Inhuman Conditions

minisinhumanconditions

Inhuman Conditions is a new board game loosely based on the idea of the Turing test—a way to evaluate a machine’s ability to exhibit intelligent behavior, devised by codebreaker and mathematician Alan Turing in 1950.

In the game, one player is assigned the role of either robot or human. The other is an investigator attempting to figure out whether his or her opponent is a robot through conversation. The result is a surprisingly goofy romp in which humans pretend to be robots pretending to be humans.

As with many of the entrants in today’s tabletop gaming renaissance, making it to the initial round of play requires some upfront investment of time and brainpower. But once you get into the groove, the natural logic of the game’s structure emerges, and there are just enough gimmicks—including actual inked stamps with which the investigators make their final pronouncements—to keep play light.

The robots in the game are so quirky (and even violent) that a deadpan affect won’t do you much good. The best strategy to appear human, it seems, is to be emotionally volatile, deeply awkward, and occasionally irrational.

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18 Million Barrels Of Sanctioned Venezuelan Oil Are Stuck At Sea

18 Million Barrels Of Sanctioned Venezuelan Oil Are Stuck At Sea

Tyler Durden

Fri, 06/26/2020 – 05:00

Authored by Tsvetana Paraskova via OilPrice.com,

Oil tankers carrying at least 18.1 million barrels of Venezuelan oil are currently idling at sea across the world unable to find buyers – some for as long as six months – as many potential and previous customers of Venezuela’s crude are not taking chances with delivery for fear of incurring secondary U.S. sanctions.  

According to Reuters estimates based on shipping data, industry sources, and documents of Venezuela’s state oil firm PDVSA, at least 16 tankers are idling off the coasts of Africa and Southeast Asia because few potential buyers would risk U.S. sanctions for dealing with the regime of Nicolas Maduro.

The 18.1 million barrels of still unsold Venezuelan crude oil is equal to two months of the country’s production at its current rate, according to Reuters.

Over the past months, the U.S. Administration has increasingly stepped up its maximum pressure campaign on Venezuela and its oil industry and exports, seeking to cut off revenues for Maduro’s regime.

Earlier this year, the United States slapped sanctions on Rosneft’s Switzerland-based trading arm and signaled that it was ready to tighten even more the noose around the Venezuelan government. 

Last week, the U.S. Department of the Treasury designated three individuals and eight foreign entities, and identified two vessels as blocked property for their activities in or associated with a network attempting to evade United States sanctions on Venezuela’s oil sector. The sanctioned entities include Mexico-based Libre Abordo and its affiliate Schlager Business Group, the Treasury said. 

Despite the U.S. sanctions, Venezuelan crude has still been reaching China in recent months. 

According to the U.S. Administration, the tanker Delos Voyager – which is now a blocked property – loaded 515,000 barrels of Venezuelan crude in mid-January 2020 and delivered it to Qingdao, China, in February 2020, while EUROFORCE loaded 500,000 barrels of Venezuelan crude in mid-March 2020 and transferred the cargo to another vessel in the South China Sea in late May 2020. 

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Brickbat: That Will Never Work

nursinghome_1161x653

In Michigan, nearly 2,000 nursing home residents have perished from the coronavirus, and 20 nursing home workers have died. That represents more than a third of the state’s total coronavirus deaths. But an open records request by local media has found that just three days after the state’s first confirmed coronavirus case, the head of the state nursing home association proposed that coronavirus patients be sent to empty facilities for quarantine. Instead, Gov. Gretchen Whitmer ordered patients sent to nursing homes where they were supposed to be isolated from other residents. Republican lawmakers and at least one Democratic lawmaker have called on Whitmer to end that policy and send coronavirus patients to separate facilities.

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Brickbat: That Will Never Work

nursinghome_1161x653

In Michigan, nearly 2,000 nursing home residents have perished from the coronavirus, and 20 nursing home workers have died. That represents more than a third of the state’s total coronavirus deaths. But an open records request by local media has found that just three days after the state’s first confirmed coronavirus case, the head of the state nursing home association proposed that coronavirus patients be sent to empty facilities for quarantine. Instead, Gov. Gretchen Whitmer ordered patients sent to nursing homes where they were supposed to be isolated from other residents. Republican lawmakers and at least one Democratic lawmaker have called on Whitmer to end that policy and send coronavirus patients to separate facilities.

