One Day After Zero Hedge, FT “Unmasks” SoftBank As Call-Buying “Nasdaq Whale”

One Day After Zero Hedge, FT “Unmasks” SoftBank As Call-Buying “Nasdaq Whale”

Tyler Durden

Sat, 09/05/2020 – 04:22

Yesterday, as the gamma meltup insanity of the past month finally rolled over and tech names tumbled, we said  the real questions emerge and first and foremost is who was it that led this furious gamma charge higher, taking on virtually every dealer?”

As a reminder, this came following several weeks of bizarre market moves duly discussed here, which we said could be described as an unprecedented “epic battle” in gamma “between one or more funds who were aggressively loading up on gamma and bidding up calls to the point that VIX was surging even as stocks hit 9 consecutive all time highs, while dealers were stuck “short gamma” and in their attempts to delta-hedge the ever higher highs, would buy stocks thereby creating a feedback loop where the higher the market rose, the more buying ensued.”

Yesterday, we first identified the solitary party that was responsible for the unprecedented call-buying insanity as Japan’s bizarro VC/media conglomerate SoftBank, and elaborated:

It is hardly unreasonable to imagine SoftBank, the “brains” behind such catastrophic investments as WeWork, WireFraud WireCard, and countless other failed “unicorns” would desperately try to Volkswagen not just a handful of tech names, but the entire market in the process. After all, Masa Son is desperate to deflect attention from the fact that as we put it last October, “SoftBank is the Bubble Era’s “Short Of The Century.” And if there is one thing that can salvage the Japanese VC titan’s reputation it is a second tech bubble which blows out the valuation of his countless (otherwise worthless) investments which form the backbone of SoftBank’s “AI Revolution” whatever that means.

Today, one day after our original report, the Financial Times catches up and confirms that SoftBank has been “unmasked as the ‘Nasdaq Whale’ that stoked the tech rally”, writing that Masa Son’s investing vehicle “has bought billions of dollars’ worth of US equity derivatives in a move that stoked the fevered rally in big tech stocks before a sharp pullback on Thursday, according to people familiar with the matter” (oddly enough, the FT forgot to note that “this was first reported by Zero Hedge” but whatever.)

While traditionally SoftBank for investing in either unicorns or megafrauds such as WireCard, the FT repeats what we first said, namely that SoftBank has “also made a splash in trading derivatives linked to some of those new investments, which has shocked market veterans.” It goes on to quote a derivatives-focused US hedge fund manager “These are some of the biggest trades I’ve seen in 20 years of doing this. The flow is huge.

How huge? Huge enough to send the implied vol of calls of the world’s biggest company, Apple, soaring at the same time as its stock price hit record highs.

It’s also why the S&P kept rising alongside the VIX, which hit a record high at a time when the S&P was also at an all time high, as we first pointed out on Wednesday, warning that the last time this happened was when the dot com bubble burst.

How much did SoftBank buy? According to the WSJ, which also moments ago confirmed our original reporting, SoftBank…

… spent roughly $4 billion buying call options tied to the underlying shares it bought, as well as on other names

… which due to the embedded leverage in options, is the equivalent of buying tens if not hundreds of billions of underlying stocks, thus sparking the massive upward move in the handful of tech stocks which then spilled over everywhere.

And speaking of underlying stocks, in Q2 SoftBank just so happened bought brand new stakes in all the super high beta names including Amazon, Google, NVidia, Tesla, Netflix, Zoom and so on.

SoftBank’s trade was simple: buy billions in underlying ultra-high beta stocks, then also buy billions in call options to take advantage of illiquid markets and gamma, and sure enough all the “SoftBank stocks” exploded to all time highs, and in the process dragged the entire market higher.

Going back to the FT’s confirmation of our original report, it quotes another anonumous “person familiar with SoftBank’s trades” who said it was “gobbling up” options on a scale that was even making some people within the organisation nervous.

“People are caught with their pants down, massively short. This can continue. The whale is still hungry.”

Or not, because if SoftBank “forgot” to take profits and has been piling on gamma, it is now entirely at the dealers’ mercy as we first explained yesterday, which incidentally explains today’s continued plunge in tech names as traders brace for the unwind of all that gamma.

Of course, that’s the last thing SoftBank – which already is hurting from the dismal performance of so many of its recent investments – wants, and is why a banker “familiar with the latest options trading activity” told the FT that Thursday’s market pullback would have been painful for SoftBank (well, duh), and “he expected the buying to resume” unless of course the dealers double down and sell all those same calls that exploded in recent days. The FT then added, perhaps for the benefit of its Robinhood readers that “a larger and longer-lasting stock-market decline would be more damaging for this strategy, and would probably involve rapid declines.”

While there was nothing actually new in the FT report beside merely confirming what our readers already knew, all we can say is that we sincerely hope that Masa Son publishes all his material derivative holdings so the public can take the other side and finally crush this grotesque company which last October we said was the “Bubble Era’s “Short Of The Century.”

Meanwhile, for those wondering just how far from the Minsky Moment we are, it appears that Japanese pensioners – who are the 4th largest holder of SoftBank – are now indirectly buying deep OTM Apple and Tesla calls:

One final point: while there is an amusing feud brewing between the FT and the WSJ about who broke the SoftBank story (spoiler alert: neither)…

… the real question is which media publication will refuse to touch on the next part of this story, and where the rabbit hole really goes: namely the frontrunning of call options by certain HFTs who clearly magnified the gamma effect sparked artificially by SoftBank.

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‘Limited, Arbitrary, and Unsystematic:’ Flawed Federal Dietary Report Targets Alcohol

mugobeer

Critics are lining up to blast a report, issued by a federal committee earlier this summer, that urges the government to make steep cuts to the definition of moderate alcohol consumption. These critics are concerned because the group—the Dietary Guidelines Advisory Committee (DGAC), a rotating crop of experts that meets every five years—is the government’s primary vehicle for recommending updates to the nation’s dietary policies.

The DGAC, which was established in 1990, “provide[s] the basis for federal food and nutrition policy and education initiatives.” Those policies include everything from recommending how many servings of vegetables people should consume in a day to determining what foods to serve to troops, schoolchildren, and prisoners. Now that the DGAC has issued its final report, key federal agencies will review and consider its recommendations, along with public comments, before adopting formal guidelines. Alcohol is one area where the DGAC recommendations are stirring the most controversy.

