, to money, to education, to health care – and discovered how every one of them emerged as a market function that was only co-opted by violent monopolists late in the game, and that the monopolized version is in every way morally and practically inferior to its voluntary foundation.

I haven’t had an ideological debate or attempt to persuade anyone in years. I’ve moved into the world of action through entrepreneurship, trying to build a freer, better, more peaceful world through voluntary exchange instead of arguments. But this dream was a ton of fun. I woke up with my mind reeling through all the other stuff we didn’t even touch on. My intellectual and experiential journey to anarchism took nearly a decade and thousands such arguments, books, lectures, observations, points, and counterpoints. It felt like I crammed a few years worth into a single conversation in a dream. It was kind of a rush!

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Unshakable Faith in The State

A couple of nights ago, an odd confluence of things made me consider my statist family members.

I’m currently watching The Man in the High Castle after I accidentally subscribed to Amazon Prime for a month, and then I ran across this piece of fiction in The Voluntaryist, and that combination started some wheels a-turning.

Had Germany won WWII, would my parents have grown up to be loyal Nazis? Believing the Bible told them that God had put that government over them and it was their duty to obey and be good citizens?

It really seems as though nothing can shake their faith in the U.S. feral government and its escalating police state. They may oppose certain policies or even most politicians, but they never question the institution of political government itself. They refuse to consider that the U.S. government might not be ethically superior to all others or that perhaps political government isn’t necessary at all. And, of course, they are enthusiastic supporters of the State’s reproductive organs. They are good Americans in all the ways the U.S. government wants.

So, had they grown up immersed in a slightly different political environment, would they manage to question its legitimacy when they can’t seem to do that with this one now? Would any “patriotic American” be able to do that?

I wonder…

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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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Meet Virgil Griffith: America’s Newest Political Prisoner

On November 29, FBI agents arrested hacker and cryptocurrency developer Virgil Griffith. His alleged crime: Talking.

Yes, really.

The FBI alleges that Griffith “participated in discussions regarding using cryptocurrency technologies to evade sanctions and launder money.”

Griffith, a US citizen who lives in Singapore, gave a talk at conference on blockchain technology in April. Because that conference took place in North Korea, the US government deems him guilty of violating US sanctions on Kim Jong-un’s regime.

But last time I checked, the First Amendment protected Virgil Griffith’s right to speak, without exceptions regarding where or to whom.

And last time I checked,  the US Department of Justice’s jurisdiction didn’t encompass Singapore (where Griffith lives), China (which Griffith traveled through), or North Korea (where Griffith spoke). The charges against him include traveling, while outside US jurisdiction, to places the US government doesn’t like.

In what universe is it the US government’s business where an individual travels to or what that individual says while he’s there, inside or outside the US itself? Certainly not any kind of universe in which America remains a free society.

What kind of state arrests people for going where they please and saying what they choose without that state’s permission? A police state.

Griffith’s arrest is wholly illegal under the US Constitution and wholly unacceptable to anyone who holds freedom as a cardinal value.

Virgil Griffith is just the latest political prisoner of the US government to come to public notice.

The US government imprisoned US Army intelligence analyst Chelsea Manning, journalist Barrett Brown, and others for telling us the truth about that government’s conduct, and would love to do the same to Julian Assange,  Edward Snowden, and others for the same reason.

The US government imprisoned Ross Ulbricht for running a web site on which people bought and sold things that government didn’t want them to buy and sell.

The US government has held, and continues to hold, too many political prisoners to name in a single column.

The US government increasingly attempts to dictate where all of us may go, and what we may say while there, on pain of arrest and imprisonment.

That’s not right. That’s not freedom. That’s not America.

Virgil Griffith and the others I mention aren’t the criminals — their persecutors are. At some point, we must bring them to justice if human freedom is to survive. Until then, resist much, obey little.

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