Tag: hit&run

Is Brett Kavanaugh lying about boofing, the Ralph Club, and the Devil’s Triangle? And if so, should that be disqualifying for the Supreme Court, even if the process that led to such cross-examination was grotesquely cynical and partisan? Katherine Mangu-Ward, Peter Suderman, Nick Gillespie, and yours truly are split on these and other questions in this moment of national anger and anguish, as you can hear on the Monday editor-roundtable version of the Reason Podcast, but they do agree on one thing: To quote Robby Soave, “at this lowest of moments for political discourse,” it’s worth remembering that “the libertarian vision for society is one in which politics plays a much smaller role.”

The editors also discuss Sen. Jeff Flake (R–Ariz.) and the hated temperamental center, the latest poll numbers about political self-affiliation, the great reasonminus50 Twitter feed, and more.

Subscribe, rate, and review our podcast at iTunes. Listen at SoundCloud below:

Audio production by Ian Keyser.

‘The Life and Death of a Certain K. Zabriskie, Patriarch’ by Chris Zabriskie is licensed under CC BY 4.0

Relevant links from the show:

“The Kavanaugh Nomination Fight Has Pulled Us Further Into a Partisan Quagmire,” by Peter Suderman

“Jeff Flake and the Hated—Yet Vital—Libertarian Center,” by Matt Welch

“Brett Kavanaugh’s Anger Should Surprise No One,” by Robby Soave

“Christine Blasey Ford Was Worth Hearing, But No One on the Senate Judiciary Committee Was Listening,” by Robby Soave

“Beer, Courage, and Vomit: Major Themes of the Ford-Kavanaugh Hearing,” by Jacob Sullum

“Brett Kavanaugh’s Illegal Beer Consumption Highlights the Perversity of Drinking Ages,” by Jacob Sullum

“3 Questions To Ask Yourself While Watching the Kavanaugh/Ford Hearings Today,” by Nick Gillespie

“Supreme Court to Consider Tree Frogs, Liquor Licensing, Criminals With Dementia, and More This Fall,” by Elizabeth Nolan Brown

“Here’s What Congress Was Doing While You Were Watching the Kavanaugh Circus,” by Eric Boehm

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California Gov. Jerry Brown signed a sweeping new net neutrality bill into law on Sunday. Within minutes, his state was hit with a Department of Justice lawsuit.

“Under the Constitution, states do not regulate interstate commerce—the federal government does,” said Attorney General Jeff Sessions in a press release. The release also accused California of unlawfully imposing “burdensome state regulations on the free Internet.”

Sponsored by Sen. Scott Weiner (D–San Francisco), the law aims to reimpose the Obama-era net neutrality rules, which the Federal Communications Commission (FCC) repealed this year with its Restoring Internet Freedom order.

California is hardly the first state to take this step. Oregon, Washington, and Vermont have passed similar state-level net neutrality bills, and governors in six states have issued executive orders imposing net neutrality–like requirements on ISPs that contract with the state government.

But California’s bill is exceptionally sweeping. Its restrictions on Internet Service Providers (ISPs) include bans on zero-rating (offering certain content or applications for free), paid prioritization (letting consumers pay more for faster download speeds for certain content), or otherwise blocking, slowing down, or speeding up internet traffic because of its content, source, or destination.

Many of these regulations directly conflict with the “light-touch” approach to internet regulation spelled out in the Restoring Internet Freedom order. The order also included a provision preempting state and local net neutrality laws. The Justice Department’s lawsuit argues that S.B. 822 therefore “is invalid under the Supremacy Clause and is preempted by federal law.”

That should be a pretty straightforward case for the federal government to make, says Tom Struble, an attorney and technology policy expert with the R Street Institute. He expects the feds’ lawsuit against California to serve as a vehicle for overturning the other state net neutrality laws as well.

“Because California’s [net neutrality law] went the furthest, I think the [Justice Department] was waiting for them to pass that one because it makes the easiest case to win,” Struble tells Reason. “I think they’re going to win the case. I think it’s pretty clear the law is illegal, at least two times over, if not three or four.”