The report argues in favor of “reducing consumption among those who drink… in ways that increase the risk of harms.” That sounds eminently reasonable, until you learn the DGAC decided, despite ample evidence to the contrary, that drinking “in ways that increase the risk of harms” means enjoying a second Bud Light.

Indeed, the report seeks to halve the DGAC’s longstanding definition of moderate drinking for men—no more than two drinks per day—to no more than one drink per day. (The recommendation for women, set for years at no more than one drink per day, remains unchanged.)

The proposed change to the alcohol-consumption recommendation is angering everyone from bourbon aficionados to the beer lobbies and wine connoisseurs, who—and this is probably an understatement—are “not happy with the report.” But top medical doctors and public health experts, along with lawmakers, are also raising objections.

Last month, five Harvard Medical School faculty doctors—including three who served on one or more prior iterations of the DGAC—submitted comments that are highly critical of the 2020 DGAC report. They argue the push to slash the maximum daily alcohol consumption for men is a “limited, arbitrary, and unsystematic treatment of alcohol consumption” that is based on “limited, arbitrary, and unsystematic evidence.”

While rightly noting the dangers of binge drinking and consistent heavy alcohol consumption in their comments, the Harvard doctors note the DGAC appears to have “ignored” three decades of research, drinking patterns, and “relevant recent evidence.” They also argue the recommendations demonstrate “scientific inconsistency” and an “arbitrary” and biased selection of research. “These arbitrary selections all appear intended to support claims made by members of the DGAC prior to appointment, rather than as systematic and transparent reviews of existing scientific evidence.” In other words, the researchers claim anti-alcohol DGAC members focused only on research that supports arguments those members wanted to make all along.

Wesley Clark, a lawyer, professor, and medical doctor who is also the former director of the U.S. government’s Center for Substance Abuse Treatment, argued in comments he submitted that the DGAC’s “over-reaching” changes to the alcohol recommendations appear to result from “biased analysis” and might be “a sleight-of-hand vehicle for Prohibition.

Other leading experts are also alarmed.

“There were very serious violations of scientific protocol regarding this proposal that need careful review,” said Sam Zakhari, Ph.D., chief scientific advisor with the Distilled Spirits Council and a former senior staffer with the National Institute on Alcohol Abuse & Alcoholism, in a statement emailed to me this week. “The committee acknowledged only one study examined differences in risk amongst men consuming two drinks per day as compared to one drink per day, which does not represent the preponderance of the evidence. Further, the committee members cited numerous studies that were outside of the 60 approved studies for review. It doesn’t take a scientist to see that the process was seriously flawed and that this proposal appears to be based on preconceived opinions, not science.” 

Many lawmakers in Washington aren’t happy with the recommendations, either. A joint, bi-partisan group of more than two-dozen members of Congress submitted comments opposing the DGAC’s dry-ish recommendations. Their comments single out a “lack of scientific evidence to justify any change in current moderate drinking recommendations.”

This DGAC controversy does not surprise me. Indeed, it’s no stretch at all to argue that the DGAC is best known—in recent years, at least—for its controversial recommendations. In 2015, I blasted the DGAC report for proposing new food taxes, pushing for restrictions on food marketing, and suggesting local food bans. In a separate column that same year, I spoke with a university researcher whose analyses, published in the esteemed, peer-reviewed Mayo Clinic Proceedings, suggests, as I explained, “that the DGAC’s work—and the research used to support that work—is so off base as to be scientifically useless.” I also detail major shortcomings with the 2015 DGAC’s recommendations around sustainability in my book, Biting the Hands that Feed Us.

The 2020 report isn’t all bad. For example, unlike in the 2015 report, I didn’t find any mentions of food taxes or bans in the 2020 report.

Thankfully, the DGAC report contains recommendations, meaning key federal agencies ultimately choose together whether or not to adopt those recommendations. On alcohol at least, the weight of the evidence suggests the federal government should reject the DGAC’s deeply flawed recommendations.

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‘Limited, Arbitrary, and Unsystematic:’ Flawed Federal Dietary Report Targets Alcohol

mugobeer

Critics are lining up to blast a report, issued by a federal committee earlier this summer, that urges the government to make steep cuts to the definition of moderate alcohol consumption. These critics are concerned because the group—the Dietary Guidelines Advisory Committee (DGAC), a rotating crop of experts that meets every five years—is the government’s primary vehicle for recommending updates to the nation’s dietary policies.

The DGAC, which was established in 1990, “provide[s] the basis for federal food and nutrition policy and education initiatives.” Those policies include everything from recommending how many servings of vegetables people should consume in a day to determining what foods to serve to troops, schoolchildren, and prisoners. Now that the DGAC has issued its final report, key federal agencies will review and consider its recommendations, along with public comments, before adopting formal guidelines. Alcohol is one area where the DGAC recommendations are stirring the most controversy.

The report argues in favor of “reducing consumption among those who drink… in ways that increase the risk of harms.” That sounds eminently reasonable, until you learn the DGAC decided, despite ample evidence to the contrary, that drinking “in ways that increase the risk of harms” means enjoying a second Bud Light.

Indeed, the report seeks to halve the DGAC’s longstanding definition of moderate drinking for men—no more than two drinks per day—to no more than one drink per day. (The recommendation for women, set for years at no more than one drink per day, remains unchanged.)

The proposed change to the alcohol-consumption recommendation is angering everyone from bourbon aficionados to the beer lobbies and wine connoisseurs, who—and this is probably an understatement—are “not happy with the report.” But top medical doctors and public health experts, along with lawmakers, are also raising objections.

Last month, five Harvard Medical School faculty doctors—including three who served on one or more prior iterations of the DGAC—submitted comments that are highly critical of the 2020 DGAC report. They argue the push to slash the maximum daily alcohol consumption for men is a “limited, arbitrary, and unsystematic treatment of alcohol consumption” that is based on “limited, arbitrary, and unsystematic evidence.”

While rightly noting the dangers of binge drinking and consistent heavy alcohol consumption in their comments, the Harvard doctors note the DGAC appears to have “ignored” three decades of research, drinking patterns, and “relevant recent evidence.” They also argue the recommendations demonstrate “scientific inconsistency” and an “arbitrary” and biased selection of research. “These arbitrary selections all appear intended to support claims made by members of the DGAC prior to appointment, rather than as systematic and transparent reviews of existing scientific evidence.” In other words, the researchers claim anti-alcohol DGAC members focused only on research that supports arguments those members wanted to make all along.

