Government and Politics

July 9, 2020 10:21AM

Should Governments Erect Statues?

By Jeffrey Miron and Erin Partin

In response to the police killing of George Floyd, and to a resurgence of the Black Lives Matter movement, protesters across the country have recently removed or vandalized statues celebrating Confederate soldiers, founding fathers, and explorers. Some cities and states have preemptively removed or covered such statues to reduce the likelihood of conflict.

Those advocating for statue removal argue that honoring problematic historical figures is offensive to significant fractions of the citizenry, especially Blacks and other minorities. And many of the Confederate monuments being attacked were erected during the Jim Crow era, at moments of civil rights unrest.

Those opposing statue removal argue that these statues preserve history and should therefore remain. Opponents also raise questions about where to draw the line regarding which statues should come down, or not.

To resolve this debate, we should recognize that the statues in question were constructed by governments, at taxpayer expense, and typically reside on government land.

No good argument exists, however, for why governments should be in the “statue” or “history” business. Government interventions in the economy and society can sometimes make sense as responses to monopoly, or externalities (e.g., pollution), or insufficient provision of public goods (e.g., national defense). Even in such cases, governments often overreach, but at least advocates of intervention can suggest that private mechanisms, on their own, might not produce a good outcome.

None of the standard “market failures”, however, explains why governments need to build statues or any other kind of monument. Governments do so as a method of thought control, to nudge their citizens toward a particular view of the state. This is NOT a legitimate function of government.

Books, movies, television, universities, private museums, and other private institutions, moreover, are more than adequate mechanisms to preserve and teach history.

So while vandalism aimed at statues is ill advised, the lawful removal of government statues and monuments is good policy because governments should never have erected them in the first place. These expensive public works projects have no legitimate public benefit but do have a major negative: offending or even oppressing the citizenry, minorities in particular.

July 8, 2020 3:17PM

Complexity in State Government

One of the factors undermining efficiency and performance in American government is the rising complexity of laws, regulations, programs, and bureaucratic procedures. Complexity raises costs, reduces transparency, and undermines sound management.

The problem is partly caused by the flood of money pouring from the federal government to state governments and from state governments to local governments. These flows come with extensive reporting requirements and with countless rules that micromanage how money is to be used and not used.

Other sources of complexity include court‐​ordered requirements, collective bargaining agreements, and activism by every incoming federal, state, and local politician wanting to add new programs as well as carve‐​outs and additions to existing ones. Governors don’t just want to increase spending on public schools in general, they want signature achievements they can brag about, such as raising teacher pay X percent, reducing class sizes Y percent, or creating programs with buzzy and aspirational titles to signal their issue leadership.

The administration of Utah Governor Gary Herbert discusses the complexity problem in its proposed budget for 2021. Utah is a conservative state that spends only a fraction of what liberal states do on a per capita basis, so the problems identified in these Utah excerpts are presumably worse in states such as New York.

The number of bills, resolutions, funds, line items, programs, and performance measures continue to grow over time.

… While no single measure can precisely capture the increase in complexity, some data provides a point of reference. The Legislature passed 574 bills and resolutions during the 2019 General Session, which represents a 47% increase over the 391 bills and resolutions passed in the 2000 General Session.

Not only is the overall number of bills increasing, but the complexity of appropriation bills is also continuing to grow. Each appropriation identifies a funding source and funding use, typically referred to as a line item. Additionally, separate allocations for specific programs may be identified within a line item. In FY 2020, 1,472 active programs are identified in the state’s accounting chart of accounts. This is 205 (or 16%) more active programs than in FY 2011.

This trend of increasing complexity is particularly concerning in the area of public education. In FY 2010, the public education budget split funding into 44 different programs outside of the Weighted Pupil Unit (WPU)-based Basic School Program. This increased to 62 different non‐​WPU programs in FY 2020, including 31 under the Related‐​to‐​Basic line item and another 26 under line items for the State Board of Education’s Initiatives, Science Outreach, and Fine Art Outreach.

Another recent trend is the creation of new funds or accounts to fence off funding for specific programs. In FY 2020, $688 million (or nearly 9%) of all Education Fund and General Fund appropriations passed through another fund or account before being allocated for their actual use.

… Excessive budget line items and programs also separates budget buffers. Agencies are permitted to move funding between programs within the same line item, but excluding a few statutory exceptions, may not move funding between line items. As a result, agencies may over budget for an individual line item because no other mechanism can reallocate funds to address emerging priorities or unexpected costs.

… There were over 800 performance measures in 2019 General Session appropriations bills.

… In the recent Performance Audit of Public Education Reporting Requirements, the Office of the Legislative Auditor General was unable to identify exactly how many different reports local education agencies (LEAs) are expected to submit each year. Based on reporting calendars from various entities, the auditors estimated the number of reports to exceed 300. The auditors said, “The difficulty lies in the large number of individual reporting requirements found in federal law, state statute, administrative rule, and department policy, let alone additional requests for data from various entities.”

This audit finding illustrates the needless overhead and complexity that occurs when people in positions of authority try to gain insight by breaking systems down into smaller and smaller measurable parts, often yielding more complexity and cost without improving performance.