Defenders of state-level net neutrality laws argue that the FCC, by choosing not to impose certain regulations on how ISPs treat the content on their networks, has opened up a space that allows states to act.

Washington state Rep. Brian Hansen (D–Bainbridge Island), author of Washington’s net neutrality law, told Reason last year, “The FCC is declaring that a certain set of federal statutory provisions do not give it the authority to regulate standards of conduct on the internet. Yet somehow, as if by magic, that same statute gives them the authority to preempt state attempts to regulate standards of conduct on the internet. I’m not sure how that can coexist.”

Struble rejects this premise, arguing that the FCC did not abdicate its own authority to regulate broadband internet by repealing the Obama-era rules. Rather, he says, the FCC was merely switching from a more regulatory approach to a less regulatory one, which does nothing to impact its ability to preempt conflicting state laws.

Meanwhile, the Dormant Commerce Clause forbids a state from discriminating against out-of-state companies, or otherwise unduly burdening interstate commercial activity without a strong state interest in doing so, regardless of what the federal regulatory framework is.

By banning things like zero-rating—something mobile service providers are already offering in California—S.B. 822 imposes just such an undue burden on interstate commerce, argues Struble. Even the Electronic Frontier Foundation, which backs net neutrality, has said that state-level net neutrality regulations are vulnerable to challenges on Dormant Commerce Clause grounds.

The obvious legal problems with California’s net neutrality law make it as much a political statement against the Trump administration as it is a seriously regulatory proposal.

The law’s defenders have certainly been happy to raise the #resistance flag in response to the lawsuit.

“Sessions and his boss Donald Trump aren’t satisfied with the federal government repealing net neutrality. In their world, *no one* is allowed to protect an open internet,” said Weiner in a statement, adding that California had been “down this road before” in successfully fending off Justice Department lawsuits about its sanctuary city policies. “California fought Trump and Sessions on their immigration lawsuit—California won—and California will fight this lawsuit as well.”

This anti-Trump zeal might be good for rallying progressive activists, but appears unlikely to save S.B. 822 from the legal challenge.

Kanye West, the Trump- and Kaepernick-loving rapper, seems to take pleasure in bridging partisan divides in the most controversial ways possible. Yesterday he put on a red MAGA hat and Tweeted this:

this represents good and America becoming whole again. We will no longer outsource to other countries. We build factories here in America and create jobs. We will provide jobs for all who are free from prisons as we abolish the 13th amendment. Message sent with love pic.twitter.com/a15WqI8zgu

— ye (@kanyewest) September 30, 2018

Cue the outrage. This time around, West’s critics include Captain America star Chris Evans, Arrested Development actor David Cross, and Matter of Fact anchor Soledad O’Brien. The general sentiment seems to be: Why abolish the amendment that abolished slavery? “Is there making sense of Kanye West’s Maddening Slavery Tweet?” blares Esquire‘s headline. Others, such as singer Lana Del Rey, just couldn’t get past the rapper’s support for Trump.

But it shouldn’t have been hard to discern West’s meaning, even if he expressed it in a confusing way. As he later clarified, he doesn’t want to kill the whole 13th Amendment—just the passage that still allows involuntary servitude “as punishment for crime whereof the party shall have been duly convicted.”

Without that change, he writes, the amendment allows “slavery in disguise.”

In the years after the Civil War, many black convicts were forced to participate in “convict leasing” programs, where their unpaid labor benefitted private companies. Such programs no longer exist, but as Reason‘s C.J. Ciaramella noted in August, many states still force inmates of all races to work for nothing or close to it. The Marshall Project reports that “the average pay for a prisoner working a job in a state prison facility is 20 cents an hour.” In Texas, Georgia, and Arkansas, inmates aren’t paid at all for their labor.