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“Historic Decline” Seen In April World Trade Volumes As V-Shaped Narrative Implodes 

“Historic Decline” Seen In April World Trade Volumes As V-Shaped Narrative Implodes 

Tyler Durden

Fri, 06/26/2020 – 04:15

New CPB World Trade Monitor data shows a “historical decline” in world trade volume in April of 12.1% compared with March. 

“Exports fell back significantly in several regions: -23% for both the eurozone and the US, -21% for Latin-America, -14% Japan, and -11% for other advanced economies. Imports declined most in Latin-America (-18%), the eurozone (-17%), the US (-11%), and other advanced economies (-15%).

“The growth in world trade during the months February to April compared with the preceding three months was -7.2%. None of the regions showed an increase, and the eurozone showed the most negative development (-13% exports, -11% imports),” CPB World Trade Monitor said. 

The world merchandise trade volume, three months moving average, shows global trade stalled in late 2017 through 2019 – turned abruptly lower during the COVID-19 pandemic. 

The world merchandise trade volume, last three months on the preceding three months, shows the virus pandemic triggered the worst declines of the global expansion. Suggesting worldwide lockdowns have triggered a recessionary shock

Global industrial production volume three months moving average in terms of the world, advanced economies, and emerging economies – notice how volumes leveled off between late 2017 and 2019 – then plunged during the virus lockdowns in early 2020.

Global industrial production volume, last three months on the preceding three months in terms of the world, advanced economies, and emerging economies – the virus pandemic was by far the worst shock of the entire cycle.

Around this time (late April), we noted, global economic activity may have troughed – but it won’t materialize into a V-shaped recovery as many in the Trump administration and Wall Street would like to believe. 

With world trade still in the dumps – a rise in global virus cases and deaths could derail the global recovery and lead to a prolonged downturn. 

Forget a V-shaped, try a ‘Nike swoosh’ recovery – as explained by UCLA Anderson Forecast senior economist David Shulman, who recently said the virus pandemic has “morphed into a Depression-like crisis” with no V-shaped recovery until 2023. 

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How The Dutch Rigged The Outcome Of The MH17 Trial (On A Charge That Requires No Proof)

How The Dutch Rigged The Outcome Of The MH17 Trial (On A Charge That Requires No Proof)

Tyler Durden

Fri, 06/26/2020 – 03:30

Authored by John Helmer via Dances With Breas blog,

The Dutch Government has devised an evidence-proof scheme for ensuring the trial of the Russian government for the destruction of Malaysia Airlines Flight MH17 will end in a conviction.

This scheme will work without evidence to prove that the four men accused of the crime of shooting down the aircraft, killing the 298 passengers and crew on board on July 17, 2014, intended to kill; or even intended to fire the missile which allegedly brought MH17 down.

The Dutch scheme is evidence-proof because no evidence will be needed, not from US satellite photographs which are missing; nor NATO airborne tracking which shows no missile; nor Ukrainian Security Service (SBU) evidence which has proved to have been fabricated, and in the case of Ukrainian witnesses for the prosecution, threatened, tortured or bribed.  

The scheme is also evidence-proof because the Dutch Prime Minister has told the Dutch Minister of Justice to order the state prosecutors to tell the state-appointed judge that he must convict the Russians if he finds as proven that MH17 crashed to the ground in eastern Ukraine; that everyone on board was killed; and that the four soldiers accused – three Russians and one Ukrainian – were on the ground fighting.

International war crimes lawyers are calling this a legal travesty. It was presented in court near Amsterdam by Dutch state prosecutor Thijs Berger on June 10. It has gone unnoticed in the mainstream western media. Russian reporters following the trial have missed it. The scheme was first reported in English and Russian by a NATO propaganda unit on June 12.

As a prosecutor of the Dutch War Crimes Unit, a state entity, Berger has been employed in the past to prosecute the targets of wars fought by the Dutch, alongside NATO and the US, in Yugoslavia and Afghanistan. In Europe his group prosecuted war crimes alleged by the NATO alliance in its war on Serbia from March to June of 1999.  A recent report [2]to which Berger contributed, entitled Universal Jurisdiction Annual Review 2019,  identifies a case which Berger pursued of war crimes in Afghanistan; those alleged crimes were not of the US and allied forces in Afghanistan, but of the local Afghans defending themselves.

Prosecutor Thijs Berger announces the evidence-proof scheme of Article 168.  The legal loophole is spelled out over six minutes – Min 3:31:00 to 3:37:00.

