Originalism and the Suspension Clause in DHS v. Thuraissigiam

A few moments ago, I blogged about Department of Homeland Security v. Thuraissigiam. This case turned on the scope of the Suspension Clause. Justice Alito wrote the majority opinion. Justice Sotomayor wrote the dissent. They disagree, vigorously, about the proper role history should play when interpreting the Suspension Clause.

The majority required the Thuraissigiam to identify a specific case that supports his claim for relief. A close analogy is not enough.

Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here. The dissent instead contends that “the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent,” and then discusses cases that are not even close to this one.

In dissent, Justice Sotomayor writes that Boumediene does not require such a close historical fit:

But as the Court implicitly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never demanded the kind of precise factual match with pre-1789 case law that today’s Court demands.

For sure, Justice Kennedy’s framework in Boumediene was far more fluid. Justice Sotomayor writes:

But this Court has never rigidly demanded a one-to-one match between a habeas petition and a common-law habeas analog. Boumediene is even clearer that the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent. There, the Court concluded that the writ applied to noncitizen detainees held in Guantanamo, despite frankly admitting that a “[d]iligent search by all parties reveal[ed] no certain conclusions” about the relevant scope of the common-law writ in 1789.… But crucially, the Court declined to “infer too much, one way or the other, from the lack of historical evidence on point.” Instead, it sought to find comparable common-law habeas cases by “analogy.”

I understand Justice Sotomayor’s frustration. I don’t think this decision is consistent with Boumediene. But Boumediene is no longer a viable precedent. Justice Kennedy is gone, and Chief Justice Roberts sees no institutional need to retain it. It will be whittled away.

Justice Sotomayor describes the majority’s test as an exercise in futility. Immigration law is largely a novel invention. It would be impossible to find any relevant caselaw:

To start, the Court recognizes the pitfalls of relying on pre-1789 cases to establish principles relevant to immigration and asylum…. The Court nevertheless seems to require respondent to engage in an exercise in futility. It demands that respondent unearth cases predating comprehensive federal immigration regulation showing that noncitizens obtained release from federal custody onto national soil. But no federal statutes at that time spoke to the permissibility of their entry in the first instance; the United States lacked a comprehensive asylum regime until the latter half of the 20th century. Despite the limitations inherent in this exercise, the Court appears to insist on a wealth of cases mirroring the precise relief requested at a granular level; nothing short of that, in the Court’s view, would demonstrate that a noncitizen in respondent’s position is entitled to the writ. See also Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens (1998) (noting the inherent difficulties of a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding).

In response, Justice Alito faults Justice Sotomayor for scoffing at originalism:

The dissent reveals the true nature of its argument by suggesting that there are “inherent difficulties [in] a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding.” But respondent does not ask us to hold that the Suspension Clause guarantees the writ as it might have evolved since the adoption of the Constitution. On the contrary, as noted at the outset of this discussion, he rests his argument on “the writ as it existed in 1789.”

Justice Alito also rejects a “living” model of the Suspension Clause, which Justice Breyer advocated for in his concurrence:

What the dissent merely implies, one concurring opinion states expressly, arguing that the scope of the writ guaranteed by the Suspension Clause “may change ‘depending upon the circumstances’ ” and thus may allow certain aliens to seek relief other than release. Post (BREYER, J., concurring in judgment) (quoting Boumediene). But that is not respondent’s argument, and as a general rule “we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” United States v. Sineneng-Smith (2020).

Justice Sotomayor has produced another impressive historical dissent, akin to her Promesa dissent.

I was surprised Justice Kagan joined Justice Sotomayor’s dissent. Here, Kagan is throwing down a gauntlet against originalism. I would think the savvier move would be for her to join Breyer’s more moderate dissent.

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Where does DHS v. Thuraissigiam stand?

Today the Supreme Court decided Department of Homeland Security v. Thuraissigiam. I have now had a chance to read the entire 98-page decision. We have edited the case down to 19 pages for the Barnett/Blackman supplement. Please e-mail me if you’d like a copy: josh-at-josh-blackman-dot-com.