Wesley Clark, a lawyer, professor, and medical doctor who is also the former director of the U.S. government’s Center for Substance Abuse Treatment, argued in comments he submitted that the DGAC’s “over-reaching” changes to the alcohol recommendations appear to result from “biased analysis” and might be “a sleight-of-hand vehicle for Prohibition.

Other leading experts are also alarmed.

“There were very serious violations of scientific protocol regarding this proposal that need careful review,” said Sam Zakhari, Ph.D., chief scientific advisor with the Distilled Spirits Council and a former senior staffer with the National Institute on Alcohol Abuse & Alcoholism, in a statement emailed to me this week. “The committee acknowledged only one study examined differences in risk amongst men consuming two drinks per day as compared to one drink per day, which does not represent the preponderance of the evidence. Further, the committee members cited numerous studies that were outside of the 60 approved studies for review. It doesn’t take a scientist to see that the process was seriously flawed and that this proposal appears to be based on preconceived opinions, not science.” 

Many lawmakers in Washington aren’t happy with the recommendations, either. A joint, bi-partisan group of more than two-dozen members of Congress submitted comments opposing the DGAC’s dry-ish recommendations. Their comments single out a “lack of scientific evidence to justify any change in current moderate drinking recommendations.”

This DGAC controversy does not surprise me. Indeed, it’s no stretch at all to argue that the DGAC is best known—in recent years, at least—for its controversial recommendations. In 2015, I blasted the DGAC report for proposing new food taxes, pushing for restrictions on food marketing, and suggesting local food bans. In a separate column that same year, I spoke with a university researcher whose analyses, published in the esteemed, peer-reviewed Mayo Clinic Proceedings, suggests, as I explained, “that the DGAC’s work—and the research used to support that work—is so off base as to be scientifically useless.” I also detail major shortcomings with the 2015 DGAC’s recommendations around sustainability in my book, Biting the Hands that Feed Us.

The 2020 report isn’t all bad. For example, unlike in the 2015 report, I didn’t find any mentions of food taxes or bans in the 2020 report.

Thankfully, the DGAC report contains recommendations, meaning key federal agencies ultimately choose together whether or not to adopt those recommendations. On alcohol at least, the weight of the evidence suggests the federal government should reject the DGAC’s deeply flawed recommendations.

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Europeans Discover The Myth About ‘Safety Nets’ The Hard Way

Europeans Discover The Myth About ‘Safety Nets’ The Hard Way

Tyler Durden

Sat, 09/05/2020 – 08:10

Authored by John Tamny via RealClearMarkets.com,

Economic discussions would be much better if it were understood that no one receives dollar, euro, yen, pound or yuan “aid.” They receive the goods that those currencies can be exchanged for. Money on its own doesn’t feed, shelter or clothe. It’s only useful insofar as it’s accepted by the producers of actual goods and services.

This simple truth is hopefully useful as a backdrop to what’s happening in Europe right now.

As Liz Alderman of the New York Times reported on Tuesday, Europeans are presently suffering rather painful job cuts. In Alderman’s words, “At BP, 10,000 jobs. At Lufthansa, 22,000. At Renault, 14,600.”

To the half awake in our midst, what’s happening is a statement of the obvious. Some of the most stringent lockdowns related to the coronavirus happened in Europe. The shutdowns in France were the strictest, including limits on simply leaving one’s home. The virus spread despite them, but so did economic contraction.

That contraction spread was a blinding glimpse of the obvious. Lockdowns by their very name limit activity, including that related to work. With Europeans suddenly experiencing reduced personal and economic mobility, production was naturally going to decline.

All that, plus the only closed economy is the world economy. A not insubstantial portion of Europe’s economic vitality is a consequence of production elsewhere. Translated, tourism looms large on a continent that increasingly limited the inflow of tourists. European goods of the car and clothes variety similarly enchant the world’s citizenry, but with global demand a consequence of supplying first, it’s no insight to say that Europe’s countries suffered economically the lockdowns that took place far from Europe.

But wait, some will say, Europe has a “safety net.” Its countries are led by enlightened types who place a cushion under the economically displaced. Don’t readers remember all the fawning reports from Europe in April and May? It was said then that Europeans believe in science (hence the lockdowns), and their belief in science positioned governments to shut things down sans protest. The latter was muted because those same enlightened governments subsidized corporate maintenance of jobs that were rendered rather redundant by a major decline in economic activity.

Europe got it right was the view. Its people stayed home in order to keep the virus at bay (except for where this didn’t work very well – think France once again….), plus they kept their jobs.

Except that they didn’t. Whether public or private, corporations aren’t charities. Eventually they were going to run out of the funds to prop up the alarmism of enlightened European leaders and citizens.

This happened precisely because European governments ran out of money. Or there were limits to their subsidizing the impossible whereby in the words of Alderman,

“European countries ordered businesses to shutter and employees to stay home,” only for the governments in those countries to “shield workers from the prospect of mass joblessness, extending billions to businesses to keep people employed.”

What’s that Thatcher said about socialists, that eventually they run out of other people’s money?

The above truth would be easier to understand if it were better understood that money itself once again isn’t wealth. Money merely moves actual wealth around. European governments couldn’t continue to subsidize idle workers simply because an ability to not work is – gasp – a consequence of production. Get it?

Governments don’t or can’t just pull money from the sky no matter how many times the central-bank obsessed claim they can. In truth, governments can only subsidize a lack of work insofar as others are working in prodigious fashion. Translating what really doesn’t require translation, there’s no such thing as government spending. What’s real is that governments can give out access to food, clothing and shelter only insofar as they can arrogate to themselves a piece of the actual production in an economy.

Europe’s governments were never generous as much as the productive in Europe were long willing to be fleeced to varying degrees so that politicians would handle the dirty work of clothing, feeding and sheltering those who lacked the means to do for themselves. Major social welfare programs are never where there’s there little production, and ubiquitous to varying degrees where there’s lots of it.

What’s happening now is that Europeans are unwittingly happening on the basic truth that Say’s Law is real. Consumption is what happens after production. By definition. Wouldn’t so many love to be free to consume without the toil that enables it? Yes, all too many of us would love to be heirs.