When inmates in more than a dozen states went on strike in August, their demands included “an immediate end to prison slavery.” Contrary to popular opinion, “the 13th Amendment didn’t abolish slavery,” Amani Sawari, a spokesperson for the strikes, told Vox at the time. “It wrote slavery into the Constitution.”

Kanye West isn’t the first rapper to address this. Killer Mike covered the issue in his 2012 song “Reagan”:

‘Cause free labor is the cornerstone of U.S. economics
‘Cause slavery was abolished, unless you are in prison
You think I am bullshitting, then read the 13th Amendment
Involuntary servitude and slavery it prohibits
That’s why they giving drug offenders time in double digits.

And in 2016, the Oscar-nominated documentary 13th explored how inmates are punished with forced labor. That said, 13th director Ava DuVernay doesn’t seem to be a big fan of West’s views on the subject.

It’s possible West’s red hat served as a red cape that distracted people from what he was saying. The timing also didn’t help, as the post came the day after West defended Trump on the Saturday Night Live stage.

If nothing else, West does us a service by reminding us that a person’s views do not have to be—and, outside the professional political world, often aren’t—a perfect fit with any political party’s. It may seem odd on the cable news channels to support Donald Trump and criminal justice reform at the same time, but the world is larger than the cable news channels.

It’s happened again and again—about 250,000 times since 2016, in fact. A patient arrives at a Veterans Affairs hospital for a CAT scan, an ultrasound, or some other diagnostic procedure. Then he or she discovers that the service had been cancelled. And no one is sure why.

Jeff Dettbarn, a radiology technologist at a VA hospital in Iowa City, started documenting such cancellations early last year. Since then, VA Inspector General Michael Missal has announced an audit for nine VA medical centers in Iowa, Florida, North Carolina, Ohio, Texas, Colorado, Nevada, and California. The audit will “determine whether VA processed radiology requests in a timely manner and appropriately managed canceled requests,” Missal tells USA Today.

What happened? Lisa Bickford, an administrative staffer at Dettbarn’s hospital, has testified that the hospital’s chief radiologist instructed the employees to “clean” incomplete orders in an effort to address a growing backlog. Thousands of diagnostics orders were then cancelled over the span of a few weeks; the national VA’s cancellation guidelines may have been violated in the process. In a video interview with USA Today, Dettbarn says he saw as many as 30 to 50 poorly justified cancellations issued at a time.

Bryan Clark, a spokesperson for the hospital, insists to USA Today that the failure to follow the guidelines occured only in “small number of instances.”

Dettbarn now faces disciplinary action. Neither the hospital nor the agency is willing to identify his alleged offense unless Dettbarn gives them written permission to do so, and Dettbarn has not given them that permission. He has, however, speculated to USA Today that the move was retaliatory.

Officials from the United States, Mexico, and Canada inked a rewrite of the North American Free Trade Agreement (NAFTA) last night. President Donald Trump today touted the results as “one of the greatest deals” ever made—a sharp contrast with his years of criticism of the old NAFTA. But while the new agreement makes significant changes to how cars and trucks can pass across borders tariff-free, it otherwise amounts to a cosmetic overhual of the 24-year-old trade deal.

One of those cosmetic changes—an apparently important one for Trump, based on his Twitter feed—is a new name for the agreement. Going foward, it will be known as the United States Mexico Canada Agreement (USMCA). Congress will have 60 days to review the new agreement before holding an up-or-down vote on it.

In the new deal, the United States has the power to put tariffs on cars imported from Canada and Mexico, although the first 2.6 million automobile imports would be tariff-free. And beginning in 2020, when the USMCA is supposed to take effect, cars and trucks must have 75 percent of their component parts manufactured in North America in order to move across borders tariff-free. That’s a significant increase from the 62.5 percent threshold required under NAFTA.

Another new rule requires that auto workers in all three countries must earn at least $16 per hour—about three times as much as the typical Mexico automaker now earns, according to The Washington Post‘s Heather Long. While that rule is meant to protect American automaking jobs from being shifted south of the border in search of cheaper labor, it also amounts to a continent-wide minimum wage that will discourage automakers from building cars in North America.