Between 2004 and 2008, the Supreme Court decided several cases involving Guantanamo Bay detainees. Since Boumediene v. Bush (2008), the Supreme Court has largely ignored Guantanamo Bay. Thuraissigiam is the first major decision to discuss the Suspension Clause in nearly a decade. I’m on the fence whether it warrants a place in our constitutional law casebook.

On the plus side, the composition of the Court has changed significantly since Boumediene was decided. Critically, Justice Kennedy was replaced by Justice Kavanaugh. The majority reads Boumediene quite narrowly. In dissent, Justice Sotomayor accuses Justice Alito of ignoring that 5-4 decision. She’s probably right. Thuraissigiam provides a current, and accurate statement of the Court’s suspension clause jurisprudence.

Also, this case is far more relevant to attorneys today. Few lawyers will ever work on detainee rights. But many law students will work on immigration law. This case is significant. Moreover, the Due Process Clause analysis will likely prove more important than the Suspension Clause analysis. We may soon see the Trump Administration release the long-awaited expedited removal policy. I first blogged about it in February 2017, and tweeted about it in July 2019.

On the negative side, it isn’t clear how “canonical” this case will be. The doctrine may be limited to the unique contexts of aliens who crossed the border, and were immediately apprehended. Justice Sotomayor points out how the Ninth Circuit will likely interpret the case:

Perhaps recognizing the tension between its opinion today and those cases, the Court cabins its holding to individuals who are “in respondent’s position.” Presumably the rule applies to—and only to—individuals found within 25 feet of the border who have entered within the past 24 hours of their apprehension. Where its logic must stop, however, is hard to say.

26 feet + 25 hours= Due Process.

But it is a good case to study. I’ll write some more about it.

 

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The Blue State Jobs Depression

The Blue State Jobs Depression

Tyler Durden

Thu, 06/25/2020 – 19:10

Authored by Stephen Moore via RealClearPolitics.com,

The latest Department of Labor employment data confirm that when it comes to the economy, America is two nations: red and blue.  As the post-coronavirus shutdown era begins, blue states are losing jobs at record paces and red states are starting to gain them.

Here is what the data is telling us: 10 states had unemployment rates in May above 15%.  They are all states with Democratic governors, with the exception of deep-blue Massachusetts with its liberal Republican governor, Charlie Baker. 

Ranked from highest to lowest they are Nevada (25.3%), Hawaii (22.6%), Michigan (21.2%), California (16.3%), Rhode Island (16.3%), Massachusetts (16.3%), Delaware (15.8%), Illinois (15.2%), New Jersey (15.2%), Washington (15.1%). 

The five states with the lowest unemployment rates are all red states – most of which never shut down at all. These are Nebraska (5.2%), Utah (8.5 %), Wyoming (8.8%), Arizona (8.9%), and Idaho (8.9%). 

This is exactly as Arthur Laffer and I predicted in a study we conducted back in March on the economic effects of lockdowns.  States with very strict business shutdown and stay-at-home orders would be facing a much tougher recovery period than states that never shut down, like Utah and Wyoming, and states that rapidly reopened, such as Arizona.  This would be a bifurcated red state, blue state recovery – and so it is, so far.

This is not a coronavirus recession. It is a blue state lockdown recession.  Democrats say they have shut down their economies to maintain the safety of their citizens.  But that is a stretch.  Studies are now finding that the negative health effects from the lockdown (suicide, delayed treatments for cancer and heart problems, depression, spousal abuse, alcohol and drug overdoses, to name a few) could easily match the saving of lives from lockdowns. 

But there is a much bigger problem with this argument.  It is factually untrue that blue states did a better job than red states in keeping their citizens safe. They didn’t.  The 10 states with the highest death rates from coronavirus (as a percentage of the state population) are all states with Democratic governors.  A blue state resident was twice as likely to die from the virus as a red state resident even though the red states were not heavy-handed in locking down their economies.  (Population density likely factored in as well.)

The tragedy for blue state America is that these states – especially in the Northeast and Midwest – were already seeing major outmigration of families, businesses, and capital before the pandemic.  The blue state governors’ mishandling of the crisis has only put these states in deeper holes. 