Of course, too easily forgotten is that heirs are able to consume with abandon precisely because those who came before them produced with abandon. Consumption is a consequence, not a driver of economic growth.

Which is why Europeans are now being forced to face up to a cruel reality. No country or continent ever consumed its way to prosperity. Consumption is the reward after the production.

Oh well, European politicians sidelined the continent’s producers only to hand them euros, pounds and francs so that they could continue consuming. It’s sustainable for a while, but if much of a continent and much of the world isn’t producing, eventually the producers of the wealth that enable the handouts are going to be confronted with their own reality. The latter is one that says no business will remain as one if those in its employ are idled. As for governments, they once again can only subsidize a lack of toil insofar as people are toiling.

This collision of reality brought Europe to a logical conclusion. The money that is a consequence of production, and that only has value where there’s production, plainly ran out. Hence the layoffs.

Crucial is that government can’t reverse this bit of reality. Only private production can. Which brings us back to what’s simple and easy: if countries want their economies revived, they must end the restrictions that are limiting the private production without which governments have nothing to hand out.

via ZeroHedge News https://ift.tt/3btRRhH Tyler Durden

Mini-Reactors To Complement Renewables For Carbon-Free Electricity Era 

Mini-Reactors To Complement Renewables For Carbon-Free Electricity Era 

Tyler Durden

Sat, 09/05/2020 – 07:35

Perhaps the time is right for a new wave of nuclear reactors, ones that are smaller than traditional nuclear power plants for several reasons:

  • First, mini-nuclear reactors could compete with green energy with hopes of reducing CO2 emissions by 2050.

  • Second, traditional nuclear power plants are aging, and construction is plagued with delays and substantial cost overruns. 

Attention surrounding mini-reactors spiked in late Aug. following Bill Gates’ nuclear energy venture, TerraPower LLC., is set to develop miniature nuclear power stations. 

Gates founded the firm more than a decade ago, is set to build commercial advanced nuclear energy plants called “Natrium” in the U.S. later in the decade. 

Future demand from nuclear power is likely to come from plants that are more than 90% smaller than traditional nuclear plants that could revive the stalled industry following Three Mile Island, Chernobyl, and Fukushima nuclear accidents. 

Bloomberg reports, there are three other companies NuScale Power LLC. in the U.S., China National Nuclear Corp., and Russia’s Rosatom, are all developing mini-reactors that could one day offer an affordable solution to produce carbon-free electricity without monstrous plants.

As renewable energy supplies increase and governments reduce reliance on fossil fuel-derived energy to power grids, mini-nuclear reactors will likely complement solar and wind in the future. 

California’s rolling blackouts earlier this month are the latest example of grid failure, powered by renewables and fossil fuels, an unreliable combination for sustainable and clean power. 

Advocates for nuclear power say a renewables-only dominated grid is unlikely because of power fluctuations must be blended with mini-reactors. 

“At least for now, and for the foreseeable future, it’s difficult to see a renewables-only energy system,” said Chris Colbert, chief strategy officer at Portland, Oregon-based NuScale.

A cross-section illustration of a NuScale Power reactor building. h/t NuScale Power, Bloomberg

Developers of mini-reactors say plants will be smaller, and the possibility of a massive radiation leak is unlikely. But Edwin Lyman, director of nuclear power safety at the Union of Concerned Scientists, said smaller reactors have weaker systems to prevent a leak. 

An artist’s rendering of NuScale Power’s small modular nuclear reactor plant. h/t NuScale Power

Lyman said this is concerning because some of these smaller reactors are expected to be built around populated areas. 

“You could have a smaller reactor but weaker containment and less distance to population centers,” he said. “Paradoxically, a small reactor could end up releasing more material than a large reactor.”

Besides the risk of a radiation accident, smaller plants could lift the overall industry from a ten-year pause in the construction of convention plants. Blending power grids with renewables and mini reactors appear to be the future as countries march towards carbon-free electricity.

via ZeroHedge News https://ift.tt/359a0A8 Tyler Durden

Standing At A Crossroads

Standing At A Crossroads

Tyler Durden

Sat, 09/05/2020 – 07:00

Authored by Claudio Grass,

The more we gained knowledge of these new totalitarian systems of mass-rule, the more we realized not only their similarity of structure, but also the fact that we had to do with a type of dominance that had been known in earlier epochs. We discovered that what the ancients called “tyrannis,” or ‘cheirokratia,” what Sulla or the tyrants of the Italian Rennaissance had practised, and what finally alarmed the world in the French Revolution and under Napoleon, had surprisingly many similarities with modern totalitarianism, although this latter had elements with which they cannot be compared, and although it possessed means of domination unknown in past ages.

– Willhelm Röpke

This is an old quote I very much admire, it is as relevant today as it was in the past. History does not repeat but it does rhyme. Therefore, I believe it is fair to say that the world has already changed tremendously over the past few months in an irreversible way. The current central planners are already promoting the future reality they have in store for us – to let the old economy and system crash and prepare for government-controlled and planned transition into a new economy that is “green and emission-free”. The new Modern Monetary Theory (MMT) is ready to finance this “man-made paradise” that we have analyzed in detail in the previous two issues of this magazine. The digitalization shift that occurred over the last 20 years also massively contributes and accelerates this process. 

Of course, this technology, like any other, can be used for good or evil, for decentralization and increased independence, or for the concentration of power in the hands of the few and for the exertion of control over everyone else.  The government naturally prefers the latter, as it recognized its practical value. We see real-life implementations of this more and more over the last few years. The establishments and promotion of “anointed experts”, who practice the art of divination while playing God and making decisions “for the greater good”, will inevitably lead to a relentless technocratic system of governance, if it hasn’t already, where individuals as treated as units, to be counted and to be tallied, in a vain attempt to forcefully balance a meaningless equation. 

In the end, and this must be clear by now, this path leads to the full-scale nationalization of the private economy, to a system without private property rights and without individual liberty. The political measures in connection with the Corona crisis have already served as a preview to that bleak future. They also highlighted that the greatest losers in that system are the poorest, the weakest and the most marginalized among us, as low-income workers and small business owners were the hardest hit by the lockdowns and the shutdowns and they’ll be the last to recover, if they recover at all, which seems increasingly unlikely. 

The only way out 

Ludwig von Mises said it best, decades ago: 

“The market system is the basis of our civilization. Its only alternative is the Führer principle.”

