Criminal Law and Civil Liberties

September 19, 2019 1:31PM

Bringing Drug Use Out of the Shadows Reduces Harm to the Community as Well as to Users

Many critics of marijuana legalization raise concerns that marijuana dispensaries might serve as loci for increased local criminal activity. Now there is empirical evidence that just the opposite occurs.

A new study reported in the September issue of Regional Science and Urban Economics examined local crime rate data from 2013 through 2016 in Denver, Colorado, where legal cannabis sales to adults began in 2014. The researchers reported:

The results imply that an additional dispensary in a neighborhood leads to a reduction of 17 crimes per month per 10,000 residents, which corresponds to roughly a 19 percent decline relative to the average crime rate over the sample period. Reductions in crime are highly localized, with no evidence of spillover benefits to adjacent neighborhoods.

The study found that the majority of the crimes reduced were of a nonviolent nature.There were no changes in the number of cannabis-related crimes near dispensaries, but there was a decrease in the number of crimes related to methamphetamine, cocaine, and heroin. The authors speculated that this may be in part due to the increased presence of law enforcement near dispensaries serving as a deterrent to criminal activity.

The authors stated they did “not find increases in marijuana crimes such as cultivation, possession, or sales nearby,” and no increase in crimes associated with marijuana intoxication, “since there is essentially no change in the number of crimes with marijuana as a ‘contributing factor’ near locations that gain dispensaries.”

A 2017 study in Preventive Medicine with a more limited time range looked at crime rates in South Los Angeles, examining local crime rates in neighborhoods surrounding medical marijuana dispensaries (MMDs), tobacco shops, and alcohol retailers, from January through December 2014. The researchers found no increase in crime rates related to the presence of medical marijuana dispensaries, but an increase in crime surrounding tobacco and alcohol outlets:

Results indicated that mean property and violent crime rates within 100-foot buffers of tobacco shops and alcohol outlets—but not MMDs—substantially exceeded community-wide mean crime rates and rates around grocery/convenience stores (i.e., comparison properties licensed to sell both alcohol and tobacco).

While these studies should help alleviate concerns raised by marijuana prohibitionists about the effect that legalization may have on local crime, similar arguments are used by those who oppose the creation of Safe Injection Facilities for IV drug users. As I have written here, SIFs have been working to reduce overdoses and the spread of disease since the 1980s in more than 120 cities in Europe, Canada and Australia, and there is an “underground” SIF functioning in the US illegally since 2014. Federal law prohibits Safe Injection Facilities in this country, and the Department of Justice is stifling efforts to establish them in Philadelphia, Seattle, San Francisco, Boston, and New York City.

Among concerns raised by opponents is that they will be a magnet for IV drug users, creating a visual disturbance to neighborhood residents. The counter-argument is that SIFs will actually bring the drug users in off the streets, letting them use their drugs out of the view of young impressionable children and other nearby residents, and will reduce the presence of used needles on the streets and sidewalks.

Another concern is that SIFs may be loci for criminal activity. But, as in the case of marijuana dispensaries, those concerns, while understandable, are not borne out by the evidence. A 2017 systematic review by Canadian researchers reported in Current HIV/AIDS Reports found Supervised Injection Facilities were “associated with improvements in public order without increasing drug-related crime.”

The takeaway from all of this is that bringing drug use out of the darkness of the underground reduces harms to those who don’t engage in drug use as well as those who do.

September 13, 2019 4:08PM

The IRAA and SLAA: Moving Beyond Nonviolent Drug Offenders to Address Mass Incarceration

Prison Bars

“Mass incarceration” has become the term to describe the millions of people held in jails and prisons throughout the United States. The oft-cited statistic that Americans make up roughly 5 percent of the world’s population but hold 25 percent of the global prisoners remains true. Part of the reason for this is that the United States incarcerates individuals for much longer sentences than most of the rest of the world. And while nonviolent drug offenders serving decades-long draconian sentences have gotten the most attention in legislation, presidential debates, and executive commutations, the data show that most people who are serving time in prison are in for violent offenses. Now, what “violent” means varies by jurisdiction—illegal possession of firearms, being a driver of a getaway car, and burglaries against vacant properties can nevertheless be considered violent in some states—but meaningfully reducing our incarcerated population will unquestionably require releasing people who have been convicted of serious violent crimes.