Of course, the Democrats are now saying that the caseloads are climbing in the red states. That’s true, but caseloads don’t tell us much of anything.  If going outside and gathering in public while ignoring social distancing orders is the reason for the increase in cases (and in some cases hospitalization rates) then we would expect to see a surge in cases in New York, Los Angeles, Chicago, Portland, Seattle, Minneapolis, and Washington, D.C.  That is where the largest, and most prolonged, George Floyd protests took place.

So the blue states have not only failed to keep their citizens safe, they’ve ruined their economies as well. Democrats are promising to make America look more like New Jersey, Washington, and California. God forbid.  The latest annual data from United Van Lines shows that the seven states with the most outbound traffic were: 

1) New Jersey, blue

2) Illinois, blue

3) New York, blue

4) Connecticut, blue

5) Kansas, blue

6) Ohio, red

7) California, blue 

The toxic combination of coronavirus, lockdowns, riots, poor city and state leadership, and massive budget deficits are making the blue states bleed red.

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Illinois Gun Permit Applications Soar 500% As Frightened Liberals Embrace 2nd Amendment

Illinois Gun Permit Applications Soar 500% As Frightened Liberals Embrace 2nd Amendment

Tyler Durden

Thu, 06/25/2020 – 18:50

Over 40,000 Illinois residents applied for a gun permit over a two-week period this month, a jump of more than 500% over this time last year according to Illinois State Police.

Take a full glass of coronavirus, shake in a shot of riots and another of this defund police notion, and everything goes crazy,” gun shop owner Mark Glavin told the Chicago Tribune. “Not to mention the backlog on background checks.”

The state’s mandatory 72-hour background check has stretched to more than a week for some of Glavin’s customers, putting Illinois residents in the same boat as Californians – who have a 10-day wait before they can take possession of recently bought firearms.

The firearms services bureau of the Illinois State Police is taking an average of 94 business hours — not counting holidays, weekends, the day the gun is purchased, or the day the sale is approved or denied — to process background checks, roughly a day longer than usual, according to state police spokeswoman Beth Hundsdorfer.

The bureau is responsible for issuing firearm owner’s identification cards and concealed carry licenses, as well as conducting background checks for licensed gun dealers when a sale is made. Its work started to pick up in March and has spiked in June, Hundsdorfer said. –Chicago Tribune

Between June 1 and June 17, there were over 42,089 applications for FOID cards vs. just 7,000 during the same period last year – an increase of 501%. Putting that into further context, there were 48,194 applications between December, January and February combined.

“We know that traditionally there’s an uptick in gun purchases around elections and major tragedies,” said DePaul University associate professor of social work, Noam Ostrander.

“There’s two big predictors of gun ownership — not sport-type rifle owners — but among new gun owners usually, and that is perceived risk of victimization and then a belief that the world is a dangerous place,” Ostrander continued. “And if we dig into that second one, right, the world does look like a dangerous place right now.”

Des Plaines gun store and range owner Dan Eldridge says that half of the customers scrambling to arm up are first-time buyers.

“The numbers I saw from the National Shooting Sports Foundation … said 40% of respondents to (store) surveys were new, first-time buyers. And of those, 40% are female — 40% of the 40%,” said Eldridge. “We’re tracking 150% of a typical May in firearms sales … and that’s with being open by appointment only.”

Eldridge also noted that sales of defensive ammunition, such as hollow-point bullets, were 10x as high.

“What is significant is a whole lot of people who have firearms for their house or self-defense are saying, ‘I’d better have some ammunition for this thing or it’s not going to do me any good.’” he added.

Liberals embracing the 2nd Amendment

University of Illinois at Chicago associate professor of Political Science, Alexandra Filindra, says that there’s plenty of research and anecdotal evidence that many of the white, first-time gun buyers identify as politically progressive.

“It’s not so much a security concern, though they may tend to want to misidentify it as fear,” said Filindra. “But typically people who are highly anxious and afraid tend to be more supportive of gun control.”