For his presentation to presiding judge Hendrik Steenhuis, Berger read from a multi-page script authorized by his superiors in the Dutch Ministry of Justice and Security. They and he  repeatedly made the mistake of calling the charges in the prosecution’s indictment – Articles 168, 287 and 298 – provisions of the Dutch Code of Criminal Procedure. This is the procedure code; its provisions are called articles in the original Dutch, but sections in the English version. 

The charges of the indictment are from the Dutch Criminal Code. They are called articles in court; they are called articles in the Dutch statute  but sections in the official English translation.

Source: The Dutch Criminal Code

For analysis of how the prosecution has manipulated both the Criminal Code and the Code of Criminal Procedure in the MH17 trial preliminaries, read this.

“The scope of the indictment,” Berger began his legal argument, is that together, the four defendants — Igor Girkin (Strelkov),  Sergei Dubinsky, Oleg Pulatov,  who are Russians, and Leonid Kharchenko, a Ukrainian – played “a steering, organizing,  and supporting role in deploying the BUK-Telar [missile and radar unit]” to shoot down MH 17 (Min 3:25:22). They were members of an “armed group” engaged in “armed struggle, the purpose being to shoot down an aircraft” (Min 3:27:20-21).

Note the indefinite article – an aircraft.  The prosecution is charging the four with capital crimes for defending themselves from attack by the Ukrainian Air Force. This, however, is not mentioned by the prosecution.

“They are not being prosecuted,” Berger went on, “as the persons who actually carried out the firing process” (Min 3:38:22). “We do not need evidence as to the exact cause of events in order to be able to judge the accused” (Min 3:28:27). Homicide or murder, Berger conceded, is in Dutch law “death caused intentionally” (Min 3:29:15).  But the crimes which must be judged by Steenhuis and his panel of The Hague District Court, he claims aren’t homicide in the usual  legal sense. “The exact course of events need not be established” (Min 3:30:43), Berger told Steenhuis. So the prosecution does not need to prove what happened. “That the missile which hit the MH17 could possibly have been meant and intended for a military aircraft doesn’t change these facts” (Min 3:31:17).

None of the charges in the indictment requires intention concerning the civilian nature of the aircraft or the occupants. The crimes in the indictment forbid the downing of any aircraft; this is Article 168 of the Code of Criminal Procedure [sic]; and also forbid causing the deaths of others under Articles 287 and 289 irrespective of whether the aircraft has a military or civilian status, and an error in the target doesn’t really make a difference for the evidence that these crimes have been committed.  So no evidence is required that the accused should have had the intention to shoot down a civilian aircraft” (Min 3:32:00).

“It was their intention to down a military aircraft of the Ukrainian Air Force” (Min 3:32:28), Berger claims his evidence of the SBU telephone tapes and witnesses proves.

 “Those who intend to shoot down a military aircraft and subsequently,  accidentally,  hit a civilian aircraft are guilty of causing an aircraft to crash according to Article 168 of the Code of Criminal Procedure [sic];  but also guilty of murder of the occupants according to Article 289 of the Code of Criminal Procedure [sic]” (Min 3:33:04).

In a regular court of law in England, Australia, Canada or the US, a prosecutor’s legal argument is always presented with explicit references to the case law. That’s the accumulation of judgements by courts going back as far as the history of the crime and of the statute can be traced. These are the precedents which, in international law and in Dutch law too, must be followed by judges hearing cases to which these precedents apply.  This reflects the accepted notion that law is cumulative, and that judges administer and interpret that law; they don’t issue personal opinions or preferences.

Berger didn’t identify any Dutch case law or provide the court with precedents in previous cases decided by the Dutch courts.

The reason is that there are none , explains a veteran Dutch judge who was asked this week to identify the case law on Article 168. The judge replied: “It’s sufficient to establish that the defendant had the intention to take down some aircraft and that he should have seriously taken into consideration the chance that he would hit an aircraft such as the MH-17. That’s called conditional intent — voorwaardelijk opzet in Dutch… Answering this question [of precedents] took a bit more time. I couldn’t find any case law that would be relevant to the issue. Article 168 is not used very often.”