Under current World Trade Organization rates, the United States does not impose auto tariffs of more than 2.5 percent (although light trucks are subject to higher tariffs). That means it may end up being cheaper for carmakers to build overseas, ship cars into the United States, and pay the tariff rather than paying the higher wages to North American workers.

“I think this creates a weird incentive,” says Clark Packard, a trade policy analyst at the R Street Institute. “Companies could instead just forgo duty-free trading under USMCA and instead pay the 2.5 percent WTO rate to ship into the United States.”

The so-called “rules of origin” requirements and the new wage mandates might undercut the Mexican auto industry. The Mexican government estimates that about 30 percent of cars currently made there would not meet the new requirements.

It may also give the Trump administration reason to pursue higher tariffs against imported cars. If automakers respond to the new deal by choosing to build more cars overseas and simply pay the 2.5 percent tariff, Trump may try to raise that tariff to bully those same automakers back into the North American labor market, warns Chad Bown, an analyst from the Peterson Institute for International Economics, a trade think tank.

Either way, American consumers will likely end up paying higher prices for new cars.

“Tighter rules of origin, potentially combined with import restrictions on nonconforming autos, would mean higher consumer prices for Mexican or American-made cars,” Bown wrote last month after the new rules of orgin requirement were unveiled. “Such a price increase would trigger a natural incentive for Americans to switch to relatively cheaper cars assembled outside of the region that are not subject to Trump’s costly new regulations.”

The deal does not remove steel and aluminum tariffs on imports from Canada and Mexico. At a press conference today, Trump said those tariffs would be part of future discussions between the three nations.

The best part of the USMCA may be the fact that it exists at all. After entering office with a promise to tear up NAFTA, Trump has seemingly been convinced of the agreement’s value. Tariffs and automaking regulations aside, the new agreement will keep the economies of the U.S., Canada, and Mexico linked. That’s undeniably a good thing. Since NAFTA was inked in 1994, U.S. exports have tripled and the total value of goods traded between NAFTA partners has jumped from $293 billion in 1993 to about $1.1 trillion in 2016, according to the Congressional Research Service.

There’s still a ways to go before this rewrite of the three-way deal is finalized. Nothing will be finished until after the midterm elections, though reaching a deal on Sunday night does allow the USMCA to be wrapped before Mexico’s government changes hands on December 1.

The bottom line? It’s marginally worse than NAFTA, but it mostly retains the status quo. “We spent a lot of time and political capital,” says Packard, “to essentially tinker around the edges.”

In California, you now actually have to participate in a murder to be charged with murder.

Over the weekend, Gov. Jerry Brown signed S.B. 1437, a bill that significantly restricts the application of what’s known as the “felony murder rule.” Under this rule, accomplices could be charged with murder whenever somebody is killed in the commission of a felony crime, even when they played no role in these deaths, sometimes even if they weren’t at the scene of the murder.

In short, there are people in prison for murder who did not commit “murder” under any logical definition of the word. The Los Angeles Times reports that 72 percent of women behing bars in California for felony murder did not, in fact, commit the killing for which they’re now serving life sentences.

Take the case of Bobby Garcia. He and some friends robbed a man for gas money when he was in high school. Somebody stabbed the man to death. When the man was stabbed, Garcia says he was waiting in the car to flee the robbery. But under California law, that didn’t matter: He was charged not just for his role in the robbery but with murder, as though he had committed the slaying himself. He wound up serving 21 years. Now a free man, he’s been lobbying for these changes.

Under S.B. 1437, co-sponsored by a Democrat and a Republican in the state Senate, a person can only be convicted of felony murder if he or she actually participated in the killing, acted with intent to assist the killer, or was a “major participant” in the underlying felony and acted “with reckless indifference to human life.”

The bill also allows for those who have been previously convicted for these felonies to get those convictions tossed and be resentenced. This may affect between 400 and 800 people currently serving prison time, according to the Sacramento Bee.