A 38-year-old man from Dixon — who didn’t want his name used, citing employment reasons — described himself as “a very liberal Democrat” who for decades has been “for most forms of gun control politically.” But since March, he’s been waiting for his first gun permit to arrive so he can keep his family safe, he said.

My views have recently changed, and I have accepted that the Second Amendment provides for the personal ownership and use of a firearm,” he said in an email. “The recent social unrest of a divisive president, the pandemic and dramatic rise in unemployment, and the more recent social unrest because of the way we police in this country have all been reasons that have prompted my recent application.” –Chicago Tribune

Concealed Carry gun instructor and owner of Safer USA, David Lombardo, says he’s had several callers recently who have disclosed their political beliefs while asking him for private one-on-one training because “they don’t want anyone to know they’re doing the training, let alone going to buy a firearm.”

“I have seen the emergence of a new class of students seeking training: anti-Second Amendment liberals,” he said.

Carrie Lightfoot, founder of the popular shooting blog The Well Armed Woman, said there’s nothing hypocritical about changing your views when the world around you is changing. And she’s not surprised women make up a good portion of these new gun buyers.

Women have always understood they are at a disadvantage when it comes to a male aggressor who will likely be taller, heavier and stronger. Now we are “all shaken to our core” by world events, which is why “it is only natural” women are arming themselves, she said.

I am seeing women come to gun ownership who literally just weeks or months ago were opposed to people owning guns personally,” Lightfoot said. “Sometimes, it is in moments of personal need and through our personal concerns that our life’s context changes.” –Chicago Tribune

Lots of guns, not a lot of training

DePaul’s Ostrander points out what few are saying; first-time gun owners are eight-times more likely to accidentally shoot themselves vs. those in gun-free homes, because they lack training.

“If they feel safer having 5 pounds of metal in their home, then at least let’s try to get some basic instruction going. Some standard gun safety,” he said.

Read the rest of the report here.

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Really Bizarre Things Are Happening All Over The Globe

Really Bizarre Things Are Happening All Over The Globe

Tyler Durden

Thu, 06/25/2020 – 18:30

Authored by Michael Snyder via The End of The American Dream blog,

Just when you think that 2020 has been filled with enough trouble, even more stuff starts happening.  Coming into this week, we were already dealing with a new COVID-19 surge which has pushed the number of daily cases to the highest levels we have seen so far, a global economy which is in the process of imploding all around us, massive civil unrest in U.S. cities from coast to coast, and giant swarms of locusts that are wiping out farms all the way from eastern Africa to parts of India.  Unfortunately, now we have several more items to add to our growing list.

Let’s start by talking about an alarming new outbreak of locusts.  The following comes from a British news source

Dramatic footage captures an “astonishing” swarm of locusts swarm through farmland and destroy crops.

The short-horned grasshoppers are capable of devouring the same amount of crops as 2,500 people would each day.

Some of you may have just read that paragraph and come to the conclusion that this is “old news”.

After all, we have been hearing about the colossal armies of locusts in Africa for months, and I have published numerous articles about that unprecedented plague.

But the news story that I just quoted wasn’t talking about those locusts.  Instead, that report was about a brand new infestation that has erupted in Argentina, and one local official is saying that he has never seen anything like it ever before.

Just like on the other side of the Atlantic Ocean, these little critters are voraciously gobbling up everything in sight, and countless farms are being destroyed.

Now these swarms are heading for Brazil, and Brazilian officials are definitely extremely alarmed.  One of my readers in Brazil sent me an article about this emerging crisis from a Brazilian news source, and the following is a quote from that article which has been translated into English…

In approximately one square kilometer they can have up to 40 million insects, which in one day consume pastures equivalent to what 2,000 cows or 350,000 people eat, Argentine agronomist Héctor Medina told Reuters.

What would you do if 40 million locusts suddenly descended on your farm?

Of course the truth is that there would be very little that you could do that would make any sort of a difference.  Just like so many other farmers around the globe, you would simply watch as all of your hard work is completely wiped out.