Conditional intent doesn’t exist in Anglo-American law. But in Dutch law, the concept has not (repeat never) been applied to cases of warfare, or in situations of military engagement where men are attacking and defending themselves. For a Dutch review of the court precedents for application of voorwaardelijk opzet to deaths caused by a drunk driver and a poisoning, read this   [8]– Sect. 3.3.1.  Fatal traffic offences committed by drunken drivers are the typical homicides in which Dutch prosecutors apply the doctrine of conditional intent; the case law and precedents are reviewed here [9].   No Dutch lawyer, judge or court has ever applied this to warfare.

Berger knows this; so does Steenhuis. They also know there is voluminous case law in the international courts dealing with similar facts to those of the MH17 case and of the combat in which the four defendants were engaged; for a sample Dutch law review, read this.

Again,  Berger ignored what no prosecutor outside The Netherlands would attempt in front of a judge. “We are aware,” Berger told Steenhuis, “of academic comments that imply that Article 168 would require intention in killing civilians [Min 3:33:04]. But this is incorrect. Article 168 does not require any intention for the death of the occupants” (Min 3:33:34).

The NATO propaganda unit Bellingcat repeated this claim in a publication  two days after Berger’s presentation. The Article 168 argument, repeated from Berger’s script, will prove to be a “boomerang” for the Russian government, NATO officials are now claiming. “It is only a question of time, therefore, that the Dutch prosecution brings murder charges against Russian top military commanders.  Unlike the case with the 4 defendants, they would easily have obtained combatant immunity, if only they – and their supreme commander – had admitted to being part of the war. But they – and he – continuously denied, and this alone makes immunity impossible. Also unlike the 4 defendants, the political price that Russia will pay such indictments will be much higher. It is one thing for 3 Russian ‘volunteers’, forgotten by most, to spend the rest of their life holed up at home and afraid to take any trip abroad.  It’s an altogether different story when top Mod [Ministry of Defence]  and FSB officials – and maybe even a minister – are charged with murder of 298 civilians and end up on the Interpol red-notice list.”

International lawyers already before the European Court of Human Rights are arguing that the “boomerang” strikes the government in Kiev first, because it was ordering combat in eastern Ukraine, including orders for bombing and strafing by the Ukrainian Air Force, and at the same time refusing to close the airspace to civilian aircraft. The case of Denise Kenke, on behalf of her father,  MH17 victim Willem Grootscholten, explains.

Canadian war crimes attorney Christopher Black (right) says the Dutch prosecution is deliberately ignoring Dutch law,  as well as international law.

“What Berger is stating is a case of criminal negligence, not murder. The general principles of criminal law apply to this case as much as to any case. As for the burden of proof, the court has to be convinced on the basis of the lawful evidence presented that the accused has committed the crime he is accused of.”

Black is pointing out that the prosecution’s evidence from the Ukrainian SBU is unlawful. For analysis of evidence tampering by the SBU,  read more .

“’Any person who intentionally and unlawfully’— that’s the key phrase in the wording of Article 168. Its use there means specific intent. Specific intent. A general intent to use missiles on something is not good enough in this case. It is telling that [Berger] does not make the distinction between specific intent versus general intent. That indicates the prosecutors don’t think they can prove the necessary specific intent. And if the plane had been shot down by the accused thinking it was engaged in an attack on them or masking [a Ukrainian Air Force] attack on them, then the court cannot convict. That’s because the facts would show an accident or a justifiable act of self-defence.”

In Dutch courts, there are several of what are called “full defences” to indictments for murder. One is insanity; another [14] is duress. Self-defence is the third full defence; it is spelled out in Article 41 of the Criminal Code:

Source: http://www.ejtn.eu/

European lawyers observing the MH17 trial have noted that Berger failed to mention that. They interpret this as an indication the prosecution already believes Judge Steenhuis has decided on conviction.

“The term ‘unlawfully’ is used in Article 168”, Black continues, “because there may be situations where at sea, for example, a vessel has to be grounded or sunk because it is a danger to other shipping or to the crew — or to save the crew. It’s harder to think of a plane that must be crashed for a comparable reason. But one can anticipate the scenario – for example, when men on the ground believe on reasonable grounds that an aircraft was about to bomb them – when attacking the plane would not be considered unlawful because it is self-defence.”

So the Dutch prosecutors are trying to prove there was an intent [to fire at an aircraft] and therefore they did it, even if there is no evidence they did. I didn’t realise courts dealt in smoking guns. They ought to be dealing in hard evidence. The fact that someone fantasizes about a woman and she ends up getting pregnant and then she has a miscarriage can’t be turned into the accusation against the man of intent to make her pregnant, and then of causing her miscarriage, and so guilty of bodily harm.”