Those numbers might seem low, given that more than 120,000 people are serving time in state prisons in California. But keep in mind the prospect of a felony murder life sentence has also been a tool to browbeat defendants into plea deals. That’s what happened with Garcia. Changing this rule means one less way for prosecutors to intimidate defendants.

Unless one of their buddies killed a cop. S.B. 1437 has one big exception: It doesn’t apply when the victim is a police officer. If one of your partners in crime panics kills a cop, you’re all getting charged with murder.

Germany’s most prominent right-wing nationalist party is trying to attract Jewish voters by stoking the flames of anti-Islamic sentiment. The twist: Some of the party’s leaders have a history of offending the very people they’re trying to reach.

The Alternative for Deutschland (AfD) claims it’s not anti-Semitic. But in May, the party confirmed that some of its local politicians exchanged anti-Semitic messages in a WhatsApp group chat. In June, AfD co-leader Alexander Gauland downplayed the Nazi era, claiming that “Hitler and the Nazis are just a speck of birdshit in over 1,000 years of successful German history.” And last year AfD regional leader Björn Höcke said that Germany needed to do “a 180-degree reversal on the politics of remembrance” of the Holocaust. Referring to Berlin’s Holocaust Memorial, he claimed that “Germans are the only people in the world that have planted a monument of shame in the heart of their capital.”

But like many nationalist parties, AfD tends to back Israel. And now it’s trying to appeal to Jews by arguing that the two groups share a common enemy: Islam. In the town of Offenbach, the AfD is launching a new association called Juden in der AfD, or Jews in the AfD.

“The AfD is the only party in the Federal Republic that makes anti-Semitism toward Jews by Muslims a topic without trivializing it,” says Dimitri Schulz, the initiative’s Jewish founder, according to ABC News. Schulz also decried the “mass immigration of young men from Islamic culture,” and particularly their “anti-Semitic socialization.”

In a Facebook post, the AfD highlights several acts of anti-Semitism perpetrated by Muslims. Anti-Semitism is “normal” for those who live in Arab countries, Joachim Kuhs, a Christian AfD leader, argues to Deutsche Welle. “Why should they be different when they get here?”

The AfD’s pitch likely won’t work for most of Germany’s roughly 100,000 Jews. Already, a host of Jewish organizations have warned against joining the party. The AfD, they warn, simply wants to further its own misguided xenophobic goals. They’re right: The best solution to Germany’s migrant crisis, as Jenipher Camino Gonzalez explained in a July piece for Reason, is to loosen work restrictions so immigrants can actually find good jobs.

ABC notes that anti-Semitic attacks do appear to be on the rise in Germany. “But,” it adds, “93 percent of the perpetrators are far-right Germans.” Evidently, AfD’s fans contribute far more to the problem than AfD’s foes.

Two of the major economics stories Americans tell about ourselves don’t seem to be true. Yet we are really enamored with the ideas that income inequality is on the move, separating the wealthy from the rest of us (“we” rarely consider ourselves part of the wealthy), and that the middle class is on the verge of extinction (as Pew found recently, fully 47 percent of people in households making over $100,000 a year consider themselves “middle class”).

Mark J. Perry of the American Enterprise Institute and the University of Michigan (Flint) has compiled Census data that refute these popular claims. “The Gini index measure of income dispersion reveals that there has been no significant trend of rising income inequality’ for US household incomes over the last quarter century,” he writes. “The Gini index in 1993 was 0.454 and last year it was 0.482, the same as in 2013, and this statistical measure of income inequality has also shown remarkable stability for the last several decades in a narrow range between 0.46 and 0.48.”

There is, of course, an argument to be made that existing income inequality is too vast (and it is indeed larger than it was in the 1970s, both in America and throughout most advanced economies). But as Perry notes, that isn’t the case being advanced:

We hear all the time about “rising income inequality” in America (there are more than 100,000 Google search results for that term), about “the rich getting richer and the poor getting poorer,” the “stagnant or disappearing middle class,” all of the recent income gains going to the rich,” the lack of income mobility and other narratives of pessimism. In a December 2013 speech, President Obama described rising income inequality as the “defining challenge of our time” and promised that for the rest of his presidency, he and his administration would focus all of their efforts to stop the increase in income inequality. And yet, the data in today’s Census Bureau tell a much different story. [emphasis in original.]