Meanwhile, an absolutely gigantic plume of dust from Africa has crossed the Atlantic Ocean and is about to hit the United States.  The following comes from CBS News

A massive plume of dust from the Sahara desert in northern Africa has been traversing the atmosphere, thousands of feet above the tropical Atlantic Ocean, and is now cloaking the Caribbean and closing in on the southeastern United States.

Every once in a while a dust plume from Africa can cross the ocean like this, but the monstrous one that we are witnessing right now is truly unusual.

In fact, one expert says that this is “the most significant event in the past 50 years”

“This is the most significant event in the past 50 years. Conditions are dangerous in many Caribbean islands,” Pablo Méndez Lázaro, from the University of Puerto Rico’s School of Public Health, told the Associated Press.

As this plume travels across the U.S., air quality in some areas will drop precipitously.  Some of the dust has already arrived, but a “thicker layer” is projected to starting hitting Texas on Friday

On Wednesday, the dust is forecast to move across the Gulf of Mexico toward Texas.

Thursday morning, people in places like Brownsville in Texas and Houston will likely wake up to a beautiful sunrise and a hazier than normal sky.

Forecast models show the thicker concentration blanketing most of Central America and Mexico Thursday.

This thicker layer is likely to reach Texas by Friday and then take a turn to the east. If the forecast model is right, it will move over most of the Southeast and MidAtlantic states over the weekend.

On top of everything else, the west coast is starting to shake in a major way once again.  On Wednesday, southern California was struck by a magnitude 5.8 earthquake

California residents received an emergency alert on their phones which read: “Earthquake! Expect shaking. Drop, Cover, Hold On. Protect yourself now. – USGS ShakeAlert”. The US Geological Survey (USGS) said the quake struck 17km south-southeast of Lone Pine. The tremor originated at a depth of 2.9km, with an epicenter around 17 kilometers south-east of Lone Pine.

According to a USGS interactive shake map the impact of the earthquake could be felt in the Death Valley National Park.

The earthquake has since been downgraded to 5.8 magnitude.

That quake was followed by numerous sizable aftershocks, including one that was measured to be magnitude 4.6.

Overall, there have been 2,267 earthquakes in California and Nevada over the last 7 days, and that is definitely alarming.

Farther south along “the Ring of Fire”, Mexico was hit by a magnitude 7.4 earthquake on Tuesday

A powerful earthquake struck Mexico’s southern Oaxaca region on Tuesday, killing at least five people and shaking buildings hundreds of miles away.

The 7.4-magnitude quake struck mid-morning, according to the U.S. Geological Survey. Its epicenter was off the Pacific coast about seven miles southwest of Santa María Zapotitlán, near the beach resort of Huatulco.

Very large seismic events are happening so frequently now that they barely make a blip on the news these days, and that is unfortunate because people need to wake up and understand that our planet is becoming increasingly unstable.

Here in the United States, scientists have been strongly warning us for years that we are way overdue for “the Big One” to hit California, and this is one of the things that I will be addressing in the new book that I am currently working on.

At some point there will be no more sand in the hourglass, and an unprecedented disaster will strike the west coast.  Let us pray that we still have quite a bit more time before that happens.

But nothing can stop the inexorable march of time, and the deeper we get into 2020 the crazier it gets.

Unfortunately, the truth is that this “perfect storm” is just getting started, and that means that what we have experienced up to this point is just the tip of the iceberg.

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Daily Briefing – June 25, 2020

Daily Briefing – June 25, 2020


Tyler Durden

Thu, 06/25/2020 – 18:25

Senior editor Ash Bennington and managing editor Ed Harrison break down the latest economic data amid a bullish day on Wall Street. They discuss the rising infections in states like Texas, Arizona, and Florida, and they take a data-driven look at the apparent stalling of the jobs recovery and the reversal of the durable goods slowdown. Ash looks at how peoples’ marginal propensity to spend is affecting the recovery, while Ed explores whether different asset classes are pricing in different recovery “shapes” (equities pricing in a V-shape, high-yield pricing in a Nike swoosh, and investment grade pricing in a “reverse radical”). In the intro, Nick Correa discusses what’s happening in Texas and how the virus spread undetected for several weeks before the US locked down.

