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Two officers who beat and ultimately killed a schizophrenic man—who had been subdued and who had not committed a crime—are not entitled to qualified immunity and can thus be sued over the incident, the U.S. Court of Appeals for the 5th Circuit ruled last week. 

The decision affirms the U.S. District Court for the Eastern District of Louisiana’s ruling, which held that the pair violated Kendole Joseph’s Fourth Amendment rights and used excessive force when they delivered 26 blunt-force blows to his face, back, chest, extremities, scrotum, and testes, resulting in his death two days later. 

But while the 5th Circuit agreed that Joseph’s rights were also violated by a group of bystander officers—who watched the beating, with some participating in ways stopping short of blunt-force—they granted them qualified immunity. The legal doctrine shields public officials from accountability when their misconduct and the associated circumstances have not been outlined almost exactly in a preexisting court decision, even in cases where the court agrees the plaintiff’s constitutional rights were violated.

On February 7, 2017, the assistant principal at Gretna Middle School told Officers Thomas Thompson and Arthur Morvant, who work at the school, that a “strange guy,” who was “nervous and shaky” and “not walking straight,” was loitering outside the gate. After the two approached Joseph, they reported that he fled the area, yelling, “Help me from the police!” Morvant, who said that it was clear Joseph may be “emotionally disturbed,” alerted nearby officers that a “suspicious person” was on the move.

Officers Eddie Martin and Brandon Leduff heard Morvant’s radio call and noticed Joseph shortly thereafter. They commanded that he come toward them; he instead ducked into a convenience store. The officers followed. By Martin’s own admission, it did not appear that Joseph had a weapon on his person, nor did Joseph make any attempt to reach for one. Upon entering the store, they heard Joseph shouting, “Help me, help me, somebody call the cops” and “They’re trying to kill me.” Martin pointed his gun at Joseph and ordered him to get on the ground, at which point Joseph jumped over the convenience store counter and assumed the fetal position, face-down.

Martin then put most of his 300-pound body weight on Joseph and tased him for 11 seconds, demanding he put his hands behind his back. How he could have complied while Martin was on top of him remains unclear. Nine other cops—as well as Thompson and Morvant—would go on to join Martin and Leduff in the convenience store, all to apprehend a man who did not pose a threat and who was not suspected of committing a crime.

Over the next several minutes, Martin beat Joseph with a baton, punched him in the face several times, and tased him again. Officer Duston Costa, one of the additional cops on the scene, kicked Joseph 12 or 13 times and punched him in the head repeatedly. The remaining officers, who had been observing and offering varying levels of assistance, helped handcuff Joseph and place him in leg shackles before carrying him to a patrol car.

During the struggle, Joseph made a variety of pleas. He asked for someone to call “the real police.” He assured the group that he “[did] not have a weapon.” He called out for his mother.

Joseph, who had been experiencing a psychotic episode related to his schizophrenia, later died at a nearby hospital from his injuries.

“Though Joseph was not suspected of committing any crime, was in the fetal position, and was not actively resisting,” writes Circuit Judge Don R. Willett, “Officers Martin and Costa inflicted twenty-six blunt-force injuries on Joseph and tased him twice, all while he pleaded for help and reiterated that he was not armed.”

But as Willett reminds us, a clear constitutional infringement, as outlined here, is not sufficient to defeat a qualified immunity defense. Plaintiffs must show that the violation was “clearly established” in case law prior to the alleged offense—as if police officers are reviewing court precedents before going to work. The one exception: Defendants may lose qualified immunity protections absent relevant case law if their misconduct was so obviously unconstitutional that any “reasonable officer” would know. It was under the latter pretense that the district court denied Martin and Costa qualified immunity, though the 5th Circuit rejected that.

“The standard for obviousness is sky high,” Willett notes, “and this case does not meet it.” He instead highlights three court precedents—Newman v. Guedry (2012), Ramirez v. Martinez (2013), and Cooper v. Brown (2016)—which should have alerted Martin and Costa to the fact that beating a subdued man to his death violates the Fourth Amendment. 