If you just flinched a bit, bear with me.

Most people who are sentenced to prison are going to be released at some point. They will at some point be expected—indeed, obligated—to rejoin society. So, for most inmates, the issue of release is a question of “when” not “if.” It follows, then, that if we want to reduce the prison population, we may be able to use early release as a mechanism for doing so while preserving the ideals of justice.

A recent law implemented in the District of Columbia provides a good example of how to move toward decarceration productively. In 2016, the D.C. City Council passed the Comprehensive Youth Justice Amendment Act, including a component known as the Incarceration Reduction Amendment Act (IRAA). The IRAA allowed D.C. Superior Court judges to revisit sentences imposed on people who were convicted of violent crimes when they were juveniles.

We know adolescents—particularly adolescent males—are in the prime age cohort for making bad decisions without full comprehension of the consequences. This applies to small decisions and big ones, and under bad conditions—poverty, trauma, intoxication, and access to weapons, to name a few—the worst decisions can become devastating for themselves and others. None of these factors excuse a person’s actions, but when added to their youth, they help explain such terrible decisionmaking. Indeed, there is science to back this up. As Mark Joseph Stern explained in Slate:

Scientists now know that the part of the brain that inhibits impulse and risky behavior does not fully develop until age 25. The Supreme Court has noted this fact in prohibiting the execution of juvenile offenders and curtailing juvenile sentences of life without parole. It has explained that “parts of the brain involved in behavior control continue to mature through late adolescence”—that is, the early 20s. Young individuals are therefore “less culpable” due to their “immaturity, recklessness, and impetuosity”; “less likely” to be deterred by “possible punishment”; and more likely to have “potential for rehabilitation.”

Building on this science, local lawmakers want to expand IRAA to cover individuals who were under the age of 25 when they committed the crime for which they were convicted. This new law is known as the Second Look Amendment Act of 2019 (SLAA). Although SLAA has already drawn criticism and hyperbole from the police chief and the U.S. Attorney’s Office for the District of Columbia, there’s good reason to believe that this law will serve the best interests of D.C. and the eligible offenders.

To understand how SLAA would work, we can look to what has already happened with the IRAA. The IRAA allowed judges to revisit juvenile offenders many years after their crimes and convictions to determine whether they’ve matured and become better people while incarcerated. As amended in 2019, inmates that have served at least 15 years of their sentence but are not yet eligible for parole may apply for early release. Release is by no means automatic. The inmate’s application is thoroughly reviewed by a D.C. Superior Court judge, and other stakeholders involved with the offenders’ cases—including victims, community members, and the surviving families—may be consulted before a determination is made. Contrary to some claims, the law specifically provides for judges to consider the nature of the offense when determining whether to grant release.

Since the IRAA has been passed, 18 inmates have been released under supervised probation because of the program. According to local defense attorney James Ziegler, several of them have become violence interrupters and neighborhood advocates to prevent more young people from going down the paths they took to prison. Zeigler also notes that none of the offenders released has recidivated—that is, been sent back to prison for a new crime.

At this point, it might be helpful to think about what exactly society wants its criminal justice system to accomplish after a crime has been committed. Most people agree on several core functions that are essential to a decent criminal system, although how important each function is weighed will vary from person to person. These functions include, but may not be exclusive to: accountability for wrongdoing, punishment for wrongdoing, rehabilitation for wrongdoers, and keeping dangerous wrongdoers off the streets through incapacitation. Putting aside efforts to decriminalize behavior that libertarians and others don’t find blameworthy in the first place, criminal justice reform should be considered with these four systemic objectives in mind.