… In summary, increasing complexity will make government more difficult to understand and lead to squandered opportunities. By contrast, replacing complexity with simplicity will help citizens better understand the services they are purchasing with taxpayer dollars and ensure that every tax dollar invested creates more value.

June 29, 2020 3:38PM

Seila Law Doesn’t Add Up

In Seila Law, LLC v. Consumer Financial Protection Bureau, the Supreme Court today held that the CFPB’s design violates the Constitution because it concentrates too much power in the hands of one person.

The Court’s remedy, alas, was to concentrate power in the hands of a different person.

Let’s unpack this curious result (background & Cato brief).

A decade ago, in response to the last financial crisis, Congress transferred 18 regulatory programs to the newly created CFPB. Thus empowered, the agency enjoys sweeping authority to enforce the rules it writes.

To insulate the CFPB from politics on Capitol Hill, Congress exempted the agency from the normal appropriations process. Instead, the CFPB is funded directly by the Federal Reserve, and Congress is left out of the loop.

To shield the CFPB from presidential politics, Congress made it an “independent” agency, which means simply that the CFPB’s leadership can disagree with the president (on policy) without fear of being fired.

Almost always, such “independent” agencies are multi‐​member and bipartisan commissions. For the CFPB, however, Congress placed a single director in charge.

Taken individually, none of the CFPB’s characteristics are unprecedented. Plenty of agencies exercise sweeping authority. A couple may bypass the appropriations process. Many are “independent” agencies. And a handful are run by a single director.

The CFPB is special because it was the first agency to incorporate all the above qualities.

The primary question before the Seila Law Court was whether the CFPB’s unique structure violated the Constitution. A bare majority of Justices answered in the affirmative.

According to Chief Justice Roberts’s opinion, the CFPB “lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor.” The agency is, therefore, “incompatible” with the separation of powers.

So far, so good: The CFPB’s structure is unconstitutional.

The Seila Law opinion then turns to how the Court should remedy this constitutional violation. This is where the opinion leaps off the rails.

According to seven Justices, the “solution” to the CFPB’s unconstitutional structure is simply to remove the agency’s “independent” status. In practice, this means that the president may fire the CFPB’s director “at will.” The problem is that the Court’s remedy fails to diminish the constitutional harm as set forth by the holding.

On the merits, the Court determined that the CFPB’s design was unconstitutional for two main reasons. First, the agency represented an historical anomaly. Second, Congress vested too much unaccountable power in one person.

Well, under the terms of the Court’s remedy, the CFPB remains an historical anomaly that concentrates too much unaccountable power in one person.

To my knowledge, no other executive agencies (i.e., non‐​independent) are spared from Congress’s power of the purse. If I’m right, then the CFPB currently is no less unprecedented than it was before the Court’s decision today.

Moreover, the agency still reflects a constitutionally dubious consolidation of power, albeit now amassed in the president instead of the CFPB director. When it comes to the CFPB—a regulatory powerhouse—the president doesn’t have to haggle with lawmakers to get funding for his priorities. No more pesky oversight from appropriators! 

In sum, the Court’s opinion is a house divided. The Court rightly struck down the CFPB’s design as unconstitutional. But the Court’s remedy has the perverse effect of perpetuating the underlying harms. Had it followed its (correct) constitutional reasoning to the logical end, the Court would have sent the entire regime back to Congress. 

Only Congress can clean up this mess. At the very least, lawmakers should normalize the CFPB’s budget process.

June 27, 2020 5:05PM

Tucker Carlson’s Fanciful Defense of What He Imagines Qualified Immunity To Be

A good sign that a policy is indefensible is when its proponents cannot bring themselves to describe it accurately. Such is the case with the doctrine of qualified immunity, which is currently the subject of a furious disinformation campaign led by the law‐​enforcement lobby (see here, here). The most recent mouthpiece for this campaign was Tucker Carlson, who two nights ago mounted a spirited defense of an imaginary legal rule that he called “qualified immunity,” but which bears only the faintest resemblance to the actual doctrine. Reason’s Billy Binion and IJ’s Patrick Jaicomo have already done a great job explaining some of Carlson’s biggest mistakes, but there is so much here that is either highly misleading or outright false that it’s worth unpacking in full. Strap in!

By way of background, the inciting incident for Carlson’s segment on qualified immunity was the “Reforming Qualified Immunity Act” introduced by Senator Mike Braun (R-IN) earlier this week. As I discussed here, what this bill would effectively do is eliminate qualified immunity in its current form and replace it with limited safe‐​harbor provisions. The main effect would be that people whose rights are violated would no longer need to find prior cases where someone else’s rights were violated in the same way before being allowed to proceed with their claims. However, if defendants could show that either (1) their actions were specifically authorized by a state or federal law they reasonably believed to be constitutional, or (2) their actions were specifically authorized by judicial precedent that was applicable at the time, then they could avoid liability.

