Month: January 2022

The new year often feels like an opportunity to correct past mistakes—for example, improving one’s diet or quitting smoking. This explains why 25 percent of Americans, and 40 percent of those under 30, make New Year’s resolutions. Based on the latest poll from The Economist and YouGov, the Biden administration should adopt a New Year’s resolution too. In particular, it should reconsider its domestic policy agenda. Americans aren’t buying it.

YouGov is an influential international research data and analytics group headquartered in London. Pollsters asked 1,500 American adults about the state of the economy, the COVID-19 pandemic, inflation and more. Their findings show that people aren’t particularly happy right now.

When asked whether the country is headed in the right direction, only 23 percent of respondents said yes, while 62 percent think we’re on the wrong track. Black Americans seem more content than most, with 38 percent answering yes, as opposed to only 22 percent of Hispanics. There is also a small gender disparity in these opinions: 33 percent of white male college grads believe the country is heading in the right direction, while only 22 percent of white female college grads have the same optimistic view. Meanwhile, only 17 percent of white, non-college grads of all genders are happy with the country’s current direction.

Not surprisingly, 91 percent of Trump voters believe the country is now heading in the wrong direction. Biden voters are more divided; 40 percent believe the country is heading in the right direction, 39 percent believe we are heading in the wrong direction, and 22 percent aren’t sure what they think.

Either way, this isn’t great news for the administration heading into this year’s midterm election, especially because only 22 percent of Americans believe that the current state of the economy is “good” or “excellent.” Forty percent believe it to be “poor.”

This is a big deal, as 96 percent of Biden voters think the economy and jobs are “very important” and “somewhat important” issues. They also rate this issue third in terms of importance after climate change and health care. The poll shows that inflation is another concern, including among many Biden voters, which is understandable with rates reaching levels unseen since 1982.

This anxiety is bound to continue. The administration prefers blaming the surge in prices on corporations, especially in the oil industry, rather than on its own policies—like the unnecessarily extravagant $2 trillion COVID-19 relief bill that passed in January 2021 and flooded the economy with fresh cash. More spending and taxes will inevitably follow such a large government expansion, and like most other Americans, 88 percent of Biden voters think these are both important issues.

During a recent address to the country, Biden noted that there is no federal solution to this pandemic, yet he declared his administration’s commitment to a legally dubious vaccine mandate for private employers. This could be explained by the fact that while Americans are equally divided on requirements by private employers to ask for proof of vaccination, 83 percent of his voters approve.

The poll could also help explain Biden’s seemingly contradictory support for in-person schooling. More people are against requiring proof of vaccination to attend in-person classes than are for it (though women are more supportive than men are of such measures). Fifty-seven percent of Americans are against asking for proof of a booster to attend in-person classes.

Based on these numbers, there are some obvious resolutions Biden’s team could adopt. With a strong majority of Americans believing 2021 was one of the worst years of this nation’s history, the president and his party can’t afford to continue down their current path.

Of course, most Americans don’t follow through on their New Year’s resolutions and quickly return to their old habits. If the administration follows this pattern, it will be at its own risk.

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From today’s order by Judge Michael Fitzgerald (C.D. Cal.) in Doe v. Fitzgerald, denying attorney fees to plaintiffs who prevailed in opposing defendant’s motion for reconsideration:

Plaintiffs’ request for fees is not frivolous. Defendant submitted a motion [for reconsideration] with no support under Local Rule 7-18 and did not withdraw the motion when invited to do so. However, given the voluminous history of motions filed between the parties, the Court does not find an award of fees appropriate here.

In addition, Plaintiffs’ request for $60,525.50 serves as an independent basis to deny the request. Plaintiffs submit that it required in total more than 80 hours of attorney time to file a 14-page opposition to a supposedly baseless motion. The Court will not entertain such a patently unreasonable request. The Court cannot be forced to examine the billing to determine what amount of fees would have been reasonable.

