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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Crazy People Work on the Most Interesting Stuff

Think of the most exciting possible inventions and discoveries you can imagine.

Deep space travel. Telepathy. Wireless electricity. Anti-gravity. Cold fusion. Terraforming. etc.

If you poke around YouTube or podcasts or badly designed websites, you’ll find people working on them. Devoting years to research and experimentation. You’ll notice their passion and conviction. But you’ll also notice something else: most of them are kinda crazy. Whether or not they are discovering anything true, you suspect they would be the last people on earth capable of bringing their idea to market or even credibly explaining it outside their niche circles.

But if you poke around places full of high achieving people with sharp minds, big vision, and lots of ability, you won’t hear them say stuff like, “I’m working on faster than light travel. I think the current model of physics is all wrong, and I suspect it’s possible so I want to prove it.”

Most of the best, most respected minds seem to be employed on the more mundane stuff. Sure, they’re doing cool valuable stuff (except when they go into politics), but how often does it question the most fundemental assumptions?

We know so very little about reality. We don’t even know what we don’t know, or whether what we know is actually true. And the most fundamental stuff – the nature and origin of the universe, our planet, our species, the basic rules of the physical strata, consciousness, death and beyond – is the stuff most of us spend the least time on.

Except the crazy people. They live there.

Part of the crazy label comes because they are working on this stuff. To examine widely accepted beliefs is often considered crazy. Part of the label is because most of the time these people are crazy. So it feeds itself. People who don’t know how to be normal are more likely to go into crazy stuff because they have less to lose. The more they do, the more the belief that “only crazy people study that” is re-enforced and better minds are repelled.

I’m not trying to place blame or cast judgement. I’m trying to understand this phenomenon. It’s the same thing that causes most conversations with neighbors and acquaintances to be so boring. Most of us – myself included – are not willing to dive into crazy stuff most of the time. If your reputation is shot, say, because you’re crazy, it’s easier.

Conformity is a powerful force. I try to do a little something every day to combat it. A world of crazy questions is much more interesting than a world of probably wrong answers no one wants to talk about.

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Honor Is a Game of Chess, Not Checkers

“It’s chess not checkers.”

That’s what my jiu jitsu coach told me once when I asked about when to or how to use a takedown. In as complex a fighting style as jiu jitsu (just like in chess, as opposed to the simpler game of checkers), there isn’t really a clear answer about when to use a “move.”

I’m learning that honor is that way, too. Honor is complex because life is complex. Rarely does it fit into a one-dimensional ruleset.

There is honor in going to bat for an ideal. But there will be times when honor requires that you prioritize a person over an ideal.

There is honor in being truthful about your own faults. But there will be times when standing proud is the most honorable thing you can do.

There is honor in standing up for someone else’s reputation. And there may be times when sacrificing your own reputation for honor may be the honorable thing.

There will be times when it is honorable to call things out. There will be times when it is honorable to stay silent.

There is honor in fighting an enemy, but there may be times when honor may require you to forgive or even work with an enemy for the sake of a greater good.

There is honor in disrespecting the disrespectable. And yet there may also be times when honor requires you to admit your foolishness to fools or your guilt to the guilty.

Honor is complex. It’s a strange, evolved code of lived-out truth, courage, loyalty, fairness, and personal risk. All of these dimensions of honor have to be combined in an honorable decision.

But all of this is not to say that the honorable way is hard to recognize. Honor is complex because life is complex, but we are ourselves complex beings. We have evolved with honor, and (somehow) we always know how to head in the direction of honor. We won’t know the exact steps to get there, or exactly where we will end up, but after all, that is what makes the game interesting.

Originally published at JamesWalpole.com.

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The Monsters You Tolerate Will Breed Monsters You Can’t Stand

In the 20th century, the story of European imperial holdings was a story (mostly) of communism.

Do you think Winston Churchill anticipated this? Rudyard Kipling? Any of the other enthusiastic imperialists of the 19th century? They may have seen themselves as defenders of a very different kind of order.

Yet nonetheless in promoting imperialism (bad) the European imperialists created militarized, policed cultures. They created egregious inequalities of authority and status. They created societies more dependent on the state. And of course, they created people resentful at rule from afar.

Is it any wonder with all of these factors considered that the “dominoes” in the former European holdings fell so fast?

The Europeans created the emotional hatred of Westernness and (and therefore anything associated to it that any actual good contributions of Europe were threatened.

The monster they tolerated (imperialism) directly bred the (worse) national socialism/communism that took over throughout South America, Africa, and Asia.

What if the European empires had ended their colonial rules 50 or 100 years earlier? All other things being equal, it’s hard to believe that communism would have swept Africa, Asia, and South America as it did. And it’s possible the countries of the West would not have ended up at the gunpoint of countries which they once held at gunpoint.

It happened slowly, then all at once, but the imperialism that Europe tolerated in its own codes of values led to the communism which the Churchills and Kiplings would never have embraced.

What monsters do you tolerate? They may not torture you as they torture people around you. But they will breed. And the offspring of the evils you tolerate in yourself may become a clear danger to you, too.

Originally published at JamesWalpole.com.

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Anti-Liberty Pro-Gunners

I’m a member of a “gun owners’ group” on Facebook. I rarely post anything there because the majority of the other members are statist clowns.

Generally, they embrace Right-Statist policies, no matter how anti-liberty those policies are.

Most hypocritically, they support police, even in the comments they make while posting links to stories about cops murdering innocent people. They seem to really believe cops would never enforce anti-gun “laws” even while seeing them enforcing those types of “laws” everywhere every day. It’s insane!