In other words, this bill doesn’t go far as the Amash‐​Pressley “Ending Qualified Immunity Act,” which would eliminate the doctrine entirely. But it is still a significant proposal that both meaningfully addresses and corrects the core absurdity of the current qualified immunity regime (the “clearly established law” standard), while preserving immunity in those relatively rare—but more sympathetic—cases in which defendants are specifically acting in accordance with applicable statutes or judicial precedent. And, unlike the “Justice in Policing Act,” Senator Braun’s bill would reform qualified immunity across the board for all government agents, not just members of law enforcement.

So, what did Tucker Carlson have to say about this bill?

Braun has introduced legislation in the Congress that will make it easier for left‐​wing groups to sue police officers.

I won’t dwell on this point, because Carlson is clearly just being snarky here. But suffice to say, Braun’s proposal is not specific to “left‐​wing groups,” and indeed, not specific to police at all. Rather, it just amends Section 1983, our primary federal civil rights statute, which permits all citizens to sue government agents who violate their rights—to clarify that defendants cannot escape liability, just because there is no prior case with similar facts.

Under current law, police officers in this country benefit from something that’s called “qualified immunity.”

Again, qualified immunity is not limited to police officers. The defense can be raised by all state and local public officials who have civil rights claims brought against them, including corrections officers, public school officials, county clerks, and other municipal employees. Still, the reason qualified immunity is such a hot topic right now is because of its application to law enforcement, so I’ll stop harping on this issue. Also, the suggestion that police officers actually benefit from qualified immunity is highly suspect, but we’ll get to that later…

Qualified immunity means that cops can’t be personally sued when they accidentally violate people’s rights while conducting their duties. They can be sued personally when they do it intentionally, and they often are.

Here is where Carlson plunges headfirst into fantasy. This “accidental/​intentional” distinction he’s describing has no basis in qualified immunity case law. Indeed, under the “clearly established law” standard, a defendant’s state of mind has no bearing whatsoever on whether they are entitled to qualified immunity—a defendant could be explicitly acting in bad faith, with the express intent to violate someone’s rights, and still receive immunity, so long as there was no prior case involving the precise sort of misconduct they committed.

The best illustration of this point is the Ninth Circuit’s recent decision in Jessop v. City of Fresno, where the court granted immunity to police officers alleged to have stolen over $225,000 in cash and rare coins while executing a search warrant. The court noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” In other words, it didn’t matter that the officers were intending to break the law; not even the defendants here claimed that they “accidentally” stole from this suspect. All that mattered was that the court hadn’t confronted this particular factual scenario before.

In other words, police officers are not above the law.

It is true that police officers are not literally immune from liability for their misconduct (unlike prosecutors, who actually do receive absolute immunity for violating people’s rights). But police officers are held to a vastly lower standard of accountability than the citizens they police. For regular people, it’s a well‐​known legal maxim that “ignorance of the law is no excuse.” Even in cases with serious criminal penalties, courts routinely permit the prosecution and conviction of defendants who had no idea they were breaking the law. If anything, you would expect law enforcement—public officials specifically charged with knowing and enforcing the law—to be held to a higher standard of care than ordinary citizens. But in fact, they’re held to a far lower standard. Ignorance of the law is no excuse—unless you wear a badge.

Cops who commit crimes can be punished .… Cops who make lesser mistakes can be disciplined, suspended, or fired, and they often are. That’s the system that we have now. It works pretty well.

If this assertion doesn’t cause you to burst out laughing, then you haven’t been paying attention to our criminal justice system for the last several decades. Suffice to say, no, our system is not working pretty well. It is extraordinarily difficult to convince prosecutors to bring charges against police officers, much less to obtain convictions (see here for a list of especially notable non‐​convictions). And internal discipline measures are laughably feeble, due in large part to the power of police unions. The inadequacy of both criminal prosecution and internal discipline as meaningful accountability measures is exactly why we need a robust civil remedy—and therefore exactly why qualified immunity is such a serious problem (we’ve argued this point in much more detail in our cross‐​ideological amicus briefs before the Supreme Court).

Civil immunity, by the way, has precisely nothing to do with anything that happened in the George Floyd case, just in case you’re wondering. That cop is in jail.

Qualified immunity applies in civil law suits, not criminal prosecutions, so it’s true that qualified immunity will not limit the criminal prosecution of Derek Chauvin. But Carlson is wrong that the doctrine has “nothing to do with anything that happened in the George Floyd case,” for two reasons.

First, if George Floyd’s family does decide to bring a civil rights claim against Chauvin and the other officers on the scene, it is entirely possible that the officers would be able to invoke qualified immunity, depending on whether there’s a prior case in the Eighth Circuit with similar facts (i.e., an officer kneeling on a non‐​resisting suspect’s neck for a long period of time while the suspect says he can’t breathe). Even if Chauvin is convicted of murder, that’s no guarantee that he wouldn’t be entitled to immunity in a civil suit. Whether a prosecutor can prove the elements of murder beyond a reasonable doubt is simply a different legal question than whether prior case law would make the violation of George Floyd’s rights “clearly established,” under modern qualified immunity doctrine.

Second, the senseless violence committed by Derek Chauvin and the stunning indifference of the other officers standing nearby are the product of our culture of near‐​zero accountability for law enforcement. While that culture has many complex causes, one of the most significant is qualified immunity. Section 1983 was supposed to be the primary means of holding accountable government agents who violate our constitutional rights. Qualified immunity has severely undermined the deterrent effect of that statute, and thereby contributed to an environment where police simply do not expect to be held to account when they commit misconduct.

Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult split‐​second decisions on the job, and a lot. They do it constantly. Whether to arrest someone, whether to conduct a search, whether to use force against a suspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional.

Here, Carlson regurgitates what is probably the most commonly invoked defense of qualified immunity: that it is necessary to protect the discretion of police officers to make split‐​second decisions. And, no surprise, it is profoundly mistaken. This was the very first issue I addressed in my previous post on “The Most Common Defenses of Qualified Immunity, and Why They’re Wrong,” but the short answer is that our substantive standards for determining what actions do and do not violate the Fourth Amendment already incorporate substantial deference to on‐​the‐​spot police decision‐​making. In other words, when police “sincerely and reasonably” make a decision about whether to arrest someone or use force, they almost certainly will not have broken the law in the first place. Qualified immunity is therefore unnecessary to protect this discretion, because the doctrine, by definition, only applies when a defendant has committed a constitutional violation.

Moreover, as a I discussed above, qualified immunity has nothing to do with whether an officer “sincerely and reasonably” believed their actions to be lawful. It doesn’t turn on their state of mind at all. All that matters is whether a court determines that the facts of prior cases were sufficiently similar to hold that the law was “clearly established.”

The Reason article by Billy Binion aptly notes that Carlson’s assertion here “can only be explained by a lack of familiarity with qualified immunity case law,” and provides numerous examples of the sort of egregious injustices this doctrine regularly permits:

Take the cop who received qualified immunity after shooting a 10‐​year‐​old while in pursuit of a suspect that had no relationship to the child. The officer, sheriff’s deputy Matthew Vickers, was aiming at the boy’s nonthreatening dog. There were also the cops who were granted qualified immunity after assaulting and arresting a man for standing outside of his own house. And the prison guards who locked a naked inmate in a cell filled with raw sewage and “massive amounts” of human feces. And the cop who, without warning, shot a 15‐​year‐​old who was on his way to school. And the cops who received qualified immunity after siccing a police dog on a person who’d surrendered. It doesn’t take much thought to conclude that those courses of action were morally bankrupt.

Just so. Okay, back to Carlson’s defense of what‐​he‐​calls‐​qualified‐​immunity:

Sometimes the very laws [police officers] enforce are struck down. That’s not their fault, obviously, but without qualified immunity, police could be sued for that personally.

Only a tiny fraction of lawsuits against police involve claims that the laws they’re enforcing are themselves unconstitutional. But Carlson actually is correct that, without qualified immunity, police officers could be held liable for enforcing unconstitutional statutes. Indeed, that sort of application was probably the principal evil that Congress had in mind when it enacted Section 1983 in 1871, as part of the Ku Klux Klan Act. Congress was well aware that southern states would continue passing laws infringing on the constitutional rights of recently freed slaves, and they wanted to deter state and local officials from carrying out such laws. Executive officers—no less than legislators or judges—have an independent obligation to enforce and respect constitutional limitations.

Still, one can understand the seeming unfairness in holding defendants personally liable when the only conduct alleged to be unlawful was executing a statute they reasonably believed to be valid. But, for that very reason, this is one of the two explicit safe harbors included in Braun’s bill! His proposal specifically states that a defendant will not be liable under Section 1983 when “the conduct alleged to be unlawful was specifically authorized or required by a Federal statute or regulation, or by a statute passed by the primary legislative body of the State … in which the conduct was committed.” In other words, Carlson is either entirely unaware of or willfully concealing the fact that Braun agrees with his own argument here, and has already incorporated it into his bill.

[Police officers] could be bankrupted, they could lose their homes. That’s unfair. It would also end law enforcement. No one would serve as a police officer.

This is another issue I already addressed in my “common defenses” post, but I’ll repeat the main points here. First, it’s crucial to understand that even today, police officers are nearly always indemnified for any settlements or judgments against them in civil rights claims. This means that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, a UCLA law professor and probably the foremost scholar of qualified immunity, demonstrated in a 2014 article called Police Indemnification that, in her study period, “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” In other words, even when plaintiffs do overcome qualified immunity, the individual police officers rarely pay a dime.

I have written elsewhere about how this practice of near‐​automatic indemnification is itself problematic, because it fails to provide for individualized accountability for officers who violate people’s rights. A better practice, as my colleague Clark Neily has also discussed, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. Nevertheless, as things currently stand, officers are almost never required to pay anything personally, and that won’t change if we eliminate qualified immunity. The idea that police would be “bankrupted” or “lose their homes” is reckless fear‐​mongering. 

Also, with regard to the idea that eliminating qualified immunity would “end law enforcement,” I wonder whether Carlson is aware that he’s made a testable prediction? After all, as I discussed here, Colorado recently enacted a civil rights law that effectively removes the defense of qualified immunity for officers who violate people’s rights under the state constitution. Will this “end law enforcement” in Colorado? If Tucker Carlson or anyone who agrees with him would like to make a bet on this question, I’ll give generous odds.