People today have to decide for themselves if they want to remain in a system were central planners will be in full control or if they want to opt-out. There are many ways one can do that, depending on their circumstances.  It can be as simple as using private money and decentralized technologies to regain personal sovereignty, privacy and control, or it can be done through jurisdictional diversification of one’s assets and wealth or even by relocating to areas with like-minded people. At the end of the day, we always have a choice. If people want to live in a system that espouses the virtues of socialism and if they like having to sing the international anthem every morning, they can. Whoever likes the sound of that can join, whoever doesn’t can move to a different town, that embraces different ideas and values. 

Let the competition begin, by moving away from a centralized government and allowing people to have options. Allow ideas to freely compete with each other, without forcing anyone to live under a system they don’t like. This would be the crucial first step in the right direction and I personally expect that we are about to take it. I believe we’re at a historical turning point, at the beginning of a shift that will eventually inspire and enable people to organize everything on a much smaller scale, to gather together on the level of small towns and municipalities and to form their own social and political systems, based on the principles that all the people on the local level consent to.

This brings me to the antidote to the current monetary system and all its toxic effects. Physical precious metals, in particular gold and silver, are the insurance against all the arbitrary experiments and monetary manipulation of the last decades. They can’t be printed and controlled by central banks and they cannot be used to support and transmit any of their political goals and agendas. This is why I expect physical precious metals to play a key role in the foundations of any truly free society. Without the financial shackles of fiat money, direct control can be reclaimed and reasserted by the individual. 

The rational aspect of owning physical precious metals

John Maynard Keynes turned the world upside down with his argument that saving is not the lifeblood of investments; instead, he argued, it is a burden for the economy. His opinion was that wise and all-knowing central planners (in other words, a pseudo-benevolent politburo) could correct macro-economic imbalances by manipulating market signals. The implication of such a system, wholly congruent with Marx’s fifth “commandment”, is that it enables a massive centralization of power. However, as is taught (or should be taught) in every political science 101 class: power corrupts, and absolute power corrupts absolutely! 

This central planning precept furthermore contradicts not only common sense and trivial observation, but also the full historical record: indeed, the driving force behind economic health are savings, financial prudence and investment; not reckless spending, mindless consumption, and debt.

In the same way that nihilism is a self-refuting ideology (if existence is meaningless, being the prophet of that meaninglessness is a proof against it), the Keynesian school (and its neoclassical successor) is contradicted by reductio ad absurdum: if all that matters is debt, then let’s all stop working, let’s only print paper, and we’ll solve world hunger!

The problem is exacerbated by the fact that paper money used to be a property title, but has become a debt security. These IOUs represent the promise that future generations will pay off their predecessors’ debt via taxes and inflation. In such an environment, the populace is automatically divided between winners and losers: the former being those close enough to the monetary spigot, the latter everyone else. Moral hazard becomes the rule of the game; merit and talent die with it. It is a fraud of gigantic proportions.

Gold and silver should not be seen as a trading vehicle, but rather as an insurance in a highly uncertain world, a protection against the insanity of central planners, and a safety net against a possible forthcoming crash of the monetary and financial order.

Although it is impossible to determine how fast it will happen, it should be obvious by now that the coming months, especially in the western world, will be dominated by a declining real economy, higher unemployment rates, financial repression measures, such as higher taxation and government restrictions. Interest rates, which are kept artificially low, are causing low or even negative real return on investments. In such an environment, gold is a high-yield asset!

Direct and unencumbered physical ownership of precious metals stored outside of the banking system is therefore essential, if you are interested in a real and practical insurance against the ongoing problems in our monetary system and the uncertainties in our world today.

The case for Switzerland

As a Swiss citizen, I can directly attest to the unique features and advantages of a nation that is defined by its own people’s will, having taken an oath not to pay taxes to foreign reeves. Even before the enforced confederation of 1848, Switzerland was the most industrialized country on mainland Europe. The economy was everywhere and politics nowhere. Even under intense external pressures, Switzerland retained its sovereignty and remained an armed neutral country, resisting two world wars, with a track record that it can be proud of. Up to this day, it still has one of the most decentralized political structures in the world. Its constitution outlines the basis of its political system and its government’s limits, according to the principles of subsidiarity and direct democracy. 

Instruments such as referendums “against the state” and initiatives “from the people” help to keep the state in check and the country as decentralized as possible. And although the last 20 years have seen political pressure put on Switzerland to follow the way paved by the EU rather than its own, a culture of trust, free speech, limited government and respect for private property remains more solid than in most countries on this planet. In other words, the Swiss still understand that the government cannot give away what it has stolen from someone else.

In terms of stability and security, especially from a physical gold investor’s point of view, it is clear that Switzerland has withstood the test of time. Its long-standing neutrality position, its solid non-interventionist foreign policy record and the fact that more than 50% of households in the country are armed, create a safe environment and provide peace of mind both for its citizens and for investors. Furthermore, the strict limits placed on its government’s powers and the long track record of the government staying well within those limits, make confiscation scenarios of precious metals stored under Swiss law very improbable. 

However, because you can never be sure of what the future holds, it always makes sense to look at other jurisdictions too, which might also offer a solid basis. Unfortunately, not many are left on this planet, but the Principality of Liechtenstein is a great candidate. 

Liechtenstein’s unique advantages 

The Principality of Liechtenstein is not in the EU; it is however a member of the European Economic Area and the Schengen visa zone. Although it became independent in 1806, it can be argued that the values exhibited by today’s Liechtenstein were mostly formed after WWII. It was then that today’s monarch, Hans-Adam, had to take over a bankrupt country and effectively managed to turn it into a highly competitive, innovative and agile financial hub of international renown. Liechtenstein is led by one of the oldest noble families in European history and its roots go back into the eleventh century. They have a long-established history as advisers, especially during the Habsburg Monarchy. 

The country’s standing as a reliable business and banking center and the princely house’s reputation as being ahead of the curve are still undeniable today. For example, Liechtenstein and members of the princely family have established the Center for Austrian Economics under the guidance of H.S.H. Prince Michael of Liechtenstein and H.S.H. Prince Philipp of Liechtenstein. Therefore, it is fair to say that the ruling figures of Liechtenstein fully embrace the values of individual and financial freedom and recognize the importance of private property rights. 