IRAA and SLAA can be evaluated thus:

  • Accountability—This is the easiest one. The offenders have already been found guilty of their crimes so we know they have received society’s condemnation by means of a criminal conviction.
  • Punishment—To be eligible for relief under IRAA—and the SLAA, if passed into law—each offender must serve at least 15 years of his sentence. In the abstract, people tend to think of years in prison as less severe than they are. If you’ve ever heard or thought, “He only got five years for that?” you’ve probably been guilty of this. As laypeople and potential victims, we think of how angry we are about a particular crime, and then tack on a number—almost at random—to that offense. Legislators are no different, and sometimes they’re worse.

    But fifteen years is a very long time for a human being to spend living in a cage. The offender’s friends and loved ones have gone about their lives without them; the world has changed dramatically during that time; and the incarcerated person has missed technological innovations and cultural changes, but also graduations, weddings, births, funerals, and other social functions that help bring joy and comfort to our lives. Moreover, the personal changes between adolescence to adulthood are considerable for most individuals. One not need be a neuroscientist or sociologist to understand that most people behave differently in middle age than they do in middle or late adolescence. Whether or not an offender has been punished “enough” will vary, but no one can honestly say that 15 years in prison is a slap on the wrist.

    So how long is the right amount of time? Considering the other functions of criminal justice, of which punishment is only one prong, it makes sense for the system to contemplate what society gains or loses if an offender spends unnecessary years in prison rather than returning as a productive member of society. Put in economic terms: society may get decreasing marginal utility from keeping a sufficiently punished, working-age inmate in prison rather than allowing him back into society.

  • Rehabilitation—Closely related to whether a person has been punished enough is whether they have been rehabilitated. That is, whether or not the personal failures that led to the criminal behavior in the first place have been addressed by the inmate. This will invariably involve judgment calls—including an assessment whether the person will likely reoffend and return to prison—but people change over time. Under the IRAA and SLAA, there will be at least 15 years of prison records to indicate whether they have been a “model prisoner” or otherwise shown marked improvement over time.

    Recall, though, the IRAA and SLAA also allows the judge to determine individual cases after talking with stakeholders—including victims—to determine whether the person should be released. While not everyone may be happy with a judge’s determination, IRAA and SLAA contain a built-in mechanism for a judge to determine whether an inmate will be likely to make better decisions when he is released than he did before he went in.

  • Incapacitation—Clearly, a minimum of 15 years in prison has achieved the result of incapacitating the individual for that amount of time. But part of the IRAA and SLAA processes aim to determine whether more time is required to keep the public safe. While there is no evidence that long prison sentences deter crime by fear of their severity, there is evidence that people typically “age out” of crime because older people are less likely to engage in behaviors that lead to prison sentences. This is not universal—hence the need for thorough individual evaluations—but it follows that the impulses and peer effects that can lead young men to violence are less prevalent later in life. Those who have been released to date have posed no danger to the community and, in fact, may be making it a safer place to live.

Because most inmates are going to be released back into society at some point, it makes sense to revisit the cases of people who have quite literally grown up in prison. If implemented properly, the IRAA and SLAA can reduce incarceration while satisfying the core goals of criminal justice.

August 25, 2019 3:30PM

FamilyTreeDNA, Government Overreach, and Unethical Nudges

A disturbing story about FamilyTreeDNA highlights issues about consumer privacy, government collaboration, and poor stewardship by a private company. Digging deeper, the story also highlights how behavioral economics can go awry, through self-serving choices by a moralistic CEO that violate basic ethical principles of choice architecture design. Bad nudges is an issue I have highlighted before in the context of Kentucky Medicaid plan choice and state-run auto-IRAs.

The short version: FamilyTreeDNA’s database contains more than 1.5 million customers, and the FBI approached company president Bennett Greenspan in late 2017 and early 2018 to access those records in hopes of finding genetic links for some unsolved crimes. As the Wall Street Journal notes:

He didn’t tell the FBI attorney to come back with a court order. He didn’t stop to ponder the moral quandaries. He said yes on the spot. “I have been a CEO for a long time,” said Mr. Greenspan, 67 years old, who founded the Houston-based company in 1999. “I have made decisions on my own for a long time. In this case, it was easy. We were talking about horrendous crimes. So I made the decision.”