And that’s why the Supreme Court has upheld the principle of qualified immunity for decades now, often unanimously, both sides agreeing.

I will give Carlson this—he is absolutely right that the Supreme Court has shown remarkable tenacity in sticking to one of the most embarrassing, egregious mistakes in its history. Section 1983 clearly says that any state actor who violates someone’s constitutional rights “shall be liable to the party injured,” and the common‐​law history against which that statute was passed did not include any across‐​the‐​board defenses for all public officials. The Supreme Court’s invention of qualified immunity was a brazen act of judicial policy‐​making that effectively rewrote this statute, and it’s shameful that the Justices have repeatedly declined the opportunity to correct this error.

What is surprising, however, is why Tucker Carlson approves of such blatant judicial activism in this case. After all, Carlson himself recently bemoaned how “courts increasingly have come to see themselves not as interpreters of the law, their constitutional role, but as the country’s main policy makers.” So, does he want the Supreme Court to faithfully interpret the text and history of Section 1983, or to continue imposing their own policy preferences?

But now, in order to placate the rioters, who he believes have more moral authority than the police, Senator Mike Braun of Indiana would like to gut qualified immunity, and make it easier for cops to be sued personally for mistakes.

I already discussed above how Senator Braun’s bill does not wholly abolish qualified immunity, but rather replaces the “clearly established law” standard with two limited, principled safe‐​harbors. I also discussed how Section 1983 doesn’t make cops liable for “mistakes,” it makes them liable for constitutional violations—and the Fourth Amendment itself is already incredibly deferential to police decision‐​making. An officer hasn’t violated the Fourth Amendment because they made the “wrong” call with regard to an arrest or use of force; they only violate the Fourth Amendment when they act objectively unreasonable, under the circumstances known to them at the time.

But I do want to address this idea of “moral authority.” Setting aside the nonsense about “placating rioters,” how does it affect the moral authority of the law enforcement community when we hold police officers to a lower standard of liability than any other profession? As I’ve discussed previously, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. If you want to restore the moral authority of the police, you can’t let police officers escape liability for egregious and immoral misconduct. If you want people to respect officers as professionals, then the law has to hold them to professional standards.

Qualified immunity, more than any other single rule or decision, has eroded the moral authority of the police, not protected it. And that is exactly why the more thoughtful members of law enforcement—such as the Law Enforcement Action Partnership and the National Organization of Black Law Enforcement Executives—have explicitly called for the elimination of qualified immunity. As Major Neill Franklin (Ret.) has explained: “Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.”

* * *

Carlson finishes his segment with a rant about Charles Koch that would make Nancy MacLean blush, and then asks whether Senator Braun would be willing to defend the absolute immunity that members of Congress enjoy. This latter question is interesting enough on its own, but Carlson obviously just intends it as a “gotcha,” not as a serious point of discussion.

But the bottom line is that Tucker Carlson has done a profound disservice to his viewers and to the country by further propagating blatant misunderstandings of what qualified immunity actually is. It’s honestly hard to say whether Carlson himself has been duped, or whether he is willfully joining the disinformation campaign of the law‐​enforcement lobby. But either way, nobody should take what he’s saying at face value. I remain interested to see whether any self‐​professed advocate of qualified immunity will defend the actual doctrine.

June 23, 2020 1:01PM

Republican Senator Introduces Legislation To Reform Qualified Immunity

Today, Senator Mike Braun (R-IN) announced that he will be introducing the "Reforming Qualified Immunity Act." While many other Republicans have already expressed interest in addressing qualified immunity, Senator Braun is the first Republican in the Senate to put forward or join a concrete legislative proposal to fix this egregious doctrine. In contrast to the Amash-Pressley "Ending Qualified Immunity Act," Senator Braun's bill would not wholly abolish all vestiges of the doctrine. But it is a significant proposal that meaningfully acknowledges and corrects the most fundamental injustices of qualified immunity. Here's how it works:

By way of background, Section 1983 -- the federal statute that was intended to allow people to sue government officials who violate their constitutional rights -- provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .

In other words, the statute says that anyone acting "under color of" state law -- i.e., any state actor -- who violates someone's rights "shall be liable to the party injured." The statute says nothing about any immunities, and as Professor Will Baude has explained in detail, the common-law history against which this statute was passed did not include any across-the-board immunities for all public officials. But the Supreme Court effectively rewrote this statute by inserting the phrase "clearly established" between "any" and "rights." Legislative solutions to qualified immunity therefore need to amend Section 1983 to say, in essence, that the statute actually means what it says.

So with that in mind, let's look at the operative text of Senator Braun's bill, which amends Section 1983 as follows. To begin, it says:

(b)(1) Except as provided in paragraph (2), it shall not be a defense to any action brought under this section [i.e., under Section 1983] that, at the time of the deprivation—

(A) the defendant was acting in good faith;

(B) the defendant believed, reasonably or otherwise, that his or her conduct was lawful;

(C) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established; or

(D) the state of the law was such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

This language, which closely mirrors the exact language used in both the "Ending Qualified Immunity Act" and the "Justice in Policing Act," effectively eliminates qualified immunity in its present form (i.e., the "clearly established law" standard), and also clarifies that a defendant's subjective belief in the legality of their conduct is not enough, on its own, to let them avoid liability for violating someone's rights. Note also that while the "Justice in Policing Act," as amended, only eliminates qualified immunity for law enforcement, Senator Braun's bill, like the Amash-Pressley bill, eliminates qualified immunity for all public officials.