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Until last month, Tony Timpa’s family wasn’t allowed to sue the police officers who allegedly caused his death by pinning him to the ground for about 15 minutes while he begged for help. Those cops had been given qualified immunity, a legal doctrine that insulates various government officials from scrutiny in civil court if the way they allegedly misbehaved has not yet been “clearly established” in some prior court ruling.

But in December the U.S. Court of Appeals for the 5th Circuit struck down the district court’s decision, thus allowing Timpa’s family to make their claims before a jury. That right—to state your case before a panel of your peers—is easily taken for granted. But victims of government abuse face a herculean uphill battle before they’re permitted to do so.

On August 10, 2016, Timpa, who was 32 when he died, called 911 and asked for help. He had been diagnosed with schizophrenia, depression, bipolar disorder, and anxiety disorder, but he was off his medications that day and had taken cocaine. The Dallas Police Department (DPD) officers who responded to him—Sgt. Kevin Mansell, Senior Corporal Raymond Dominguez, and officers Dustin Dillard and Danny Vasquez—were aware of this: The 911 operator told them, and Timpa himself admitted it.

The cops put Timpa on his stomach, cuffed his hands and ankles, and kept him subdued in the prone position for more than 14 minutes. Vasquez pressed his knee into Timpa’s back for the first two minutes and Dillard did the same for the entire duration, even after Timpa had calmed. “Help me!…You’re gonna kill me!” he shouted. He became non-responsive for the last three minutes, and later he was pronounced dead.

On the body camera footage, the officers can be heard making light of his apparent loss of consciousness. Asked if Timpa was still breathing, Dillard responded “I think he’s asleep!” and said that he heard him “snoring.” Dominguez and Vasquez then joined in, joking that Timpa was a schoolboy who didn’t want to go to class but could be lured out of bed with some “tutti-frutti waffles.”

The 5th Circuit was not convinced by the lower court’s decision to shield the men from a jury. “DPD training instructed that a subject in a state of excited delirium must, ‘as soon as possible[,] [be] mov[ed]…to a recovery position (on [their] side or seated upright),'” writes Judge Edith Brown Clement, “because the prolonged use of a prone restraint may result in a ‘combination of increased oxygen demand with a failure to maintain an open airway and/or inhibition of the chest wall and diaphragm [that] has been cited in positional asphyxia deaths.'” She also notes that the training explicitly says that a subject suddenly becoming unresponsive is a sign that he may be dying.

But an officer’s own training is not enough to overcome qualified immunity. A victim must find a closely aligned court precedent, as if cops are more likely to read case law texts than their own training materials. (This is why a group of Denver officers were given qualified immunity for searching a man’s tablet without a warrant and attempting to delete a video of them beating a suspect, despite their training that this violates the First Amendment.)

Fortunately for Timpa’s family, there is a precedent that applies here. “Within the Fifth Circuit, the law has long been clearly established that an officer’s continued use of force on a restrained and subdued subject is objectively unreasonable,” says Clement. In case you were wondering just how granular qualified immunity can be: The officers had convinced the lower court that none of those precedents applied because they didn’t pertain specifically to putting a knee on someone’s back.

“This opinion gives cause for optimism and pessimism,” says Easha Anand, Supreme Court and appellate counsel at the MacArthur Justice Center and an attorney for Timpa’s estate. “The cause for optimism is the 5th Circuit has reiterated now, as a doctrinal matter, [that] if the only difference you can find between case one and case two is the kind of force being used, that’s not good enough.” On the pessimistic side, the district court’s decision “was not pulled out of left field,” she says. Whether or not an alleged victim gets the privilege to go before a jury very much depends on which judges hear his case and how they choose to define the level of specificity required to “clearly establish” a constitutional right.

Another reason for pessimism: The government has the power to drag out such suits with appeal after appeal, as months become years, while victims wait for the chance even to ask a jury if damages are appropriate. Earlier this week, the city of Dallas moved to prolong it further, requesting that the case be re-heard, a plea that is rarely successful. In their petition, the city’s lawyers argue that since Timpa died before George Floyd ignited a national conversation around the prone restraint, they couldn’t have known that what they did was excessive, despite the training that taught them it was excessive.