The system of government is classified as a constitutional monarchy, with the decision-making power being shared by the monarch and the democratically elected parliament. The Prince retains significant political power, as head of state, and also has veto power. Hans-Adam himself wrote the political treatise “The State in the Third Millennium” in 2009, in which he promotes sound money in the form of gold and silver. In it, he also defends the right of secession right down to the level of the municipality and he is a fierce proponent of limited government, free trade and free speech.

Overall, Liechtenstein remains a solid jurisdiction. It is built on a system of governance that shows great restraint and respect towards individual freedoms, private property, the right to privacy and the financial sovereignty of its people. From a military aspect, Liechtenstein is protected by the Swiss military and has strong ties with Switzerland in general, even though it remains independent when it comes to local laws and international policy. 

Weighing the options 

Both jurisdictions make a convincing case for gold storage, with regard to stability and private property rights, which is infinitely strengthened when compared to the risks and uncertainties that what most other jurisdictions entail. Even from a more practical perspective, it also makes sense to store gold in jurisdictions with ready access to active commercial gold markets, that are not bank-based, as for example is the case for London. Switzerland is a global leader and hub of gold refining and has extensive and vibrant bullion commercial activity. 

Overall, when selecting a location to store parts of your wealth in physical precious metals, one has to look carefully at the political system, as well as the government’s track record through thick and thin. It is also important to consider the country’s “gold culture” and relevant tradition, as in nations with a long history of widespread private gold ownership, governments face formidable obstacles and serious opposition against aggressive legislation, like ownership restrictions, seizures or confiscation orders targeting precious metals. Thus, overall, Switzerland and Liechtenstein definitely seem to have an advantage, at this point in time.

via ZeroHedge News https://ift.tt/2Z7skG2 Tyler Durden

Abolish Qualified Immunity

abolishqualifiedimmunity

In this month’s issue, we draw on decades of Reason journalism about policing and criminal justice to make practical suggestions about how to use the momentum of this summer’s tumultuous protests productively. Check out Peter Suderman on busting the police unions, Jacob Sullum on ending the war on drugs, Sally Satel on rethinking crisis response, Zuri Davis on restricting asset forfeiture, C.J. Ciaramella on regulating use of force, Alec Ward on releasing body cam footage, Jonathan Blanks on stopping overpolicing, Stephen Davies on defunding the police, and Nick Gillespie interviewing former Reasoner Radley Balko on police militarization.

“As it stands in America today, the police aid in the trampling of rights on such a massive scale that there is hardly a word sufficiently descriptive. Limited liability? The price of retribution due to the victims of the crimes committed by police on any single day would be beyond calculation, yet not only do these crimes go undenounced (for the most part), and the perpetrators, police and politicians, unpunished, but, even worse, the victims are forced through taxes to finance the operation and salaries of the criminals.”
Lanny Friedlander
“The Cops: Heroes or Villains?”
November 1969

In December 2017, the U.S. Court of Appeals for the 6th Circuit ruled that a former Ferndale, Michigan, police officer named Lowell Phillips violated the Constitution when he shot and killed a fleeing suspect. Laszlo Latits “showed a persistent intent to flee but not an intent to injure, and never placed the public or the officers at imminent risk,” the court observed of the incident, which began with a traffic stop over a wrong-way turn onto a divided boulevard and ended four minutes later with Latits dead of multiple gunshot wounds to the chest and abdomen.

Phillips not only “repeatedly violated police procedures in both ramming Latits and running up to his car,” the 6th Circuit noted, but Phillips was ultimately fired by the Ferndale police department for that misconduct. “Considering the totality of the circumstances,” the appeals court noted, “we conclude that Officer Phillips’s use of deadly force was objectively unreasonable and in violation of Latits’s constitutional rights.”

But then the 6th Circuit switched gears and shielded the disgraced ex-cop from facing a federal civil rights lawsuit filed by the dead man’s family. “Caselaw existing at the time of the events,” the court said, “did not clearly establish the objective unreasonableness of Phillips’s actions in the circumstances of this case.”

Welcome to the bizarro world of qualified immunity, a place where the federal courts will acknowledge that a police officer violated the Constitution but then deem the officer not civilly liable for his unconstitutional actions because there was no prior court decision explicitly frowning on the same behavior.

According to the U.S. Supreme Court’s 1982 decision in Harlow v. Fitzgerald, state actors are entitled to immunity from civil suits arising from their official conduct so long as the conduct that they’re being sued over “does not violate clearly established statutory or constitutional rights.” But as 5th Circuit Judge Don Willett, a leading critic of the Court’s qualified immunity doctrine, has complained, what that means in practice is that “public officials [may] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

Something has gone seriously wrong in our criminal justice system when the federal courts are running this kind of interference on behalf of blatantly unconstitutional police actions. What happened?

‘Shall Be Liable’

The story begins in 1871. In the aftermath of the Civil War, numerous state and local officials throughout the former Confederacy turned a blind eye (or worse) to the racist domestic terrorism perpetrated by the Ku Klux Klan and other groups. Congress responded to this dire state of affairs by enacting a series of so-called enforcement acts, each one rooted in Section 5 of the recently ratified 14th Amendment, which gave federal lawmakers the power “to enforce, by appropriate legislation, the provisions of this article.” Among the provisions of the 14th Amendment was the requirement that states respect the constitutional rights of U.S. citizens.

Perhaps the most forceful of the enforcement acts was the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. Among other things, it sought to hold state officials personally liable for the widespread civil rights violations that were occurring on their watch. It did so in part by declaring that “any person who, under color of any law, statute, ordinance, regulation, custom or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States shall…be liable to the party injured in any action at law, suit in equity, or other proper proceedings for redress.”

“If the Federal Government cannot pass laws to protect the rights, liberty, and lives of citizens of the United States in the States,” declared the bill’s principal author, Massachusetts Rep. Benjamin F. Butler, a radical Republican and former Union major general, “why were guarantees of those fundamental rights put in the Constitution at all?”

Butler’s handiwork lives on today in modified form in Section 1983 of Title 42 of the U.S. Code, more commonly known as Section 1983. It features language almost identical to the Ku Klux Klan Act.

Guess what the law does not say? “Neither version of the text, you will notice if you wade through them,” University of Chicago law professor William Baude has observed, “makes any reference to immunity.” That part came later, when the U.S. Supreme Court invented qualified immunity for cops in the mid-20th century.

