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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The Difference Between Public Libraries and Public Schools

Plans for the Boston Public Library, the nation’s second-oldest public library, were approved in 1852, the same year Massachusetts passed the country’s first compulsory schooling law. Both public libraries and public schools are funded through taxation and both are “free” to access, but the similarities end there. The main difference between public libraries and public schools is the level of coercion and state power that public schooling wields.

Voluntary vs. Compulsory

Libraries are open and available for anyone to access. You can quickly sign up for a library card if you want borrowing privileges, but you don’t have to. You can come and go freely, spend time in whatever library sections most interest you, ignore ones that don’t, and leave when you want. You can ask for help and support from a librarian if you choose. You can participate in a class that the library offers or access one of the library’s many online resources, but those are all optional. You may not always like a library’s programming, but you don’t have to participate in anything you don’t want to. If you don’t like your neighborhood library, you can freely visit one in another neighborhood or another town. You mix daily with a wide assortment of people of all ages and backgrounds at your library, reflecting the diversity of your community. Aside from the public levy, everything is voluntary.

Moreover, you don’t ever have to step foot in a library and still have access to books and resources through bookstores and online retailers. Your library has no control over what your local bookstore sells, and the library system can’t dictate rules to Amazon.

Parents are required to register their children for school under a legal threat of force, and the ages at which a child must attend school are lengthening.

Public schools, which are more aptly called government schools because of the force associated with them, are nothing like public libraries. Parents are required to register their children for school under a legal threat of force, and the ages at which a child must attend school are lengthening. Parents can choose to homeschool or enroll their child in a private school, but in most states, homeschooling and private schools are regulated by the state under compulsory schooling statutes. Education is controlled by the state, even for non-public entities that receive no public money.

This is akin to your public library monitoring the books that Barnes & Noble sells, but it goes well beyond that. In each state, young people are required to meet certain attendance thresholds in terms of hours of classroom learning. It would be like the library system mandating that you visit your library—assigned to you based on your zip code— a certain number of days and hours each year, or, alternatively, visit Barnes & Noble for those same number of days and hours with a report to the state to prove it. While you’re at your library or bookstore, you are also required to learn about specific subjects whether you want to or not. And there may be a test.

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Freedom over Force

If the public library system had the same power as the public schooling system, there would be far fewer private booksellers. When you are required by law to receive library services for a certain number of hours per year, you will likely go with the “free” option rather than paying to receive your mandatory library services at Barnes & Noble, which would charge a fee. Indeed, this happened with mandatory schooling.

Most of us would never tolerate a level of coercion and state power associated with public libraries that we routinely accept with public schools.In his book Schooled to Order, historian David Nasaw explains that as government schooling became compulsory in Massachusetts, the number of private schools in the state dropped from 1,308 in 1840 to only 350 by 1880.[1]  Similar trends occurred in other states as they enacted compulsory schooling laws, with private school enrollment subsequently plummeting. It’s hard to compete with “free” and compulsory.

Most of us would never tolerate a level of coercion and state power associated with public libraries that we routinely accept with public schools and education more broadly. As back-to-school time nears, it’s worth celebrating the many ways that public libraries facilitate non-coercive, self-directed learning for all members of the community and questioning why we would ever want our children to learn in spaces where force, not freedom, prevails.

[1] Nasaw, David. Schooled to Order: A Social History of Schooling in the United States. New York: Oxford University Press, 1979, p. 83.

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Socialism Sucks, and Everyone Ought to Know It

Today my friends Bob Lawson and Ben Powell have released their new Socialism Sucks: Two Economists Drink Their Way Through the Unfree World.  Intellectually, EconLog readers will know the score, but Socialism Sucks embeds good economics and economic history within an irreverent travelogue.  Modern socialist rhetoric is so ahistorical and otherworldly that it’s great to hear reports about what North Korea, Venezuela, and Cuba are actually like.  Along the way, Lawson and Powell thoughtfully explore the whole “That’s not real socialism” slogan. Quick version: Contrary to First World socialists, it’s the hell-states that are real socialism, and the success stories of Scandinavia that are fake socialism.