Perry notes that median household income in 2017 reached $61,372, a new record and the fifth consecutive year of increase. When you adjust for the smaller sizes of households, things look better still:

Compared to 1975, the average household income per US household member has increased by 74% from $19,500 to $34,000, while the median household income per person has increased by 45% from $16,600 to $24,160. Without adjusting for household size, average household income increased by only 50% since 1975 (vs. 74% adjusted for average household size) and median income increased only 25% (vs. 45%), demonstrating the importance of adjusting for changes in household size when comparing median household incomes over time.

There’s also little doubt that standards of living have improved dramatically over time. By virtually any measure, food today is better than it was in the past, and cheaper too. The same goes for virtually any consumer good, with exceptions for health care and education (which are both more expensive when adjusted for inflation) and, in some part of the country, housing as well. But even there, there are many improvements. Anyone who wears glasses can tell you that frames keep getting more expensive and stylish but lenses keep getting thinner, lighter, and more scratch-resistant while staying about the same in nominal dollars.

Perry’s data also tells a welcome story about the “vanishing” middle class. To the extent that it’s shrinking, it’s because more people are making more money, not less.

There are more charts and discussion at Perry’s invaluable Carpe Diem blog.

It’s self-evident (maybe) why politicians want to talk about increasing income inequality and a vanishing middle class. They posit themselves as solutions to such problems, either via regulation and redistribution (on the left) or champions of much-needed economic vitalism (on the right). The media are often willing to play along, perhaps sensing a good story or perhaps simply being bowled over by agenda-driven research. (The latter seems to be the case in Time‘s recent ridiculous cover package about teachers needing to sell blood plasma simply to get by.) People getting poorer all the time is a variation on “if it bleeds, it leads.”

But why are the rest of us so quick to buy in to the idea of eroding standards of living and fairness? At least since 1995, Reason has run some variation of the data Perry pulled together (read “The Good Old Days Are Now“) and they almost always show progress. There are times, such as during the financial crisis, when earnings and assets absolutely took a hit, but what’s amazing is how resilient the declinist narrative is even in relatively good times. We really, really want to be worse off than we are.

Economists such as Cornell’s Robert Frank argue that humans seek relative status above virtually anything else, so that if we’re all better off, that doesn’t really make us feel any better. That may be part of an answer, but it’s odd then that objective increases in well-being rarely get discussed. Even increases in income undersell total compensation. As Reason‘s Veronique de Rugy has noted, fringe benefits have increased far more over the past 40 years than wages. We probably don’t feel richer simply because the value of our employer-provided health insurance has increased by 60 percent.

Perhaps it’s an age thing: You don’t really appreciate what you have until you reach a certain age and the stories we tell ourselves are mostly written by people too young (or too old) to fully grasp social reality? Or perhaps the data that Perry and others pull are misleading, falling into the category on knowing the price of everything but the value of nothing?

The notions that the “middle class” is on the verge of extinction and that only the super-rich are making bank aren’t new, but we are in a particularly intense moment of unreality when it comes to discussions of politics and policy. Trying to get a firm grasp on how people are actually doing is now even more urgent than it otherwise would be.

The American Civil Liberties Union has decided to oppose the nomination of Brett Kavanaugh to the Supreme Court, citing the allegations of sexual misconduct against the embattled judge.

This is an unusual step for the ACLU, which almost never takes a position on judicial nominations. In its 98-year history, the civil liberties organization’s national board has only come out against a specific Supreme Court candidate in four cases.

“As a nonpartisan organization, the ACLU does not oppose Judge Kavanaugh based on predictions about how he would vote as a Justice,” explains ACLU President Susan Herman in a statement. “We oppose him in light of the credible allegations of sexual assault against him.”

