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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Defending the Castle

My first house was eight-hundred and twenty square feet, in a “working class” neighborhood beyond the city limits at the edge of hundreds of acres of woods.

I was home alone one day. My days off were Thursday and Sunday, so this would have been a Thursday afternoon.

My (at-the-time) wife had the car with her (the other one must have been in the shop) so it looked like no one was home.

I was back in the bedroom and heard the front door open and someone come in. I glanced out the window but the car wasn’t there so it wasn’t my wife getting home early.

I grabbed the .22 rifle sitting in the corner and walked to the living room and the front door.

There, in the middle of the room looking a bit shocked, was a boy of around 10 years old. I wasn’t pointing the rifle at him, but I had it ready and asked what he was doing in my house. He stammered that he was looking for me. I said “Well, here I am. What do you want?

He couldn’t come up with a plausible story and I told him to get out and to never set foot on my property again. As far as I know, he didn’t.

A couple of weeks later I heard that several houses in the neighborhood had been burgled— with TVs being the most commonly stolen object. This kid wasn’t big enough to carry most TVs of the era (mid to late 1980s), but he was big enough to scope out houses for an older sibling or a parent. I was glad I was paying attention and glad I looked scary enough that I didn’t seem worth the risk.

But I did start locking the door when I was home alone.

My yard eventually became scary enough that no one wanted to come near my house, anyway. Not even the meter readers for the electric utility, who told my dad– their boss– that a Satan worshiper lived in that house. They came to this conclusion because there were skulls and strange “ritual objects” in the yard.  It turns out they were scared of my tomahawk block and my sling target (which was a cow skull on a crude tripod). Plus, I didn’t mow except for a narrow strip right around the house (I’ve never believed in mowing our lawns). Whatever works, right?

Some defense is active and some is passive. I support the use of both.

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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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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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Offering You The Gift of Liberty

There’s one Christmas gift I’d love to give you: the gift of liberty. The freedom to do everything you have a right to do. It’s a gift bigger than you can imagine.

Alas, it’s not possible to give anyone liberty. In order for you to have liberty, you’ve got to make it for yourself, with your own hands, and put it to daily use.

Plus, even if I could give you liberty, it would most likely be illegal.

The best I can do under the limitations of reality is get you to recognize your own liberty and encourage you to use it every day, everywhere you go, regardless of who tries to scare you out of it.

I will also refuse to violate your liberty in any way; including not seeking legislation to fence you in nor to take your property for my pet projects.

What would you like your box of liberty to contain? As long as it doesn’t violate anyone else’s equal and identical rights, it’s in there. It has to be in there — you made it yourself and placed what you wanted inside. It’s waiting for you to take it out of the box and use it. How great is that?

Recently an online commenter, who was trying to sell me on the wonders of socialism, was saying I’m a crook for having a house while there are homeless people in the world. She scolded me, saying I only care about myself, no matter how many people I hurt. She couldn’t admit that in her ideal world there would be no reason for anyone to build houses. Why struggle and sweat if someone is forced to hand you everything you need?

The gift she was offering had shiny wrapping paper and a sparkly bow, but inside was the stench of harsh reality. A reality she refused to smell as she heaped on the personal insults because I couldn’t tell her who, specifically, had been robbed of the property my house sits on over the past 13,000 years since “Clovis Man” dropped a few stone tools in Blackwater Draw. Actually, she only cared about the last few centuries for some arbitrary reason. I guess those who came before that don’t matter to her.

You are free to take the gift she and her political comrades are offering, or you can take my suggestion and give yourself the gift of liberty. Which one do you think you deserve? I believe you deserve the very best.

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Stephan Kinsella: How to Think about Property (41m)

This episode features a talk by libertarian theorist and patent attorney Stephan Kinsella from 2019. He explores the roots and structure of property rights. Purchase books by Stephan Kinsella on Amazon here.

Listen To This Episode (41m, mp3, 64kbps)

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