‘Clearly Established’

It’s common to think of Chief Justice Earl Warren as one of the towering figures of legal liberalism, a jurist whose record is practically synonymous with what progressives like to call social justice. In the approving words of The Oxford Companion to the Supreme Court of the United States, “Whether one looks at the Court’s record in matters of free speech, separation of church and state, apportionment, racial discrimination, or criminal procedure, Warren and his Court essentially asked the same questions: Is this fair?”

Alas, fair is not exactly the word anyone would choose to describe what happened in Pierson v. Ray (1967), the case in which Chief Justice Warren more or less concocted the idea of qualified immunity for cops. At issue was the 1961 arrest of the Rev. Robert Pierson and several other civil rights activists for entering the “Whites Only” facilities at a segregated bus stop in Jackson, Mississippi. In 1965, in a different case, the Supreme Court ruled against the anti-loitering law those activists were arrested for violating. Two years later, the Court weighed a lawsuit, filed by Pierson and his allies under Section 1983, against the local authorities who wrongfully shackled and jailed them.

Writing for the majority, Warren safeguarded the Mississippi cops from the lawsuit. At common law, he argued, “a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” The chief justice then grafted that reasoning onto Section 1983.

“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does,” Warren declared. “Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional.”

Fifteen years later, the Court doubled down in Harlow v. Fitzgerald. “Government officials are entitled to some form of immunity from suits for damages,” the Court said. “Public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.” So long as government officials acting under color of law do “not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” the Court held, those officials “generally are shielded from liability for civil damages.”

‘An Absolute Shield for Law Enforcement’

The problems with qualified immunity are self-evident. Not only does the doctrine shield rights-violating officers from facing federal civil rights lawsuits, but it incentivizes police departments (which are also shielded from liability) to retain bad cops on the payroll. In effect, qualified immunity functions as an anti-accountability measure.

What can be done? There are two possible fixes. The first is for the Supreme Court to reverse or modify its misguided precedents.

At least two justices may be ready to do just that. The Court’s “one-sided approach to qualified immunity,” objected Justice Sonia Sotomayor in Kisela v. Hughes (2018), “transforms the doctrine into an absolute shield for law enforcement, gutting the deterrent effect of the Fourth Amendment.” To make matters worse, “it tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Justice Clarence Thomas, meanwhile, has suggested that the doctrine itself might be unlawful. In Ziglar v. Abbasi (2016), Thomas wrote a lone concurrence “to note my growing concern with our qualified immunity jurisprudence” and to urge the Court to “reconsider” that jurisprudence “in an appropriate case.”

Earlier this year, when the Court declined to hear Baxter v. Bracey, a case involving the grant of qualified immunity to officers who allegedly unleashed a police dog on a surrendering suspect, Thomas blasted his colleagues for refusing to get involved.

Section 1983 “ma[kes] no mention of defenses or immunities,” Thomas pointed out in his dissent. “Instead, it applies categorically to the deprivation of constitutional rights under color of state law.” In other words, the judicially invented doctrine does not match the text enacted by Congress. “There is likely no [legal] basis for the objective inquiry into clearly established law that our modern cases prescribe,” he wrote. “I continue to have strong doubts about our [Section] 1983 qualified immunity doctrine.”

The other fix requires action from Congress and the signature of the president. Because this doctrine arose via the judicial interpretation of a federal law, federal lawmakers need only pass a new statute to expressly repudiate what SCOTUS has done.

That approach is slowly gaining adherents. “Qualified immunity protects police and other officials from consequences even for horrific rights abuses,” observed Rep. Justin Amash (L–Mich.) when he introduced the Ending Qualified Immunity Act in the House of Representatives in June. Amash’s bill had garnered 65 co-sponsors at the time this article went to press, though a majority of Senate Republicans have declared the idea dead on arrival.

The fight against police misconduct is fast emerging as one of the greatest civil rights issues of our time. Holding abusive officers civilly liable in federal court is a necessary and long-overdue part of that fight. One way or another, qualified immunity for cops deserves to be abolished.

 

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via IFTTT

Abolish Qualified Immunity

abolishqualifiedimmunity

In this month’s issue, we draw on decades of Reason journalism about policing and criminal justice to make practical suggestions about how to use the momentum of this summer’s tumultuous protests productively. Check out Peter Suderman on busting the police unions, Jacob Sullum on ending the war on drugs, Sally Satel on rethinking crisis response, Zuri Davis on restricting asset forfeiture, C.J. Ciaramella on regulating use of force, Alec Ward on releasing body cam footage, Jonathan Blanks on stopping overpolicing, Stephen Davies on defunding the police, and Nick Gillespie interviewing former Reasoner Radley Balko on police militarization.

“As it stands in America today, the police aid in the trampling of rights on such a massive scale that there is hardly a word sufficiently descriptive. Limited liability? The price of retribution due to the victims of the crimes committed by police on any single day would be beyond calculation, yet not only do these crimes go undenounced (for the most part), and the perpetrators, police and politicians, unpunished, but, even worse, the victims are forced through taxes to finance the operation and salaries of the criminals.”
Lanny Friedlander
“The Cops: Heroes or Villains?”
November 1969

In December 2017, the U.S. Court of Appeals for the 6th Circuit ruled that a former Ferndale, Michigan, police officer named Lowell Phillips violated the Constitution when he shot and killed a fleeing suspect. Laszlo Latits “showed a persistent intent to flee but not an intent to injure, and never placed the public or the officers at imminent risk,” the court observed of the incident, which began with a traffic stop over a wrong-way turn onto a divided boulevard and ended four minutes later with Latits dead of multiple gunshot wounds to the chest and abdomen.

Phillips not only “repeatedly violated police procedures in both ramming Latits and running up to his car,” the 6th Circuit noted, but Phillips was ultimately fired by the Ferndale police department for that misconduct. “Considering the totality of the circumstances,” the appeals court noted, “we conclude that Officer Phillips’s use of deadly force was objectively unreasonable and in violation of Latits’s constitutional rights.”

But then the 6th Circuit switched gears and shielded the disgraced ex-cop from facing a federal civil rights lawsuit filed by the dead man’s family. “Caselaw existing at the time of the events,” the court said, “did not clearly establish the objective unreasonableness of Phillips’s actions in the circumstances of this case.”