“I don’t pretend that anything that can happen in a courtroom is going to provide solace for [the family’s] pain,” says Anand. “But I hope that at the very least, Judge Clement’s opinion makes it so the family feels like some court has heard what happened and has understood it as a profound injustice.” We’ll see if the next one agrees.

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As outrageous and embarrassing as it was, the Capitol riot that happened a year ago today did not come close to stopping Joe Biden from taking office. The assault on the Capitol was haphazard and hapless, a temper tantrum rather than an incipient coup. It was a humiliating spectacle for the United States, indisputable evidence of Donald Trump’s reckless self-absorption, and a fitting end to a ridiculous presidency. But in the end, the vandalism and violence merely delayed the ratification of the election results until that night.

Former President Jimmy Carter nevertheless claims that “a violent mob, guided by unscrupulous politicians, stormed the Capitol and almost succeeded in preventing the democratic transfer of power.” In a New York Times essay titled “I Fear for Our Democracy,” Carter says the threat represented by that “insurrection” continues to endanger our system of government. “Our great nation now teeters on the brink of a widening abyss,” he writes. “Without immediate action, we are at genuine risk of civil conflict and losing our precious democracy.” The Times editorial board likewise warns that “the Republic faces an existential threat from a movement that is openly contemptuous of democracy and has shown that it is willing to use violence to achieve its ends.”

This alarming portrait of a nation on the verge of civil war supposedly is verified by polling data showing that Americans are not only more bitterly divided than ever but also increasingly inclined to resolve political disputes with violence. Carter, for example, cites a January 2021 survey in which “36 percent of Americans—almost 100 million adults across the political spectrum—agree[d] that ‘the traditional American way of life is disappearing so fast that we may have to use force to save it.'”

A Washington Post/University of Maryland poll conducted last month likewise is generating alarm among people who are inclined to see the Capitol riot as a harbinger of a near future in which bullets replace ballots. “Do you think it is ever justified for citizens to take violent action against the government, or is it never justified?” the survey asked. A third of the respondents, including two-fifths of Republicans, said “violent action against the government” could be justified. Although that is a sentiment on which this country was built, Post columnist Jennifer Rubin saw those results as further evidence that “democracy itself is on the ballot this year.”

A study published last September in the Proceedings of the National Academy of Sciences challenges the notion that a substantial minority of Americans—more than two-fifths, according to some reports—condone political violence. The Dartmouth political scientist Sean Westwood and his co-authors argue that “documented support for political violence is illusory, a product of ambiguous questions, conflated definitions, and disengaged respondents.”

Westwood et al. acknowledge that partisan animosity, a.k.a. “affective polarization,” has “increased significantly” during the last few decades. “While Americans are arguably no more ideologically polarized than in the recent past,” they say, “they hold more negative views toward the political opposition and more positive views toward members of their own party.” But at the same time, “evidence suggests that affective polarization is not related to and does not cause increases in support for political violence and is generally unrelated to political outcomes.” So what are we to make of claims that more than a third of Americans believe political violence is justified?

“Despite media attention,” Westwood et al. note, “political violence is rare, amounting to a little more than 1% of violent hate crimes in the United States.” They argue that “self-reported attitudes on political violence are biased upwards because of disengaged respondents, differing interpretations about questions relating to political violence, and personal dispositions towards violence that are unrelated to politics.”

Westwood et al. estimate that, “depending on how the question is asked, existing estimates of support for partisan violence are 30-900% too large.” In their study, “nearly all respondents support[ed] charging suspects who commit acts of political violence with a crime.” These findings, they say, “suggest that although recent acts of political violence dominate the news, they do not portend a new era of violent conflict.”