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Parents Of Toddlers In Viral Video To Sue Trump, ‘Carpe Donktum’ Over Meme

Parents Of Toddlers In Viral Video To Sue Trump, ‘Carpe Donktum’ Over Meme

Tyler Durden

Thu, 06/25/2020 – 18:10

Earlier this week, Twitter permanently suspended Logan Cook – better known as President Trump’s favorite meme-maker ‘Carpe Donktum’ – over Cook’s alteration of a viral video featuring two toddlers, one black and one white, who run up to each other and hug.

In the edited clip which was tweeted by Trump, Cook mocks CNN – suggesting they would manipulate the video to portray the white baby chasing the black one.

And while Trump supporters found the clip hilarious, Twitter, Facebook – and now the parents of said toddlers – do not.

According to Forbes, the parents are suing both Trump and Cook over the video, claiming it was shared as an “advertisement and political propaganda” without permission or parental consent. Meanwhile, Twitter tagged the video as “manipulated media” before kicking Cook off the platform for repeated copyright violations.

Lawyer Ven Johnson – one of the lawyers representing the parents (who’s contributed tens of thousands of dollars to Democrats) – says that “The fact that Twitter and Facebook disabled this fake video within 24 hours of President Trump and his campaign tweeting it, coupled with Twitter permanently banning Cook, is very strong evidence that a jury will likely find that all of these people broke the law by using this video as advertisement and political propaganda.”

Facebook and Twitter usually leave controversial posts from world leaders online, though Twitter has taken to labeling tweets with misinformation or those that “glorify violence” in recent weeks. But there’s one rule even world leaders can’t break: copyright. In October last year, another video posted by Trump featuring a Nickelback song was taken down after a copyright notice was filed. And earlier that year Twitter took down another video that included music from the Batman movie The Dark Knight Rises without permission. –Forbes

Cook had previously been suspended by Twitter for more than a week over a video showing Trump attacking CNN reporter Jim Acosta.

And now, even if Cook wins in court – he will undoubtedly have to spend tens of thousands of dollars doing so.

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New Colorado Police Reform Ends Cops’ Qualified Immunity, Sidesteps Federal Courts

New Colorado Police Reform Ends Cops’ Qualified Immunity, Sidesteps Federal Courts

Tyler Durden

Thu, 06/25/2020 – 17:50

Authored by Ryan McMaken via The Mises Institute,

The governor of Colorado, Jared Polis, signed new legislation on Friday, which immediately puts into effect a wide variety of new reforms regulating the state’s police agencies. These include a number of provisions related to the use of force, body-cam recordings, and qualified immunity for police officers.

Specifically, the bill states:

  • All local and state police officers must wear body cameras by 2023.

  • Body camera footage must be made public (with the exception of footage the violates the privacy of victims and other non-police officers shown in footage.)

  • Chokeholds are prohibited.

  • Shooting at fleeing suspects is prohibited.

  • Deadly force can only be used if a person’s life is in imminent danger

  • Police must report every instance in which they stop someone who they suspect of a crime; they must also include that person’s race, gender, and ethnicity. Police reports must also include information on if the officer’s weapon is unholstered or discharged.

  • Police must report other officers for wrongdoing

  • Officers can be held personally liable for damages up to $25,000 if they are found guilty of violating an individual’s civil rights

  • Officers convicted of unlawful physical force shall has his “peace officer certification” permanently revoked which “shall not under any circumstances” be reinstated. An officer who fails to intervene to end or prevent unlawful use of force shall also have his certification revoked.

Perhaps most significant is the section of the legislation eliminating qualified immunity as a defense for police officers accused of violating an alleged victim’s human rights. (Writers here at the Mises Institute have called for the abolition of qualified immunity, among other reforms, as an critical means of reining in runaway government police power.)

Specifically, if a police officer “causes…the deprivation” of another person’s rights under the Colorado Bill of Rights, then the police officer is “liable to the injured party for legal of equitable relief of any other appropriate relief. Moreover, “qualified immunity is not a defense to liability ….”