I actually had the privilege of workshopping the draft of this book.  Some of the attendees urged Bob and Ben to rewrite the book to appeal to young progressives, but I insisted that this was a task for a completely different book.  Socialism Sucks speaks to people with common sense and a sense of humor who simply don’t know much about socialism.  That includes 95% of American conservatives, who normally have negative feelings about the socialist label but who couldn’t tell you about the Holodomor, the Gulag, the Great Leap Forward, or the Laogai, much less the Molotov-Ribbentrop Pact or the Killing Fields.  Talk radio is going to try to angry up its listeners anyway, so it might as well angry them up against smug nostalgia for a totalitarian idea that murdered over a hundred million people and reduced dozens of nations to slavery while claiming to be the greatest of heroes and humanitarians.

Do Lawson and Powell really think that young self-styled American socialists are plotting mass murder?  Do I? My answer, at least, is, “I severely doubt it, but I shouldn’t have to wonder.”  When activists gush about the glories of socialism as if the Soviet Union never existed, all people of common decency should be horrified.  The right response to the slogan, “We want Sweden, not Venezuela” really is, “The Venezuelans didn’t want Venezuela either, but that’s what they got.”

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Teletrouble

Nobody asked but …

Maybe it’s because I got my driver’s license renewed last week, but my phone is ringing off the wall with calls that usually start like this, “hello, this is Bob (or Chuck or Wayne or some other macho moniker) on behalf of the Police Fund for [whatever].”

Firstly, yes, that’s correct, we here in Kentucky must seek the permission of the state to engage in human action, and pay for it, and get placed on all kinds of lists, official, semi-official, quasi-official, and pseudo-official.  I mutter under my breath, Robert A. Heinlein’s admonishment,

I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do.

I do not tolerate police fund drives, much less those that are conducted by mercenaries (paid fundraisers).  In particular, I don’t tolerate fund drives that purport to be for the benefit of some underprivileged set.  I can just see the wretches held incommunicado someplace for a week, listening to and watching 24/7 propaganda.

— Kilgore Forelle

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Instead of a US Peace Plan for the Middle East, How about a US Peace Plan for the US?

US Secretary of State Mike Pompeo describes the Trump administration’s plan for peace between Israel and Palestinian Arabs as “unexecutable.” President Trump says Pompeo “may be right.”

Good! As addiction counselors say, the first step is admitting you have a problem.  With addiction, the way out is not “if at first you don’t succeed, try, try again.” It’s admitting that the thing you’re addicted to will never solve your problems and giving up that thing.

The United States suffers from a long-term addiction, since at least the end of World War 2, to trying to run the world.

That addiction has cost American taxpayers trillions of dollars.

It’s cost the lives of hundreds of thousands of Americans and millions of citizens of other countries.

It’s empowered evil regimes to suppress human rights both at home and abroad.

And it has never, ever “worked” in the sense of bringing about lasting peace, any more than booze saves marriages or methamphetamine repairs mental anguish.

In fact, just like booze or methamphetamine, the US addiction to world “leadership” wrecks the lives of everyone around the addict too. Which means that if the US gets its act together, everyone else, not just Americans, will be better off.

Here’s a four-step peace plan that addresses the roots of the problem instead of just unsuccessfully trying to treat the symptoms:

First, the US should shut down its military bases on foreign soil and withdraw its troops from the foreign countries they’re currently operating in.

Second, the US should end economic sanctions on, and extend full diplomatic recognition and trade privileges to, all the countries it’s currently bullying.

Third, the US should end all foreign aid, especially military aid.

Fourth and finally, the US should dramatically decrease its so-called “defense” budget to levels consistent with actual defense.

Cold turkey withdrawal may be out of the question, but the US can and should wean itself off the damaging drug of foreign interventionism.

Let the Arabs and Israelis settle their own hash. Quit taking sides between Saudi Arabia and Iran. Stop pretending North Korea is or ever has been a threat to the United States. Step back and let Venezuelans, Syrians, and Libyans decide who’s going to run Venezuela, Syria, and Libya.

It won’t be easy, but it’s not complicated either. The US can continue drinking itself to death on the poison of foreign meddling, or not. Not is better.

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The 11 Life Lessons It Turns Out I’ve Taught My Six Kids

On my 46th birthday recently, my (mostly adult) kids wrote out a list of lessons I’d taught each of them in their lives so far. Each wrote their own list, and my wife Eva sweetly put them together in a notebook.

As I read through them, I felt like crying. It’s so incredibly touching that they appreciate what I’ve been trying to pass on to them, things I’ve been learning and want them to understand.

As a father, there are few things more meaningful than to see how you’ve helped your kids through your example and talks over the years. We have a mixed family of 6 kids, aging from 13 years old to 26 years, and all of them are wonderful human beings.