The Senate Judiciary Committee voted on Friday to advance Kavanaugh’s nomination with the understanding that the FBI would conduct a limited investigation of the claims made by Christine Blasey Ford, a psychology professor who has accused Kavanaugh of attempting to rape her at a high school party 35 years ago. Kavanaugh has emphatically denied the accusation.

As of yet, there is no evidence that corroborates Ford’s story, and other alleged attendees of the party have failed to back up her account. But Kavanaugh’s evasive and misleading statements about his teenage drinking have made it easier to believe that he is hiding something.

Thus I can understand why the ACLU would make an exception in this case—there is good reason to be concerned about Kavanaugh’s character, though absent additional information it is impossible to say with any certainty what actually happened at that party 35 years ago. (Kavanaugh is also accused of other instances of sexual misconduct in his high school and college years, but these allegations are more flawed than Ford’s.)

But it would be easier to accept the ACLU’s anti-Kavanaugh stance as a one-off move if the organization had not done so much recently that makes it appear like it’s mutating into a generic progressive organization. The ACLU’s Twitter feed recently seemed to endorse a catcalling ban, and the group’s Michigan chapter sent a letter to Walmart imploring the company to stop selling Redskins merchandise. (The letter heavily implied that continuing to stock Redskins gear was contributing to a hostile educational environment in a local school, and thus possibly violating the law.) Former board member Wendy Kaminer has expressed serious concerns that the ACLU is backpedaling on some of its foundational free speech commitments in cases where the speech in questions is offensive to the progressive left. (Former ACLU president Nadine Strossen had a different perspective.)

The ACLU has done so much to protect the civil liberties of all kinds of people. It would be a shame if it became just another left-of-center group, primarily interested in rights violations that affect those in good standing with intersectional progressivism. The decision to oppose Kavanaugh might be perfectly defensible on its own, but it certainly adds to this impression.

What do liberal Supreme Court Justice Sonia Sotomayor and libertarian-leaning 5th Circuit Judge Don Willett have in common? They both despise the modern SCOTUS doctrine of qualified immunity, which shields police officers and other government officials from being sued over violations of constitutional rights.

In Harlow v. Fitzgerald (1982), the U.S. Supreme Court held that government officials are entitled to immunity from civil suits so long as the conduct that they’re being sued over “does not violate clearly established statutory or constitutional rights.”

What that means in practice, Judge Willett observed in a 2018 opinion, is that “public officials [can] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” Justice Sotomayor has offered a similar view. The Supreme Court’s “one-sided approach to qualified immunity,” she wrote in a 2018 case, “transforms the doctrine into an absolute shield for law enforcement, gutting the deterrent effect of the Fourth Amendment.”

Case in point: In its 2017 decision in Latits v. Phillips, the U.S. Court of Appeals for the 6th Circuit concluded that a Michigan police officer violated the Fourth Amendment when he shot and killed a fleeing suspect. But the court then proceeded to award qualified immunity to the officer anyway for his unconstitutional use of deadly force. “Although we now hold that [Officer Lowell] Phillips’s conduct fell outside the bounds of the Fourth Amendment,” the 6th Circuit said, “controlling authority at the time of the events had not clearly established the rights we identify today.”

“The majority spends the bulk of its opinion explaining how Officer Phillips’ use of deadly force was objectively unreasonable,” responded 6th Circuit Judge Eric Clay in dissent. “In the final stretch, however, the majority abruptly shifts gears to hold that [the plaintiff’s] constitutional rights were not clearly established…. In so holding, the majority has created a nearly impossible barrier for plaintiffs seeking to vindicate their rights against government officials.”

Something has gone seriously wrong in our criminal justice system when the courts are running this kind of interference on behalf of blatantly unconstitutional police conduct. Here’s hoping that the legal position championed by Sotomayor, Willett, and Clay eventually triumphs over today’s destructive and preposterous qualified immunity regime.