Welcome to the bizarro world of qualified immunity, a place where the federal courts will acknowledge that a police officer violated the Constitution but then deem the officer not civilly liable for his unconstitutional actions because there was no prior court decision explicitly frowning on the same behavior.

According to the U.S. Supreme Court’s 1982 decision in Harlow v. Fitzgerald, state actors are entitled to immunity from civil suits arising from their official conduct so long as the conduct that they’re being sued over “does not violate clearly established statutory or constitutional rights.” But as 5th Circuit Judge Don Willett, a leading critic of the Court’s qualified immunity doctrine, has complained, what that means in practice is that “public officials [may] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

Something has gone seriously wrong in our criminal justice system when the federal courts are running this kind of interference on behalf of blatantly unconstitutional police actions. What happened?

‘Shall Be Liable’

The story begins in 1871. In the aftermath of the Civil War, numerous state and local officials throughout the former Confederacy turned a blind eye (or worse) to the racist domestic terrorism perpetrated by the Ku Klux Klan and other groups. Congress responded to this dire state of affairs by enacting a series of so-called enforcement acts, each one rooted in Section 5 of the recently ratified 14th Amendment, which gave federal lawmakers the power “to enforce, by appropriate legislation, the provisions of this article.” Among the provisions of the 14th Amendment was the requirement that states respect the constitutional rights of U.S. citizens.

Perhaps the most forceful of the enforcement acts was the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. Among other things, it sought to hold state officials personally liable for the widespread civil rights violations that were occurring on their watch. It did so in part by declaring that “any person who, under color of any law, statute, ordinance, regulation, custom or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States shall…be liable to the party injured in any action at law, suit in equity, or other proper proceedings for redress.”

“If the Federal Government cannot pass laws to protect the rights, liberty, and lives of citizens of the United States in the States,” declared the bill’s principal author, Massachusetts Rep. Benjamin F. Butler, a radical Republican and former Union major general, “why were guarantees of those fundamental rights put in the Constitution at all?”

Butler’s handiwork lives on today in modified form in Section 1983 of Title 42 of the U.S. Code, more commonly known as Section 1983. It features language almost identical to the Ku Klux Klan Act.

Guess what the law does not say? “Neither version of the text, you will notice if you wade through them,” University of Chicago law professor William Baude has observed, “makes any reference to immunity.” That part came later, when the U.S. Supreme Court invented qualified immunity for cops in the mid-20th century.

‘Clearly Established’

It’s common to think of Chief Justice Earl Warren as one of the towering figures of legal liberalism, a jurist whose record is practically synonymous with what progressives like to call social justice. In the approving words of The Oxford Companion to the Supreme Court of the United States, “Whether one looks at the Court’s record in matters of free speech, separation of church and state, apportionment, racial discrimination, or criminal procedure, Warren and his Court essentially asked the same questions: Is this fair?”

Alas, fair is not exactly the word anyone would choose to describe what happened in Pierson v. Ray (1967), the case in which Chief Justice Warren more or less concocted the idea of qualified immunity for cops. At issue was the 1961 arrest of the Rev. Robert Pierson and several other civil rights activists for entering the “Whites Only” facilities at a segregated bus stop in Jackson, Mississippi. In 1965, in a different case, the Supreme Court ruled against the anti-loitering law those activists were arrested for violating. Two years later, the Court weighed a lawsuit, filed by Pierson and his allies under Section 1983, against the local authorities who wrongfully shackled and jailed them.

Writing for the majority, Warren safeguarded the Mississippi cops from the lawsuit. At common law, he argued, “a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” The chief justice then grafted that reasoning onto Section 1983.

“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does,” Warren declared. “Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional.”

Fifteen years later, the Court doubled down in Harlow v. Fitzgerald. “Government officials are entitled to some form of immunity from suits for damages,” the Court said. “Public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.” So long as government officials acting under color of law do “not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” the Court held, those officials “generally are shielded from liability for civil damages.”

‘An Absolute Shield for Law Enforcement’

The problems with qualified immunity are self-evident. Not only does the doctrine shield rights-violating officers from facing federal civil rights lawsuits, but it incentivizes police departments (which are also shielded from liability) to retain bad cops on the payroll. In effect, qualified immunity functions as an anti-accountability measure.

What can be done? There are two possible fixes. The first is for the Supreme Court to reverse or modify its misguided precedents.

At least two justices may be ready to do just that. The Court’s “one-sided approach to qualified immunity,” objected Justice Sonia Sotomayor in Kisela v. Hughes (2018), “transforms the doctrine into an absolute shield for law enforcement, gutting the deterrent effect of the Fourth Amendment.” To make matters worse, “it tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Justice Clarence Thomas, meanwhile, has suggested that the doctrine itself might be unlawful. In Ziglar v. Abbasi (2016), Thomas wrote a lone concurrence “to note my growing concern with our qualified immunity jurisprudence” and to urge the Court to “reconsider” that jurisprudence “in an appropriate case.”

Earlier this year, when the Court declined to hear Baxter v. Bracey, a case involving the grant of qualified immunity to officers who allegedly unleashed a police dog on a surrendering suspect, Thomas blasted his colleagues for refusing to get involved.

Section 1983 “ma[kes] no mention of defenses or immunities,” Thomas pointed out in his dissent. “Instead, it applies categorically to the deprivation of constitutional rights under color of state law.” In other words, the judicially invented doctrine does not match the text enacted by Congress. “There is likely no [legal] basis for the objective inquiry into clearly established law that our modern cases prescribe,” he wrote. “I continue to have strong doubts about our [Section] 1983 qualified immunity doctrine.”

The other fix requires action from Congress and the signature of the president. Because this doctrine arose via the judicial interpretation of a federal law, federal lawmakers need only pass a new statute to expressly repudiate what SCOTUS has done.

That approach is slowly gaining adherents. “Qualified immunity protects police and other officials from consequences even for horrific rights abuses,” observed Rep. Justin Amash (L–Mich.) when he introduced the Ending Qualified Immunity Act in the House of Representatives in June. Amash’s bill had garnered 65 co-sponsors at the time this article went to press, though a majority of Senate Republicans have declared the idea dead on arrival.

The fight against police misconduct is fast emerging as one of the greatest civil rights issues of our time. Holding abusive officers civilly liable in federal court is a necessary and long-overdue part of that fight. One way or another, qualified immunity for cops deserves to be abolished.

 

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via IFTTT