Any libertarian would certainly agree that consumers and companies should be free to come to any agreement they want on sacrificing personal privacy for other product characteristics (including lower prices). Even with an open-ended user agreement, it is hard to fathom that even the most imaginative users from 15 years ago would have envisioned the sort of law enforcement overreach that we see today. If informed, some subset of customers would likely support FamilyTreeDNA’s collaboration with the FBI. The user agreement did not require the company to inform customers that the FBI was searching their records, and the company did not inform customers until after Buzzfeed revealed the collaboration in January 2019.

Although the CEO appears to be an enthusiastic participant in the FBI’s dragnet, this may be the exception, rather than the rule. Other DNA testing companies – such as 23andMe, Ancestry, and MyHeritage – do not collaborate with law enforcement unless legally required to do so. One must wonder how much extra legal costs are borne by private companies from law enforcement overreach like this, and how much it would cost a company to vigorously fight back against the fishing expeditions? Surely, the cost of law enforcement overreach is passed on to customers who pay more in submission fees, in order to have their privacy invaded.

It is important to put the company’s subsequent response to the fallout into a behavioral economic lens.

In March (2019), FamilyTreeDNA said it figured out a way to allow customers to opt out of law-enforcement matching but still see if they matched with regular customers. … (Mr. Greenspan) said less than 2% of customers have requested opting out of law-enforcement searches.

In his pioneering work, Prof. Cass Sunstein lays out ethical considerations for choice architecture. He argues that the objective of nudging is to “influence choices in a way that will make the choosers better off, as judged by themselves.” In this context, when confronted with obvious outrage and bad publicity, FamilyTreeDNA had important decisions to make. Sunstein’s “as judged by themselves” principle would suggest the opposite choice architecture: the company should have set the default as automatic opt-out of law enforcement matching, and allowed users to opt-in to law enforcement matching if they so decided. Many of the 1.5 million customers are likely infrequent, inactive users of the website, and many were likely unaware of the FBI collaboration, even after the news broke. They would be appalled by the collaboration. Mr. Greenspan’s opt-out figure of 2% strikes me as a very large response, given that FamilyTreeDNA has customers going back 20 years, and many likely ignore emails and news stories about this scandal.

The criticism of this company’s choice architecture – and feature stories in prominent newspapers – of course would not exist without unabated government overreach. From a handful of inquiries in early 2018, there are now 50 law-enforcement agencies requesting matching from FamilyTreeDNA. Buyer beware.

August 23, 2019 5:21PM

Dissenters in Fifth Circuit Qualified Immunity Case Misunderstand the Relationship between “Originalism” and Section 1983

Yesterday I wrote about two recent en banc decisions from the Fifth and Eighth Circuits on the subject of qualified immunity, and how those cases fit into the rising tide of opposition to the doctrine generally. But I wanted to expand upon a point of disagreement between two of the dissents in Cole v. Hunter (the Fifth Circuit case), which may prove to be one of the central questions if and when the Supreme Court decides to reconsider the doctrine -- namely, the relationship between qualified immunity, Section 1983, and originalism. I'll note that both Josh Blackman and Damon Root have already written about this aspect of the Cole decision, but as someone who's spent the better part of the last two years waging a campaign against qualified immunity I wanted to offer my take on the many ways in which Judges James Ho and Andrew Oldham seriously misunderstand qualified immunity, Section 1983, and originalism itself.  

As I noted previously, Judge Don Willett -- a Trump appointee and one of the judges on his shortlist for the Supreme Court -- has emerged as a prominent critic of qualified immunity, and has now repeatedly urged the Supreme Court to reconsider the doctrine. A few months ago, in Zadeh v. Robinson, he explained how "[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly." Judge Willett again picked up this theme in his separate dissent in Cole, beginning his opinion with the assertion that "[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal." (Note that Judge Willett agreed with the other dissenters that, under current precedent, the defendants in Cole were entitled to immunity, which is why his opinion was also a dissent, even though it takes a very different approach.)