Read the rest of this post »
June 19, 2020 3:14PM

Local Governments and the Recession

In response to the crisis, Congress and the Federal Reserve have provided cities and states with hundreds of billions of dollars in aid. But there are calls for more from the Fed chief, lobby groups such as the National League of Cities, and Democrats and some Republicans on Capitol Hill.

News articles are whipping up fears of an apocalypse unless Congress passes another state‐​local aid package. Politico claims that states and cities are “slashing” services with “severe” cuts, while Education Week worries about “draconian” cuts to schools. The New York Times says that the virus is “ravaging” state budgets, while Bloomberg worries about California’s looming “budget disaster.”

Such scare stories were common during the Great Recession a decade ago. But we can look back and see that the overall budget adjustments at the time were not that severe, particularly for local governments, which I examine here.

A recent study by the Council of Foreign Relations in support of more state‐​local aid gets the history wrong with regard to local governments: “The deep economic recession of December 2007 to June 2009 and slow recovery put many subnational budgets in unusually dire straits … The situation was particularly bleak at the local level, where many balance sheets were battered by the collapse of home values and property tax revenues.”

In fact, nationwide local tax revenues did not fall during the Great Recession, as BEA data from Table 3.21 shows in the chart. Property tax revenues—which account for about 72 percent of local tax revenues—remained robust. Revenues rose during the 2000s, flat‐​lined for a few years during the recession, then started growing again. Even though nationwide home prices dropped more than 20 percent from 2007 to 2011, local governments are slow to adjust valuations which smooths property tax revenues over time.

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We will likely see a similar pattern this time. Housing prices do not appear to be falling much, so property tax revenues should remain steady. Zillow expects housing prices to fall 2 percent this year, while Real​tor​.com expects they will rise 1 percent.

However, prices may decline substantially for commercial properties in some areas, thus suppressing property tax revenues for some governments. And some big cities such as New York may face deep financial problems as people and businesses flee to the suburbs and other states permanently in response to the virus, harsh shutdown laws, high taxes, and urban civil disorder.

For most local governments, however, tax revenues should stay quite strong, as during the last recession. If governments hold spending flat for a couple of years, they should be fine. News stories often call flat spending a “cut.” Let’s say a city passed a budget pre‐​virus proposing to increase spending 5 percent from $100 million to $105 million, but now with the recession the city prudently decides to withdraw the $5 million increase. That is not slashing or draconian, but it is often portrayed as such.

Anyway, many cities are making sensible and modest budget adjustments. The City of Boston had planned to increase its budget $154 million or 4.4 percent in 2021, but with the recession, it has trimmed $65 million from the increase by freezing hiring, cutting police overtime, and other adjustments. San Antonio’s budget will be roughly flat next year as it trims such items as street improvement projects and economic development incentives, while imposing a hiring freeze, employee furloughs, and cuts to executive pay.

State and local governments are not subdivisions of the federal government. They have the power to adjust their spending, taxes, and borrowing to handle the recession. They can also speed the return to economic growth by removing regulatory barriers to entrepreneurs who want to start businesses and create jobs. More businesses and jobs mean more revenue for governments.

The more aid that Congress provides, the less incentive for states and cities to improve operational efficiencies and to deregulate to spur broad‐​based economic growth.

June 19, 2020 2:17PM

The Most Common Defenses of Qualified Immunity, and Why They’re Wrong

In the continuing aftermath of George Floyd’s death at the hands of Minnesota police, qualified immunity has come to the forefront. By protecting police officers from liability, even when they violate people’s constitutional rights, this doctrine has become the cornerstone of our near‐​zero accountability policy for law enforcement. Shamefully, the Supreme Court recently declined the perfect opportunity to address the mess that it made by inventing this doctrine. But Congress has also turned its attention to the issue, and there are now several pending legislative proposals to abolish qualified immunity. And that development has compelled the few proponents of the doctrine to actually put forward arguments in its defense.

Some of these arguments may sound reasonable, but they all rest on misunderstandings or misrepresentations about what qualified immunity actually is, and how it works. I’ve already discussed some of these points in this recent post, as well as on Unlawful Shield’s FAQs about qualified immunity. But I thought it would be helpful to collect and rebut in one place all of the most common arguments that I’ve heard come up in recent congressional hearings and other public commentary.

1. “We need qualified immunity so that police won’t hesitate when they have to make split‐​second, life‐​or‐​death decisions.”

It is certainly true that police officers have to make difficult, on‐​the‐​spot decisions under conditions of danger and uncertainty. So, the argument goes, it is both unfair and unwise for courts to second guess these decisions, and holding officers personally liable whenever they make the “wrong call” will deter them from carrying out their duties in the first place.