Creating an Alternative to the Federal Courts

What is also of special interest here is how the state legislature sought to do an end run around the federal court system. This new reform works to decentralize legal methods of suing police officers for abuse outside the usual federal “civil rights” system.

This was necessary because nearly forty years ago federal judges intervened to hand law enforcement officers far greater protections in federal court than had previously been the case. As Christ Calton has noted:

Prior to the case Harlow v. Gitzgerald in 1982, qualified immunity was essentially “good faith” immunity; as long as officials believed “in good faith” that their actions were legal, they were protected from lawsuits. Harlow rejected the good-faith clause—which depended on the subjective evaluation of the officer—so that the only “qualification” for qualified immunity was that no “clearly established” law was violated. At face value, the subjectivity of the good-faith clause appears to provide an open-ended defense for police abuses, but by eliminating this condition, police officers actually gained even more immunity from liability.

In practice this meant police officers were immune from liability in nearly all cases. Federal courts have ruled that it is almost never “clearly established” that a police officer is being abuse at any given time.

As is so often the case, the US Supreme Court invented this new principle out thin air based apparently on little more than the personal whims of the court’s voting majority. Congress had never provided such sweeping protections to police officers, and it’s unlikely any state legislature did either. However, the court’s ruling made it clear that from then on, it would become exceptionally difficult to establish a police officer’s personal liability in abuse cases in federal court.

The Colorado reform sidesteps all of this by creating a means for suing police officers in state court based on the standards of the Colorado bill of rights rather than the federal one.

Like most state constitutions, the Colorado constitution includes language very similar to the US Bill of Rights, including a recognition of “the right of [the people in] enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness” and the right of the people to “be secure in their persons, papers, homes and effects, from unreasonable searches and seizures.”

The Colorado legislature’s method isn’t fool proof. Federal judges — many of whom, like Chief Justice John Roberts, are apparently just making things up as they go along — could still rule that state bill of rights are and state law are superseded by the invented federal notions of qualified immunity.

State laws such as the new Colorado reform, however, make this less likely, and it will then be up to abusive police officers who have lost their cases to appeal up the line to the Supreme Court and then hope the justices overturn state law so as to favor law enforcement officers yet again.

The only definitive answer to this problem – short of aggressive nullification of federal law on the part of state governments – is a repeal of federal qualified immunity by Congress. A majority of the Supreme Court has made it clear it has no intention of overturning its earlier decisions on qualified immunity. Only an act of Congress will end this judge-invented privilege for government employees.

Fortunately, legislation to this effect has already been introduced by Michigan House member Justin Amash. If this bill makes it to committee or to a floor vote, however, expect furious opposition from police unions and other organizations that have repeatedly opposed any new measures that would increase accountability for government law enforcement.

Indeed, many provisions that are now in effect through the Colorado reform bill have been blocked for years by police organizations in many states. Mandates around police body cams, and “peace officer certification” and other measures have long been opposed on the grounds that their passage would mean police officers would be constantly under suspicion and too constrained in their jobs. In this, we need merely remind the police of the phrase they’ve often used to harangue the taxpayers and other citizens who have protested ever more police power and privacy violations:  “If you’re not doing anything wrong, you have nothing to be afraid of.”

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Firing Nakedly Racist Cops Is Just the First Step in Addressing Racially Biased Policing

Black Lives Matter

A North Carolina police department fired three officers this week for making some disturbingly racist comments.

James Gilmore, Jesse Moore, and Kevin Piner were dismissed from their positions in the Wilmington Police Department (WPD) after the comments were uncovered during a routine inspection of Piner’s in-car camera this month. The comments were made in separate conversations with Gilmore and Moore.

In one of the recorded conversations, Piner muses about an impending civil war, declaring: “We are just gonna go out and start slaughtering them fucking niggers.” At another point, Moore refers to a black woman he arrested as a “nigger” and calls a black judge a “fucking Negro magistrate.” The conversations also degrade protesters, drug users, and even fellow officers: Piner, for example, calls a co-worker a “pussy” for discouraging Moore from breaking an uncooperative woman’s car window.