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The Trans-Atlantic Slave Trade Uprooted Millions

The Trans-Atlantic Slave Trade Uprooted Millions

Tyler Durden

Fri, 06/26/2020 – 02:45

400 years ago, in August 1619, the first ship with enslaved Africans destined for the United States arrived in what was then the colony of Virginia. But, as Statista’s Katharina Buchholz notes, the cruel history of the trans-Atlantic slave trade begins much earlier.

In fact, many enslaved people lived in the English colonies in North America before that date. They came to the present-day U.S. via Spanish and Portuguese colonies, where enslaved Africans arrived as early as 1514, or were transferred as bounty from Spanish or Portuguese ships.

The United States are heavily associated with slavery and the capture and forceful relocation of Africans. Around 300,000 disembarked in the U.S. directly, while many more arrived via the inter-American slave trade from the Caribbean or Latin America. It is estimated that almost 4.5 million enslaved Africans arrived in the Caribbean and another 3.2 million in present-day Brazil.

Around 40 percent of Africans uprooted in slavery are believed to have come from Angola in Southern Africa, with another 30 percent who came from the Bay of Benin in West Africa.

Infographic: The Trans-Atlantic Slave Trade Uprooted Millions | Statista

You will find more infographics at Statista

The numbers taken from database project SlaveVoyages.org indicate the number of Africans disembarking. Many more died on the way because of lack of food and water and horrid conditions aboard the slave ships. Others were uprooted in the trans-Saharan, the red sea and the Indian slave trade, which partly predated the trans-Atlantic slave trade

It is estimated that close to 20 million people were forced to leave the African continent enslaved. By 1800, this had decimated the African population to half the size it would have been had slavery not occurred.

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Cambridge University Defends, Promotes Academic After ‘Racist’ Tweets Removed From Twitter

Cambridge University Defends, Promotes Academic After ‘Racist’ Tweets Removed From Twitter

Tyler Durden

Fri, 06/26/2020 – 02:00

Authored by Paul Joseph Watson via Summit News,

Cambridge University reacted to one of its academics tweeting “White Lives Don’t Matter” by ignoring the backlash and promoting her to a full professorship.

As we highlighted yesterday, the controversy began when Dr Priyamvada Gopal, English academic and Churchill fellow, tweeted, “abolish whiteness” and “I’ll say it again. White Lives Don’t Matter.”

This prompted the launch of a petition to have her fired which currently has almost 15,000 signatures.

However, both the university and media outlets responded by trying to frame a narrative that Gopal was being “abused” by a hate mob, completely pardoning her for her overtly racist comments.

Despite the fact that Twitter has now removed Gopal’s original tweet for hate speech, Cambridge University itself has rewarded the academic.

“Thanks to everyone who wrote to @Twitter: the ludicrous ban has been lifted. I am therefore delighted to share with you personally, that last night Cambridge promoted me to a full Professorship,” tweeted Gopal. “The hate mails & threats are coming in non-stop but @CambridgeCops are following up.”

She also blamed the backlash on “people who elect the likes of Trump and (Boris) Johnson.”

Cambridge University has therefore literally rewarded Gopal for publishing racist hate speech.

Their approach to another academic, Noah Carl, was somewhat different after 500 academics signed a letter challenging Carl’s research on race and intelligence. He was swiftly dismissed.

Cambridge University also previously rescinded its offer of a visiting fellowship to Jordan Peterson after a woke mob complained about his stance on political correctness and after he appeared in a photograph with a man wearing a t-shirt that said “I’m a proud Islamophobe.”

Having formerly enjoyed a reputation as one of the most prestigious educational institutions in the world, Cambridge University is now proudly proclaiming itself to be a safe space for vile racists – and they’ll be teaching your kids!

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States Can Reform Qualified Immunity on their Own

qualified immunity

The death of George Floyd and resulting nationwide protests against police abuses have focused renewed attention on the legal doctrine of “qualified immunity,” which all too often enables law enforcement officials to escape liability for egregious violations of constitutional rights. Unfortunately, the Supreme Court recently refused to take any cases that might overturn or limit the dubious doctrine it itself created. Congress could potentially abolish or limit qualified immunity by adopting new legislation curbing it. But Senate Republicans say that such a move would be a “poison pill” and it’s not clear that GOP supporters of reform can gather enough votes to get it through this year.