It turns out, there were some lessons that all or most of the kids put on their list, which I’m going to share with you here. These lessons they had in common made me wonder if these were the more powerful lessons, or if they were simply the ones I talked about the most. 🙂

So here they are, roughly ordered in how frequently they showed up on my kids’ lists:

  1. Don’t be afraid to make mistakes, and it’s okay to fail. This was tied (with the next one) as the most common lesson on their lists — it made all their lists, I think. I really love that this lesson hit home with them.
  2. Have empathy & try to see things from others’ perspectives. This was the other lesson on all their lists, and again, it’s beautiful that they all took this to heart. I’ve tried to show them this through my actions, though of course I’m not at all perfect.
  3. Push out of your comfort zone. This is another one I’ve tried to teach by example, from running several marathons and an ultramarathon to doing things that scare me, like speaking on stage or writing books. This lesson is so important to me that
  4. Don’t spend more than you have. This is such a simple idea, but one that is rarely followed. I’m glad my kids are starting out with this mindset — live within your means, save as much as you can.
  5. Appreciate what you have & enjoy where you are right now. I love this one. It’s something that I try to embody, but also remind them when they are thinking about what they don’t have. Each time we’re stuck in complaint, it’s an opportunity to wake up to the beauty that’s in front of us.
  6. Sadness is a part of life, and there’s nothing wrong with feeling it. Despite what I said in the previous item, it’s OK to feel sadness, pain, grief, frustration, anxiety, anger. In fact, most of us never want to feel those things, so we’ll do whatever we can to ignore them or get away from the feelings. Instead, I try to actually feel those things, as an experience. It teaches me about struggle — if we’re not willing to face our own struggles, how can we be there for others when they struggle?
  7. Don’t give up just because something gets hard. As new adults, our four oldest kids are facing various struggles in new ways. This is part of growth, of course, but struggles never feel good. My job as dad has been to encourage them not to give up just because it’s hard — to keep going, and to use the struggle to grow.
  8. But don’t overwork yourself. That said, I’m not a fan of overwork. I believe the brain doesn’t function well if you keep studying or working past the point of exhaustion, so I try to teach them about taking breaks, resting, going outside and moving.
  9. It’s okay to be weird in public. Have fun. I’m not sure why several of them had this on the list — they must have learned to be weird from someone else? OK, in truth, they might have gotten it from my tendency to dance and skip with them while we’re out walking around in a city, or to encourage us all to do weird things as a group, no matter what other people might think.
  10. Your reality is a reflection of the narrative you tell yourself.
  11. Make people laugh. It makes their day brighter.

I love my kids with all my heart, and it has been a privilege to be their dad. I take 10% of the credit and give the rest to their moms, grandparents, and themselves.

Btw, you can read Chloe’s full list in her blog post.

Also … from them, I’ve learned some lessons that are just as important:

  • Kids deserve to be heard, to be listened to, to be respected. I started out as a dad with the idea that what I say goes, and they just need to listen to me! But over the years, I’ve learned to listen to them, and treat them as I’d want to be treated.
  • Kids have tender hearts that hurt when you aren’t kind to them. As a young dad, my frustrations and insecurities led me to angry bursts of scolding, yelling, spanking. I’ve grown since then, but more importantly, I’ve learned to see the tenderness of their hearts, and how it hurts to be yelled at by someone they trust and love so much. I am much more gentle with those hearts these days.
  • I should relax and not take myself so seriously. Whenever I think too much of myself, my kids humble me. Whenever I get too serious, my kids laugh at me. I love that playful reminder to loosen up.
  • Dads are goofy, dorky, uncool. And that’s how we should be. I sometimes harbor the notion that I can be a “cool” dad. When I try to break out newish slang or reference a meme, my kids will tease me about it. When I break out a joke or pun that I think is hilarious, they’ll laugh while rolling my eyes and calling it a “dad joke.” So I’ve learned just to embrace my uncoolness, and be myself with them.
  • All they need is love. There are lots of things to stress out about as parents, and nowadays we tend to obsess about getting everything right with our kids. But really, we’re stressing about it too much. All the details are just details — there’s only one thing that really matters. They want you to love them. And to receive their love. That’s all. Feed them, clothe them, shelter them, educate them, sure … but beyond that, they just want you to love them. Drop everything that gets in the way of that and let it come out as simply and clearly as you can.

Thank you, my loves.

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