“There are certain behaviors that one must have in order to be a police officer and these three officers have demonstrated that they do not possess it,” Wilmington Police Chief Donny Williams wrote in a statement. “When I first learned of these conversations, I was shocked, saddened and disgusted. There is no place for this behavior in our agency or our city and it will not be tolerated.” 

Firing these officers is more than justified, but it should just be a first step. The racism displayed by these officers is very upfront, and therefore easier for the casual observer to acknowledge. But a subtler racial bias maintains a broad presence in policing.

For several years, criminal justice reporter Radley Balko has compiled examples of the presence of racial bias in policing all across the country. This growing list contains more than 120 studies in which black Americans were disproportionately arrested or treated more harshly for similar crimes.

In 2017, for example, a

study of 4.5 million traffic stops by the 100 largest police departments in North Carolina found that blacks and Latinos were more likely to be searched than whites (5.4 percent, 4.1 percent and 3.1 percent, respectively), even though searches of white motorists were more likely than the others to turn up contraband (whites: 32 percent, blacks: 29 percent, Latinos: 19 percent).

Racial bias, conscious or unconscious, contributes to disparities in other parts of the criminal justice system, such as the death penalty and sentencing. And when the anti-police-brutality protests this summer were met with yet more brutality, Americans could see examples of unequal treatment occur in real time.

Williams is absolutely correct: Racism should have no place in policing. But firing explicit racists is only part of what must be done to address the practices that unfairly target minorities. Black Americans, for example, are much more likely to be arrested for drug possession than white Americans are, even though blacks are no more likely to be drug users; drug sentencing tends to be doled out disproportionately too. Maybe next we could do something about the drug war?

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Firing Nakedly Racist Cops Is Just the First Step in Addressing Racially Biased Policing

Black Lives Matter

A North Carolina police department fired three officers this week for making some disturbingly racist comments.

James Gilmore, Jesse Moore, and Kevin Piner were dismissed from their positions in the Wilmington Police Department (WPD) after the comments were uncovered during a routine inspection of Piner’s in-car camera this month. The comments were made in separate conversations with Gilmore and Moore.

In one of the recorded conversations, Piner muses about an impending civil war, declaring: “We are just gonna go out and start slaughtering them fucking niggers.” At another point, Moore refers to a black woman he arrested as a “nigger” and calls a black judge a “fucking Negro magistrate.” The conversations also degrade protesters, drug users, and even fellow officers: Piner, for example, calls a co-worker a “pussy” for discouraging Moore from breaking an uncooperative woman’s car window.

“There are certain behaviors that one must have in order to be a police officer and these three officers have demonstrated that they do not possess it,” Wilmington Police Chief Donny Williams wrote in a statement. “When I first learned of these conversations, I was shocked, saddened and disgusted. There is no place for this behavior in our agency or our city and it will not be tolerated.” 

Firing these officers is more than justified, but it should just be a first step. The racism displayed by these officers is very upfront, and therefore easier for the casual observer to acknowledge. But a subtler racial bias maintains a broad presence in policing.

For several years, criminal justice reporter Radley Balko has compiled examples of the presence of racial bias in policing all across the country. This growing list contains more than 120 studies in which black Americans were disproportionately arrested or treated more harshly for similar crimes.

In 2017, for example, a

study of 4.5 million traffic stops by the 100 largest police departments in North Carolina found that blacks and Latinos were more likely to be searched than whites (5.4 percent, 4.1 percent and 3.1 percent, respectively), even though searches of white motorists were more likely than the others to turn up contraband (whites: 32 percent, blacks: 29 percent, Latinos: 19 percent).

Racial bias, conscious or unconscious, contributes to disparities in other parts of the criminal justice system, such as the death penalty and sentencing. And when the anti-police-brutality protests this summer were met with yet more brutality, Americans could see examples of unequal treatment occur in real time.

Williams is absolutely correct: Racism should have no place in policing. But firing explicit racists is only part of what must be done to address the practices that unfairly target minorities. Black Americans, for example, are much more likely to be arrested for drug possession than white Americans are, even though blacks are no more likely to be drug users; drug sentencing tends to be doled out disproportionately too. Maybe next we could do something about the drug war?

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