The Supreme Court, Congress or both might yet revisit this issue in the future. But in the meantime, there is much that state governments can do without waiting for federal action. The vast majority of law enforcement operations—and law enforcement abuses—are conducted by state and local police. State governments can address their misdeeds without waiting for either the Supreme Court or Congress to act.

The state of Colorado recently passed a reform law that is a model of its kind, one that other states would do well to imitate. Jay Schweikert of the Cato Institute has a helpful description of the Colorado law and its advantages:

Colorado Governor Jared Polis has signed into law Senate Bill 20–217 (“SB-217”), otherwise known as the Law Enforcement Integrity and Accountability Act. SB-217 includes a range of major policing reforms… But perhaps most notably, the law ensures that police officers in Colorado will not be able to avoid liability for their misconduct due to the unlawful shield of qualified immunity.

While many are summarizing SB-217 as “ending qualified immunity” in Colorado, what the law formally does is permit individuals to bring claims against police officers who violate their constitutional rights under Colorado law. SB-217 is therefore a kind of “state analogue” to Section 1983, our main federal civil rights statute. Whereas Section 1983 creates a cause of action allowing individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, SB-217 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court.

Colorado, like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that “qualified immunity is not a defense to liability pursuant to this section.” So, the law does not technically “eliminate qualified immunity,” insofar as we’re talking about the federal doctrine — if Coloradans bring Section 1983 claims in federal court, those claims will still be subject to qualified immunity. But the law does ensure, at least with respect to police officers, that Coloradans will have a robust alternative remedy to Section 1983 claims for violations of their constitutional rights.

Colorado is not the first state to enact a “state analogue” to Section 1983, but it is the first state to specifically negate the availability of qualified immunity as a defense through legislation. As it turns out, that clarification is crucial, because in nearly all of the other states that have passed similar laws, state courts have incorporated a similar or identical version of federal qualified immunity, even when the relevant statute says nothing about it.

As Schweikert points out, SB-217 doesn’t technically eliminate qualified immunity as a defense to lawsuits charging violations of federal constitutional rights. But it effectively achieves the same goal by eliminating it as an obstacle to lawsuits under the state constitution, which provides much the same rights.

There are, nonetheless, a few limitations to the law. Most obviously, it does not apply to federal law enforcement agencies. In addition, it may not apply to  “state-federal task forces,” where state and local cops working with the feds can claim immunity to lawsuits under state law, on the theory that they’re really acting as federal agents, rather than state ones. As far as I can tell, the text of SB-217 doesn’t explicitly address state-federal task forces, and it is not clear to me whether state and local police participating in them can still claim qualified immunity as a defense to suits under state law or not. I welcome correction on this point, from those more expert in Colorado law. But, in the meantime, I would tentatively suggest that Colorado should amend the law to explicitly cover this scenario.

Another issue SB-217 does not address is cases where the federal government enables state and local law enforcement to get around state laws restricting asset forfeiture by having the federal government “adopt” state seizures and then in effect share the loot with their state and local friends. Such policies enable cops to profit from the seizure of property owned by people who have never even been charged with any crime, much less convicted. It is a serious problem in many states around the country, one that particularly victimizes the poor and racial minorities. SB-217 does not seem to bar qualified immunity as a defense to illegal asset forfeitures “adopted” by the federal government.

Fortunately, a 2017 Colorado law already imposes tight limits on state and local police participation in the federal “equitable sharing” program that facilitates adoption. But Colorado should take this reform even further, and forbid such adoption altogether. Other states that might imitate the Colorado reform should also address this issue—particularly those that don’t already have legislation like the 2017 Colorado law.

Finally, it’s worth emphasizing that ending qualified immunity is not the only reform needed to curb law enforcement abuses. There are a variety of other steps states should take as well, only some of which are included in other parts of SB-217.

Despite these limitations, SB-217 is an impressive step in the right direction, one that other jurisdictions can learn from. Other states might also be able to learn from the process by which Democratic Governor Jared Polis and legislative leaders quickly secured broad bipartisan support for the bill. As always, the best should not be the enemy of the good. And this law is very good indeed.

 

 

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States Can Reform Qualified Immunity on their Own

qualified immunity

The death of George Floyd and resulting nationwide protests against police abuses have focused renewed attention on the legal doctrine of “qualified immunity,” which all too often enables law enforcement officials to escape liability for egregious violations of constitutional rights. Unfortunately, the Supreme Court recently refused to take any cases that might overturn or limit the dubious doctrine it itself created. Congress could potentially abolish or limit qualified immunity by adopting new legislation curbing it. But Senate Republicans say that such a move would be a “poison pill” and it’s not clear that GOP supporters of reform can gather enough votes to get it through this year.