When I point this out I get attacked.

Some legislation enforcement goon was puffing out his chest (in comment form), saying he would never participate in gun confiscation, but when I asked about other gang activities I suspect he participates in (prohibition, rules against full-auto weapons, seat belt enforcement, “speeding” tickets, etc.), people lost their minds. I was the bad guy.

They get all dreamy-eyed when a sheriff poses and says no gun confiscation (ala Bob’O O’Rourke) will be allowed to happen in this state (New Mexico). No recognition of the illegal “laws” those same sheriffs help enforce every single day– including gun confiscations.

I’m surprised they haven’t kicked me out of the group yet– but, like I say, I rarely comment on anything, because of what invariably happens when I do.

Right-Statists are anti-gun, just like Left-Statists are. They just use different excuses and go after guns from a different angle. If you’re a statist, you are anti-liberty at your core.

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The Roots of Inertia

Why don’t low-skilled workers try harder to better their condition?  While this might seem a neoliberal question, it weighs on Barbara Ehrenreich’s mind:

I was baffled, initially, by what seemed like a certain lack of get-up-and-go on the part of my fellow workers. Why didn’t they just leave for a better-paying job, as I did when I moved from the Hearthside to Jerry’s?

She starts with some textbook economic answers.  There’s transaction costs:

Part of the answer is that actual humans experience a little more “friction” than marbles do, and the poorer they are, the more constrained their mobility usually is. Low-wage people who don’t have cars are often dependent on a relative who is willing to drop them off and pick them up again each day, sometimes on a route that includes the babysitter’s house or the child care center… I have mentioned, too, the general reluctance to exchange the devil you know for one that you don’t know, even when the latter is tempting you with a better wage-benefit package. At each new job, you have to start all over, clueless and friendless.

And information costs:

There is another way that low-income workers differ from “economic man.” For the laws of economics to work, the “players” need to be well informed about their options…

But there are no Palm Pilots, cable channels, or Web sites to advise the low-wage job seeker. She has only the help-wanted signs and the want ads to go on, and most of these coyly refrain from mentioning numbers. So information about who earns what and where has to travel by word of mouth, and for inexplicable cultural reasons, this is a very slow and unreliable route…

Soon, however, she appeals to industrial psychology.  Employers win workers hearts and minds – what Ehrenreich calls, “the co-optative power of management, illustrated by such euphemisms as associate and team member.”  And don’t forget learned helplessness:

Drug testing is another routine indignity. Civil libertarians see it as a violation of our Fourth Amendment freedom from “unreasonable search”; most jobholders and applicants find it simply embarrassing…

There are other, more direct ways of keeping low-wage employees in their place. Rules against “gossip,” or even “talking,” make it hard to air your grievances to peers or-should you be so daring-to enlist other workers in a group effort to bring about change, through a union organizing drive, for example. Those who do step out of line often face little unexplained punishments, such as having their schedules or their work assignments unilaterally changed. Or you may be fired…

The big picture, though, is that the capitalist system breaks workers’ spirits:

So if low-wage workers do not always behave in an economically rational way, that is, as free agents within a capitalist democracy, it is because they dwell in a place that is neither free nor in any way democratic. When you enter the low-wage workplace-and many of the medium-wage workplaces as well- you check your civil liberties at the door, leave America and all it supposedly stands for behind, and learn to zip your lips for the duration of the shift. The consequences of this routine surrender go beyond the issues of wages and poverty. We can hardly pride ourselves on being the world’s preeminent democracy, after all, if large numbers of citizens spend half their waking hours in what amounts, in plain terms, to a dictatorship.

The obvious response to all of these stories, however, is: “Why don’t the same factors prevent high-skill workers from trying to better their condition?”  Let’s consider each in turn.

Transaction costs.  While high-skilled workers have fewer problems with transportation and child-care, they also have much more specific skills.  This seriously impedes job search.  To find a new job, most nuclear engineers – and many professors – would have to not just sell their homes, but move to a new city.  The high-skilled are also more likely to be in two-earner families, which makes relocation doubly disruptive.

Information costs.  Firms often publicly advertise low-skilled wages.  This is much less true for high-skilled jobs.

Hearts and minds.  High-skilled workers seem much more likely to identify with their employer – and to define themselves in terms of their work.

Learned helplessness.  Again, the indignities required for starting a high-skilled job probably exceed those for low-skilled employment, especially if you’re a government contractor.  Once hired, however, the petty indignities high-skill workers endure are admittedly lower.  (Here’s why).

The capitalist system. Almost no employer cares for kvetching, but high-skill workers probably feel freer to speak up on the job.  Off the job, however, they are probably more worried about offending bosses, co-workers, or clients.  Who cares what a waiter posts on Facebook?  In any case, why should lack of voice reduce enthusiasm for exit?

So why then don’t low-skill workers try harder to better their condition?  All of Ehrenreich’s answers prove too much.  The better story is simply that there is a distribution of desire to better your condition.  In short, human beings have heterogeneous ambition. Some burn to rise; others take life as it comes; most lie somewhere in the middle.  And though mere desire hardly ensures success, ambition usually works in the long-run.  The more you want to better your condition, the better your condition eventually tends to become.

Like Ehrenreich’s story, my story explains why low-skill workers seem “stuck.”  Unlike her, however, I can also explains why high-skill workers seem mobile.  In short, what my “heterogeneous ambition” story lacks in Social Desirability Bias, it makes up for by explaining mobility and inertia, rather than inertia alone.

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