This argument is reasonable, but it has nothing to do with qualified immunity. Our underlying legal standards for determining whether a constitutional violation occurred in the first place are already highly deferential to on‐​the‐​spot police decision‐​making. The Supreme Court’s decision in Graham v. Connor sets out an “objective reasonableness” standard for excessive‐​force claims, which makes clear that courts cannot second guess on‐​the‐​spot policing decisions:

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split‐​second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

To clarify, this decision has nothing at all to do with qualified immunity. In Graham, the Court was simply explaining that unless an officer acts objectively unreasonable, under the circumstances known to them at the time, they haven’t violated the Fourth Amendment at all.

Keep in mind that qualified immunity only matters in the circumstance where (1) a civil rights plaintiff can show that the defendant did violate their constitutional rights, but (2) those rights were not “clearly established” at the time of the violation (i.e., there was no prior case involving nearly identical facts). So if a police officer didn’t commit a constitutional violation in the first place, then they don’t need qualified immunity to protect them. Qualified immunity is therefore entirely unnecessary to ensure that police can make quick, split‐​second decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.

Moreover, the very fact that officers do have to make difficult, split‐​second decisions underscores how the “clearly established law” standard rests on a bizarre legal fiction. After all, the way that standard works is that police cannot be held liable for their misconduct unless a previous judicial decision has already held that the particular misconduct they committed was unconstitutional. But this supposes that individual police officers are carefully reading the most recent judicial decisions by their relevant appellate court and comparing the exact fact patterns of those cases to scenarios they encounter on the street when making split‐​second decisions. This is, obviously, not how policing actually works. As one federal judge recently stated:

The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day‐​to‐​day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?”

In other words, qualified immunity is not only unnecessary for ensuring that police have discretion to make on‐​the‐​spot decisions, but also practically incapable of providing the sort of protection that proponents claim is needed.

2. “Eliminating qualified immunity would negatively impact recruitment and retention of police officers because they would fear being sued.”

There are many, many things wrong with this argument.

First, as I discussed above, even in the absence of qualified immunity, it is by no means easy to demonstrate that a police officer violated your constitutional rights. Our Fourth Amendment jurisprudence incorporates tremendous deference to police decision‐​making, and officers who genuinely make reasonable, good‐​faith decisions about arrests, use of force, etc., are already protected from being sued. The idea that eliminating qualified immunity would somehow lead to ruinous lawsuits anytime someone disagreed with an officer’s use of force is reckless, inaccurate fear‐​mongering.

Second, even today, police officers are nearly always indemnified for any settlements or judgments against them, meaning that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, a UCLA law professor and one of the foremost scholars of qualified immunity, demonstrated in a 2014 article called Police Indemnification that, in her study period, “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” In other words, even when plaintiffs do overcome qualified immunity, the individual police officers rarely pay a dime.

I have written elsewhere about how this practice of near‐​automatic indemnification is itself problematic, because it fails to provide for individualized accountability for officers who violate people’s rights. A better practice, as my colleague Clark Neily has also discussed, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. That way, officers would have a clear, direct interest in making sure their own behavior conformed to constitutional standards — because unprofessional officers who routinely committed misconduct would see their premiums go up, and would eventually be priced out of the market.

Nevertheless, as things currently stand, individual officers are almost never required to pay anything, even when they are found to have committed a constitutional violation. The immediate effect of eliminating qualified immunity would not be to subject these officers to huge judgments, but rather to ensure that victims whose rights are violated have a remedy. 

Third, keep in mind that qualified immunity means law enforcement is held to a far lower standard of liability than basically any other profession. Imagine, for example, that doctors started arguing that they should no longer be liable for malpractice, unless some other doctor had already been held liable for committing the very same kind of malpractice. Nobody would take this argument seriously, and rightfully so. The reality is that doctors, lawyers, accountants, engineers, architects, and professionals of all sorts expect to face liability if they commit professional misconduct. And in every context except for law enforcement, we comfortably accept the premises that the potential for liability (1) justly compensates the victims of professional misconduct, (2) encourages professionals to conform their behavior to legal standards, and (3) doesn’t discourage people from entering the profession in the first place.

So, the relevant question should not be “would eliminating qualified immunity deter people from becoming police officers?” It should be “why should police officers, unlike every other profession in our society, have special protection against liability, even when they break the law?”

Fourth, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. To the contrary, qualified immunity has dramatically undermined trust and respect for police officers, by telling the public that members of law enforcement can routinely get away with egregious misconduct. There is ample evidence that policing is far more difficult and dangerous when officers lack community trust, which means that qualified immunity is making it harder, not easier, for police to do their jobs.

Indeed, the more thoughtful members of law enforcement have already recognized as much, and for that very reason (among others) have called for an end to qualified immunity. For example:

  • The Law Enforcement Action Partnership (“LEAP”) has joined several of Cato’s amicus briefs calling for the Supreme Court to reconsider qualified immunity, and they recently put out a set of policy recommendations stating that “Congress should pass a law to ensure that the qualified immunity doctrine does not stop officers who break the law from being held legally accountable.” LEAP’s Executive Director, Major Neill Franklin (Ret.), explained that “[a]ccountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.”
  • Ronald Davis, Chair of the Legislative Committee of the National Organization for Black Law Enforcement Executives (“NOBLE”), and a retired chief of police, submitted testimony to the House Judiciary Committee, in which he said that “the first action step in reconstructing a new policing system is to take immediate steps in strengthening police accountability and building trust with communities.” To that end, he recommended that Congress “[e]nd the qualified immunity doctrine which prevents police from being held legally accountable when they break the law.”