The Supreme Court, Congress or both might yet revisit this issue in the future. But in the meantime, there is much that state governments can do without waiting for federal action. The vast majority of law enforcement operations—and law enforcement abuses—are conducted by state and local police. State governments can address their misdeeds without waiting for either the Supreme Court or Congress to act.

The state of Colorado recently passed a reform law that is a model of its kind, one that other states would do well to imitate. Jay Schweikert of the Cato Institute has a helpful description of the Colorado law and its advantages:

Colorado Governor Jared Polis has signed into law Senate Bill 20–217 (“SB-217”), otherwise known as the Law Enforcement Integrity and Accountability Act. SB-217 includes a range of major policing reforms… But perhaps most notably, the law ensures that police officers in Colorado will not be able to avoid liability for their misconduct due to the unlawful shield of qualified immunity.

While many are summarizing SB-217 as “ending qualified immunity” in Colorado, what the law formally does is permit individuals to bring claims against police officers who violate their constitutional rights under Colorado law. SB-217 is therefore a kind of “state analogue” to Section 1983, our main federal civil rights statute. Whereas Section 1983 creates a cause of action allowing individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, SB-217 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court.

Colorado, like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that “qualified immunity is not a defense to liability pursuant to this section.” So, the law does not technically “eliminate qualified immunity,” insofar as we’re talking about the federal doctrine — if Coloradans bring Section 1983 claims in federal court, those claims will still be subject to qualified immunity. But the law does ensure, at least with respect to police officers, that Coloradans will have a robust alternative remedy to Section 1983 claims for violations of their constitutional rights.

Colorado is not the first state to enact a “state analogue” to Section 1983, but it is the first state to specifically negate the availability of qualified immunity as a defense through legislation. As it turns out, that clarification is crucial, because in nearly all of the other states that have passed similar laws, state courts have incorporated a similar or identical version of federal qualified immunity, even when the relevant statute says nothing about it.

As Schweikert points out, SB-217 doesn’t technically eliminate qualified immunity as a defense to lawsuits charging violations of federal constitutional rights. But it effectively achieves the same goal by eliminating it as an obstacle to lawsuits under the state constitution, which provides much the same rights.

There are, nonetheless, a few limitations to the law. Most obviously, it does not apply to federal law enforcement agencies. In addition, it may not apply to  “state-federal task forces,” where state and local cops working with the feds can claim immunity to lawsuits under state law, on the theory that they’re really acting as federal agents, rather than state ones. As far as I can tell, the text of SB-217 doesn’t explicitly address state-federal task forces, and it is not clear to me whether state and local police participating in them can still claim qualified immunity as a defense to suits under state law or not. I welcome correction on this point, from those more expert in Colorado law. But, in the meantime, I would tentatively suggest that Colorado should amend the law to explicitly cover this scenario.

Another issue SB-217 does not address is cases where the federal government enables state and local law enforcement to get around state laws restricting asset forfeiture by having the federal government “adopt” state seizures and then in effect share the loot with their state and local friends. Such policies enable cops to profit from the seizure of property owned by people who have never even been charged with any crime, much less convicted. It is a serious problem in many states around the country, one that particularly victimizes the poor and racial minorities. SB-217 does not seem to bar qualified immunity as a defense to illegal asset forfeitures “adopted” by the federal government.

Fortunately, a 2017 Colorado law already imposes tight limits on state and local police participation in the federal “equitable sharing” program that facilitates adoption. But Colorado should take this reform even further, and forbid such adoption altogether. Other states that might imitate the Colorado reform should also address this issue—particularly those that don’t already have legislation like the 2017 Colorado law.

Finally, it’s worth emphasizing that ending qualified immunity is not the only reform needed to curb law enforcement abuses. There are a variety of other steps states should take as well, only some of which are included in other parts of SB-217.

Despite these limitations, SB-217 is an impressive step in the right direction, one that other jurisdictions can learn from. Other states might also be able to learn from the process by which Democratic Governor Jared Polis and legislative leaders quickly secured broad bipartisan support for the bill. As always, the best should not be the enemy of the good. And this law is very good indeed.

 

 

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