These conclusions are based on three surveys in which Westwood et al. presented respondents with specific scenarios involving different kinds of violence, varying in severity and motivation. “Ambiguous survey questions cause overestimates of support for violence,” they write. “Prior studies ask about general support for violence without offering context, leaving the respondent to infer what ‘violence’ means.” They also note that “prior work fails to distinguish between support for violence generally and support for political violence,” which “makes it seem like political violence is novel and unique.”

A third problem they identify is that “prior survey questions force respondents to select a response without providing a neutral midpoint or a ‘don’t know’ option,” which “causes disengaged respondents…to select an arbitrary or random response.” Since “current violence-support scales are coded such that four of five choices indicate acceptance of violence,” those arbitrary or random responses tend to “overstate support for violence.”

What happens when researchers try to address those weaknesses? In all three surveys that Westwood et al. conducted, “respondents overwhelmingly reject[ed] both political and non-political violence.” And while a substantial minority disagreed, that number was inflated by respondents who were classified as “disengaged” based on their failure to retain information from the brief scenarios they read.

The first two surveys, conducted in January 2021, described two actual incidents of political violence. In one, “a Democratic driver was charged with hitting a group of Republicans in Florida who were registering citizens to vote.” In the other, “a Republican driver was charged with assault for driving his car though Democratic protesters in Oregon.”

In both cases, a fifth of all respondents said the assault was justified. The level of support was essentially the same when the partisan details were omitted. But disengaged respondents were much more likely to approve of the assaults than engaged respondents. When the partisan details were included, about 38 percent of disengaged respondents said the driver’s actions were justified, compared to 12 percent of engaged respondents. When the partisan details were omitted, the numbers were about 45 percent and 11 percent, respectively.

The third survey, conducted last April, randomly assigned participants to read “a story with a Republican or Democratic shooter engaging in politically motivated violence or an apolitical act of murder.” As you might expect given the severity of the violence, far fewer respondents said it was justified. Overall, 10 percent of respondents said the shooter was justified in the political scenario, while about 7 percent said the apolitical shooter was justified. But there was a huge gap between the disengaged and engaged respondents: 34 percent vs. 4 percent in the political scenario and 26 percent vs. 3 percent in the apolitical scenario.

The gap between engaged and disengaged respondents shrank dramatically when they were asked a more concrete question: Should the driver or shooter face criminal charges? “Across our conditions,” Westwood et al. report, “between 83% and 100% of respondents who passed the engagement test want the suspect in the politically motivated violent crime charged, while between 81% and 94% of disengaged respondents want the suspect in the politically motivated violent crime charged.”

The study presents additional evidence that the answers given by respondents who failed the engagement test do not necessarily reflect their actual views. “When presented with a dichotomous question and no ‘don’t know’ option,” the researchers report, “disengaged respondents essentially randomly split their responses between the two choices, while engaged respondents overwhelmingly report that the driver is not justified….When disengaged respondents are presented with five choices that include a neutral midpoint, the modal response is the midpoint with the remaining respondents splitting their responses between the remaining four categories.”

In addition to suggesting that surveys commonly exaggerate the level of support for political violence, this study casts doubt on the idea that political motivation has much to do with how people respond to these questions. Westwood et al.’s study included a question used in prior surveys: “How much do you feel it is justified for [members of your party] to use violence in advancing their political goals these days?” There are five possible answers, ranging from “not at all” to “a great deal.”

While that “measure of political violence” was “predictive of support for political violence in our vignettes,” Westwood et al. say, it also predicted “support for apolitical acts of violence.” They think “the evidence is clear” that  “the survey measure…captures general tolerance for violence and not political violence specifically.”

Given these findings, the dire predictions of literal partisan warfare should be taken about as seriously as the claim that the Capitol riot “almost succeeded” in overturning the results of the presidential election. “Our results show support for political violence is not broad-based,” Westwood et al. conclude. “To the contrary, we find the public overwhelmingly rejects acts of violence, whether they are political or not. Our evidence suggests that extant studies have reached a different conclusion because of design and measurement flaws.”

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