The cohort of bystander cops received qualified immunity after the plaintiffs failed to furnish a relevant court precedent. “We make no comment on whether Plaintiffs could have done so—the record in this case simply shows that they have not done so,” says Willett. “The officers don’t identify cases or make arguments either, but that is not their burden.” That claim, he contends, likewise fails the obviousness test.

In combing through qualified immunity decisions, it would appear that the obviousness standard is indeed “sky high”—at least, as interpreted by the courts. Though there are several applicable examples, one is particularly instructive: Two cops received qualified immunity after allegedly stealing $225,000 while executing a search warrant. They “did not have clear notice that it violated the Fourth Amendment,” wrote judges for the U.S. Court of Appeals for the 9th Circuit, as if stealing is not an obvious constitutional infringement. (Their opinion acknowledged that the officers “ought to have recognized that the alleged theft was morally wrong.”)

According to Willett, the rigorousness of that standard is demanded by the Supreme Court, which, he says, “strictly enforces the requirement to identify an analogous case and explain the analogy.” But it was the Supreme Court that, just three weeks prior, invoked the standard for obviousness when they reversed a lower court ruling granting qualified immunity. 

The decision they struck down came from the 5th Circuit.

In that case, several prison guards originally received qualified immunity after locking a naked inmate in two filthy cells—one covered in “massive amounts” of human feces and the other with sewage on the floor. While the court conceded that the guards violated the man’s Eighth Amendment rights, he was not afforded the right to sue because the amount of time he spent in those cells—six days—was not spelled out somewhere in previous case law.

The Supreme Court fundamentally rejected that argument in a 7-1 ruling. “No reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house [the inmate] in such deplorably unsanitary conditions for such an extended period of time,” they wrote in an unsigned opinion.

Though the particulars of the two cases are obviously different, the legal reasoning needn’t be. Both cases epitomize the perverted logic of qualified immunity, a doctrine that provides rogue government agents cushy protections not available to the little guy. If housing an inmate in deplorably unsanitary conditions isn’t obviously a constitutional violation, and if beating a subdued man to his death isn’t obviously a constitutional violation, then what is obvious?

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On Monday, Penguin Random House announced it would publish a sequel to 12 Rules for Life, the bestselling self-help book by Canadian psychologist Jordan Peterson.

In response, several employees of the publishing giant broke down crying—and no, these weren’t happy tears due to the prospect of selling so many books.

“He is an icon of hate speech and transphobia and the fact that he’s an icon of white supremacy, regardless of the content of his book, I’m not proud to work for a company that publishes him,” a young LGBTQ employee told Vice News. Another employee said people were crying in meetings because of the negative way “Peterson has affected their lives.” Several submitted complaints—outraged that the company would give yet another platform to a person whose views they find toxic.

Peterson, a professor of psychology at the University of Toronto, is indeed controversial among progressives: He first came to the public’s attention in 2016 when he criticized a Canadian human rights law that he said would violate academic freedom by requiring him to use trans people’s preferred pronouns. (Peterson claimed he would not be forced to use words that, in his view, were invented by activists; he wasn’t attempting to misgender any specific trans people.) In subsequent years, he became a passionate opponent of identity politics, speech policing, and cancel culture, and is revered by many young, right-of-center males.

Critics contend that he gave voice to the concerns of the far-right, and helped embolden racial bigotry and anti-trans animus. Defenders point out that Peterson does not actually push racist or bigoted ideas, he merely rejects the idea that people should be coerced into opposing them. Moreover, while it’s undeniably true that Peterson was popular among the racist alt-right, others have plausibly argued that Peterson’s work has helped to prevent some vulnerable young people from experiencing radicalization. In any case, his actual book falls squarely in the self-help category, and offers such banal wisdom as “clean your room.” Reason‘s Matt Welch gave the book a conflicted review, observing that Peterson was “too important to—and reliant on—the great campus culture wars to have any realistic hopes of transcending them.”