Perhaps sensing that the tide is turning against qualified immunity, Judges Ho and Oldman -- both Trump appointees themselves -- wrote separately to respond to the general idea that qualified immunity should be reconsidered. In particular, they say the following about the "originalist" critique of qualified immunity -- i.e., the historical fact that the common law of 1871 (when Section 1983 was first passed) provided absolutely nothing like the sweeping, across-the-board defense for state officials that characterizes qualified immunity today:

[S]ome have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution. . . . As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J., joined by Thomas, J., dissenting).

A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand, as well as limit, § 1983 liability:

"[O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted . . . . [But] [t]he § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom, or usage of any State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law."

In other words, qualified immunity may well lack any plausible textual or historical basis. But because, say Judges Ho and Oldham, the Supreme Court erroneously expanded the reach of Section 1983 in Monroe v. Pape (by holding that state officials could be sued even when they were acting contrary to a state's own laws), then two wrongs make a right, and we should just keep qualified immunity as is, as a kind of compensating error. Indeed, they conclude this section of the opinion by saying: "If we’re not going to do it right, then perhaps we shouldn’t do it at all" -- with "it" here meaning, actually interpret statutes as written.

Lest this argument seem like an abstruse, academic rejoinder, I can personally attest, having now participated in or observed several debates on qualified immunity, that this is the most frequently and fervently raised rebuttal to the otherwise insurmountable assertion that modern qualified immunity lacks any plausible historical basis. But despite its veneer of reasonableness, this "two wrongs make a right" argument is so deeply, fundamentally flawed, on so many levels, that it's worth spelling out each of them in detail:

First, perhaps a pedantic point, but Judges Ho and Oldman's august reference to the "Founder's Constitution" is out of place in this discussion. Qualified immunity is not a constitutional doctrine; it is, nominally, a gloss on the statute currently codified at 42 USC § 1983, but which was originally enacted by the Reconstruction Congress in 1871. And as even the Supreme Court has acknowledged, “the statute on its face does not provide for any immunities.” Malley v. Briggs, 475 U.S. 335, 342 (1986). Thus, the only conceivable legal basis for qualified immunity is the Supreme Court's false assertion that “[c]ertain immunities were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). I will not go into detail here explaining why this defense of the doctrine fails utterly as a matter of actual historical fact, but Will Baude has addressed the question extensively, and I summarize the issue here. Suffice to say, the debate here isn't over "originalism" as an overarching theory of constitutional interpretation, and isn't really about the Constitution at all -- we're talking about how to correctly interpret and apply a particular statute.

Second, Judges Ho and Oldman (and Justice Scalia, in his Crawford-El opinion) seem to take it as a given that Monroe v. Pape was wrongly decided, which is what gives them justification to accept the obvious (but in their view, counter-balancing) errors with qualified immunity itself. But that assumption simply isn't justified -- indeed, there's a very good originalist argument that Monroe was, in fact, correctly decided, which of course would entirely negate this "two wrongs make a right" defense of qualified immunity. To restate Justice Scalia's (and by extension, Judges Ho and Oldman's) criticism of Monroe: The text of Section 1983 creates liability for those who act “under color of any statute, ordinance, regulation, custom, or usage of any State.” Thus, in Justice Scalia's view, a state official can only be liable under Section 1983 if they were, in fact, acting in accordance with state law. Therefore, by holding that state officials could be liable even when their actions were not authorized by state law, the Monroe Court massively expanded liability under Section 1983, in contravention of the statutory language.