3. “Qualified immunity is necessary to prevent frivolous lawsuits against police officers.”

Whether or not you think “frivolous civil‐​rights litigation” is a serious problem, it’s a problem that qualified immunity, by its very nature, is incapable of addressing.

There are basically two things we might mean by saying that a particular lawsuit is “frivolous.” First, it could mean that a lawsuit is not legally meritorious, meaning that the facts alleged, even if true, simply do not make out a constitutional violation at all. If that’s the case, then qualified immunity, by definition, is unnecessary to dismiss the lawsuit, because qualified immunity only matters when the defendant has committed an actual constitutional violation, but where a court nonetheless determines that the law wasn’t “clearly established.” If the underlying lawsuit is meritless, however, then it can be dismissed for “failure to state a claim upon which relief can be granted,” without any need to invoke qualified immunity.

Second, a “frivolous” lawsuit could be one that is not factually supported — in other words, maybe the facts alleged, if true, would make out a constitutional violation, but the plaintiff is either mistaken or lying about the facts. But in that case, qualified immunity does little to help in dismissing the case, because of course, plaintiffs could theoretically lie their way around qualified immunity as well, just by alleging facts that do happen to closely match the fact patterns of prior cases.

The tools that we use to address and deter frivolous litigation are entirely separate from qualified immunity. Heightened pleading standards require plaintiffs to make specific, factual, non‐​conclusory allegations showing that they are entitled to relief. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to attest that they have a good‐​faith basis for the factual and legal arguments in all submitted pleadings, and it provides for sanctions if they fail to meet this standard. Depending on the particular subject matter and context, more stringent requirements may apply. Rule 9(b) of the Federal Rules of Civil Procedure imposes extra pleading requirements for alleging fraud; the “anti‐​SLAPP laws” enacted by many states allow for early dismissal of frivolous defamation claims; and the Prison Litigation Reform Act of 1996 limited the ability of prisoners to bring successive, non‐​meritorious lawsuits.

Assuming there is a problem with frivolous civil rights litigation, addressing it will require rules like these. But qualified immunity does basically nothing to stop “frivolous” lawsuits because, again, the doctrine only kicks in when the underlying lawsuit is meritorious. The idea that eliminated qualified immunity will result in a wave of frivolous litigation is more baseless fear‐​mongering — qualified immunity does nothing now to prevent such litigation, so we shouldn’t expect a major change in this regard if we abolish the doctrine.

4. “Qualified immunity protects police officers from the time and expense of litigation by quickly filtering out bad lawsuits.”

This is a somewhat more sophisticated version of the previous defense, but it’s still mistaken. The argument goes like this: “Yes, in theory, non‐​meritorious lawsuits should still end up failing, even in the absence of qualified immunity. But it will take substantial time and resources for officers to successfully defend themselves against these lawsuits. Therefore, even if qualified immunity ends up catching some meritorious cases as well, the doctrine is worth the cost, because it will let defendants quickly and easily dismiss the frivolous ones.”

This objection might sound sensible in the abstract, but in practice, qualified immunity is remarkably ineffective at fulfilling this intended purpose. I come back to the scholarship of Joanna Schwartz, who demonstrated two key points in a 2017 article called How Qualified Immunity FailsFirst, only a small fraction of the cases in which qualified immunity could be raised are ultimately dismissed on these grounds — which indicates that other mechanisms were sufficient to weed out genuinely non‐​meritorious claims. Second, when cases were dismissed on the basis of qualified immunity, this occurred far more frequently at the summary judgment stage of litigation, rather than at the motion‐​to‐​dismiss stage. In other words, even when defendants successfully got a claim dismissed on the basis of qualified immunity, this usually only occurred after discovery, which is generally the longest and most costly stage of litigation anyway. This means that qualified immunity is actually failing at its own goals of preventing government defendants from being subjected to lawsuits in the first place.
If it is actually the case, or it ends up being the case, that non‐​meritorious civil rights litigation is a costly and distracting problem for police officers, then that issue is worth addressing. Perhaps it’s worth investigating whether something like anti‐​SLAPP laws would be useful in the civil rights context, so that factually unsupported claims can be quickly dismissed. But qualified immunity is uniquely ill‐​suited to address this supposed problem; the practical effect of the doctrine is not to weed out bad cases, but to deny relief to victims whose rights have been violated.
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This is not an exhaustive list of all the arguments surrounding qualified immunity, but they are the responses I’ve seen most frequently in the recent political dialogue. Many of the individuals who have raised these objections to eliminating qualified immunity have probably done so in good faith, based on a misunderstanding of what the doctrine actually is and how it works. Indeed, such misunderstanding is understandable, given how much misinformation and fear‐​mongering there is surrounding the issue. But for those who are genuinely trying to understand, I hope this post will be a helpful resource in illustrating just how hollow the defense of qualified immunity truly is.