People who run publishing companies have to make all sorts of difficult decisions about which books to sign off on, and employees of those companies are welcome to give input: In many cases, that’s their exact job. But it certainly says something about the ideological capture of so many elite institutions of knowledge sharing—the traditional media, social media, the university, and now book publishing. Many young, militantly woke staffers at these places are determined to suppress viewpoints they disagree with on grounds that conflicting opinions are literally dangerous to their safety. For them, Peterson’s book isn’t an intellectual endeavor worth challenging, it’s an assault on their emotional wellbeing.

Peterson, for what it’s worth, has apparently had a challenging year. It was reported that he had become addicted to prescription drugs and had traveled to Russia for treatment; doctors then placed him in a medically-induced coma for eight days as he recovered from pneumonia. He later went with his daughter to Serbia and contracted COVID-19. It might be interesting to read how—or even if—these struggles changed his thinking: His next book will be titled Beyond Order: 12 More Rules for Life.

I’d be lying if I said I wasn’t mildly curious. Here’s hoping Penguin Random House’s Peterson-skeptics succeed in improving the book, rather than preventing it from ever seeing the light of day.

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QUEER, SLAAYRR license plates are OK, says judge. Thanks to the First Amendment, the state of California can’t ban residents from vanity license plate messages that it deems “offensive to good taste and decency.” A federal court ruled Tuesday that the state rule was an unconstitutional restriction on free expression.

The case against the California Department of Motor Vehicles—heard by the U.S. District Court for the Northern District of California— was brought by five people who were told their choices of vanity plate messages were off-limits. The five plaintiffs were represented by the libertarian law firm Pacific Legal Foundation (PLF).

“Vague bans on offensive speech allow bureaucrats to inject their subjective preferences and undermine the rule of law,” said PLF’s Wen Fa in a statement.

One of the people who filed the suit is a gay man who owns a record company called Queer Folks Records. He was originally told that he couldn’t get a license plate saying QUEER because it was an insult.

Another plaintiff—who loves the band Slayer—was denied a SLAAYRR license plate because the Department of Motor Vehicles (DMV) said the message was “threatening, aggressive or hostile.”

Agree with this 100 percent. Grateful to all of our clients for standing up for their constitutional rights. Today, a federal court agreed and held that California had no business restricting speech that it believes "offensive to good taste and decency." https://t.co/fz72O7219v https://t.co/QOMxKlBb9h

— Wen Fa (@wenfa1) November 24, 2020

The DMV told plaintiff Paul Ogilvie that he couldn’t get a plate combining the first letters of his last name and his favorite animal— OGWOOLF—because OG can be slang for original gangster.

Another plaintiff was denied DUK N A plate because the DMV said it sounded too much like an obscene phrase, even if it wasn’t itself obscene. And BO11LUX (which looks to me like a play on the exclamation “Bollocks!”) was declared by the DMV to be too sexual.

But U.S. District Judge Jon Tigar sided with the plaintiffs, saying the state’s ban on plate messages with “connotations offensive to good taste and decency” is unconstitutional.

Tigar pointed to a recent Supreme Court ruling in favor of the band The Slants, who won a fight with the U.S. Patent & Trademark Office over their name.

“Tigar did say the DMV could probably be permitted to deny plates that are, for instance, obscene, profane or contain hate speech because they fall outside of First Amendment protections,” notes the Associated Press.

Today, Californians can feel a little freer.

A federal judge agreed with us that censorship of personalized license plates is absurd and unconstitutional.

????????????

(& congrats to @WenFa1 on another win!)https://t.co/eAi2pnmcQC pic.twitter.com/ipaXUosfzG

— Pacific Legal ????⚖️ (@PacificLegal) November 24, 2020

You can read the judge’s full ruling here. The case is Ogilvie v. Gordon.