Though superficially plausible, the problem with this argument is that it glosses over the meaning of the phrase "under color of." After all, the statute could have been written to cover violations committed "in accordance with any statute, ordinance, regulation, custom, or usage, of any State." If that were what the statute said, Justice Scalia's criticism of Monroe would be well taken. But, as a historical, originalist matter, that is simply not what the phrase "under color of" means. To the contrary, this phrase is actually a longstanding term-of-art which was well understood to encompass false claims to authority. As detailed by Steven Winter in an article on exactly this subject, the use of this phrase goes back more than 500 years, to an English bail bond statute that voided obligations taken by sheriffs “by colour of their offices,” if they failed to comply with statutory requirements. In other words, it encompassed illegal acts by government agents who abused or exceeded their statutory authority -- which is exactly the sort of unlawful conduct recognized by Monroe. Therefore, contra Justice Scalia's suggestion in Crawford-El, a faithfully originalist understanding of Section 1983 would seem to support the result in Monroe. And if that's the case, then obviously the whole "two wrongs make a right" theory collapses.

Third, let's assume -- as I do not think is the case -- that Monroe v. Pape was incorrectly decided. If we are unwilling to revisit that decision on "originalist" grounds, is that a sufficient reason to refuse to reconsider qualified immunity as well? Absolutely not. For one, even if Monroe were wrong, it meets absolutely all the traditional criteria for respect as precedent -- even if incorrect, the question is at the very least a close call, in light of the textual/historical argument I noted above; it has produced a clear, unambiguous rule, which lower courts routinely apply without any confusion or disagreement; and it has been thoroughly accepted by both the judiciary and the general public as legitimate and appropriate.

In sharp contrast, modern qualified immunity doctrine is at the opposite end of the spectrum on all of these criteria. No one -- absolutely no one -- will look you in the eye with a straight face and tell you that contemporary qualified immunity doctrine represents the best interpretation of the text and history Section 1983. As evidenced by Justice Scalia's Crawford-El opinion and Judges Ho and Oldham's dissent in Cole, the judicial defenders of qualified immunity aren't even trying to make this argument. Indeed, the most robust defense of the doctrine that I'm aware of is the recent piece by Aaron Nielson and Chris Walker, appropriately titled "A Qualified Defense of Qualified Immunity" -- and even there, the most they argue is that the historical evidence isn't quite as one-sided as Will Baude suggests, and that while some form of qualified immunity might be justified, the Court's current doctrine is still in need of correction.

Moreover, in contrast to the clear rule from Monroe, the Court's "clearly established law" standard has proven hopelessly amorphous, malleable, and incapable of consistent, predictable application in lower courts. And as evidenced by the diverse and growing chorus of judges, academics, and public-policy voices calling for the Supreme Court to revise or abolish the doctrine, it has hardly been accepted as legitimate. Far from being a mere technical error, this noxious doctrine regularly denies relief to victims of egregious state misconduct, undermines accountability for government agents at a structural level, and exacerbates the national crisis of confidence in law enforcement generally. Thus, even if both Monroe and qualified immunity merit originalist criticism, there is a far, far stronger case for reexamining the latter than the former.

Fourth, setting aside the object-level questions of whether Monroe was correct, how bad it is compared to qualified immunity, etc., we should reject the "two wrongs make a right" approach to judicial decision-making at a fundamental level. Yes, the Supreme Court sometimes reaches the wrong answer. Yes, sometimes those wrong answers will distort other areas of law. But in a world where we're going to predictably disagree on which cases are correct or not, "you got this case wrong so I'm allowed to get this other case wrong" is a license for endless, unresolvable turmoil. If qualified immunity has gone "too far" in correcting for the supposed mistake in Monroe, are judges allowed to distort the meaning of other statutes to fix this problem? What compensating errors will be necessary to address the distortion to those statutes? If we all agree the Supreme Court has made some mistakes, then "two wrongs make a right" becomes a fully general argument for defending flawed legal conclusions, so long as they can plausibly be tied to a past alleged mistake. That way lies madness, not the rule of law.

More generally, Judges Ho and Oldham suggest that, if we're going to reconsider qualified immunity on originalist grounds, we're somehow honor-bound to reconsider Monroe as well. But that's just not how doctrine is developed in our adversarial system. The Supreme Court doesn't act as a regulatory body, issuing advisory opinions on several related subjects simultaneously so as to ensure general harmony in the case law; rather, it resolves disputes in the individual cases it decides to take. Textualism and originalism, at their best, aim to provide a principled, predictable, value-neutral means of deciding cases. Of course, some questions will still be hard even under this approach, and how originalists should deal with non-originalist precedent is a famously thorny problem. But the best that judges can do is try to get the right answer in each case that comes before them -- and the "two wrongs make a right" theory renders this principled approach impossible.