FREE MINDS

“France will soon be a far less free country than it is now,” warns Mira Kamdar at The Atlantic. The country is considering three worrisome new laws. The first, adopted last week, is “a bill that sets the research budget for French universities for the next decade” as well as “targets student protests and took a stab at academic freedom,” explains Kamdar:

The bill includes a provision criminalizing on-campus gatherings that ‘trouble the tranquility and good order of the establishment’ with a fine of up to 45,000 euros and a prison term of up to three years. An amendment requiring that academic research hew to the ‘values of the Republic’ was scrapped only at the last minute, after strong pushback by scholars who feared that its intent was to restrict freedom of inquiry….

A second piece of legislation, a global-security bill introduced on November 17, aims to give the police a freer hand….

If all that weren’t bad enough, a third bill, designed to fulfill Macron’s vision for tackling Islamist radicalism outlined in an October 2 speech on “separatism,” is scheduled for consideration by his cabinet on December 9. Dubbed the “Confirming Republican Principles” bill, it would assign all French children a tracking number to enforce compulsory attendance in public or government-recognized schools, putting an end to homeschooling and unaccredited religious schools, and ensuring that all children are educated in the values of the French Republic. The bill also criminalizes sharing identifying information about a public servant that could be used to inflict harm—a response to the fact that private information about Paty was shared on social media, allowing his assassin to track him down. The new offense will be punishable by up to three years in prison and a 45,000-euro fine. Another provision would criminalize, and punish by up to five years in prison, “threats, violence or intimidation of a public official … for motives drawn from convictions or beliefs.” Some jurists fear the wording is so vague that it could be used to convict people for what amounts to justified criticism of a public official.

FREE MARKETS

The National Labor Relations Board (NLRB) has ruled that a joke tweet by Ben Domenech, the publisher of The Federalist, violates federal labor law. It’s part of a disturbing trend of the NLRB policing tweets. More from Bloomberg Law:

The publisher of conservative online magazine The Federalist unlawfully threatened workers when he said via Twitter that he’d send them “back to the salt mine” if they attempted to form a union, the National Labor Relations Board held.

“We find that employees would reasonably view the message as expressing an intent to take swift action against any employee who tried to unionize the Respondent,” the NLRB said in a ruling Tuesday. “In addition, the reference to sending that employee ‘back to the salt mine’ reasonably implied that the response would be adverse.”

The agency in recent years has policed high-profile executives’ anti-union language on social media, citing Tesla Inc. CEO Elon Musk for a tweet and reaching a settlement with Barstool Sports co-founder David Portnoy that required the deletion of offending tweets.

The decision upholds an administrative law judge’s ruling that FDRLST Media publisher Ben Domenech’s tweet violated federal labor law. The board ordered Domenech to delete the “salt mine” statement from his personal Twitter account.

QUICK HITS

Twitter is now labeling tweets summarizing public opinion polls as "disputed." https://t.co/2YK08zAbZz

— Zach Weissmueller (@TheAbridgedZach) November 25, 2020

• A new study from University College London researchers finds no evidence that some strains of COVID-19 spread more easily than others. “None of the mutations currently documented in the SARS-CoV-2 virus appear to increase its transmissibility in humans,” the study reports.

• You can check in on who Biden has appointed to his Cabinet here. So far, the choices are…not great.

• Here’s an interesting and eloquent exploration of a prestigious happiness researcher who killed himself.

• A new documentary, Recorder: The Marion Stokes Project, looks at the life of a woman who recorded local TV news segments on VCR tapes, all day, for 33 years. “Some have labelled Stokes a hoarder, but many remember her as an activist and visionary ahead of her time,” writes Daisy Schofield at Huck magazine.

• In Kentucky, more than one in every 10 children has had a parent in jail or prison.

• New Jersey police will have to start wearing body cameras.

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