* * *

In my view, the opponents of qualified immunity have made a persuasive argument that the doctrine is utterly without legal or historical justification, that it is impossible to apply with the consistency or predictability that generally warrant respect for precedent in the first place, and that is actively corrupting what would otherwise be the best means we have of ensuring accountability for government agents. That argument deserves to be met on its own terms. If the defenders of qualified immunity think Monroe is wrong too, then fine. Let them make that argument. Let them engage in the detailed textual and historical analysis that would actually be necessary to justify it. Let them convince the judiciary and the public at large that this error is so egregious and harmful that it warrants reconsideration. I'm quite skeptical these folks actually want to make such an argument, but if they do, it deserves to be met on its own terms as well. But it is cowardly, unprincipled, and decidedly anti-originalist to refuse to meet the challenge to qualified immunity face-to-face, just because there's some other alleged mistake to hide behind.

August 22, 2019 2:35PM

Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity

In the last week, the Fifth and the Eighth Circuits, sitting en banc, have each issued major, fractured decisions on the subject of qualified immunity -- the judge-made defense to civil rights claims under Section 1983, which shields state actors from liability for their misconduct, even when they break the law. In Cole v. Hunter, decided yesterday, the Fifth Circuit, in an 11-7 decision, affirmed the denial of summary judgment for two defendant police officers, who shot a teenage boy and then lied about what happened. The lawsuit brought by the victim and his family will therefore be able to go to trial, making this one of the rare instances where a civil rights plaintiff is able to overcome qualified immuniity. But in Kelsay v. Ernst, decided last week, the Eighth Circuit held, 8-4, that a police officer was entitled to qualified immunity, after he had grabbed a small woman in a bear hug and slammed her to ground -- because she walked away from him. Although the courts here reached different outcomes, both cases amply illustrate the legal, practical, and moral infirmities with qualified immunity. The fractured decisions and many separate opinions in both cases also make clear that the doctrine is on increasingly shaky footing with both the judiciary and the general public.

I. Cole v. Hunter: A rare but narrow victory for a victim of egregious police misconduct

This Fifth Circuit case arose out of an incident in Garland, Texas in October 2010, when police were looking for Ryan Cole, then a 17-year-old boy, who had reportedly been walking around the neighborhood with a handgun. Ryan was seen by some officers and ordered to stop, but Ryan pointed the gun at his own head and walked away toward a wooded area. When Ryan reemerged, a group of officers observed him for about five seconds and did not announce themselves or give any warning. Then, while Ryan was facing away from them with the gun still pointed at his head, one or more of the officers fired at him, striking him several times and causing him to involuntary discharge his own gun into his skull and brain. When two of the officers were questioned after the shooting, they falsely claimed that Ryan had turned to face them and pointed his gun at them before they fired -- an assertion belied by ample forensic and physical evidence (specifically, the location of Ryan's bullet wounds, and the location of shell casings and Ryan's blood).

Ryan and his family brought a civil rights suit against these officers, claiming that they used excessive force and fabricated evidence in violation of Ryan's Fourth and Fourteenth Amendment rights. The district court denied qualified immunity to the defendants at summary judgment, a panel of the Fifth Circuit affirmed, and the Fifth Circuit then agreed to rehear the case en banc. The court then held, 11-7, that a reasonable jury could have found that Ryan posed no threat to the officers, and that it was clearly established that “shooting a mentally disturbed teenager, who was pointing a gun the entire time at his own head and facing away from the officer, in an open outdoor area, and who was unaware of the officer’s presence because no warning was given prior to the officer opening fire, was unlawful." Although the defendants presented a starkly different view of the facts, the majority correctly recognized -- as courts often fail to do in qualified immunity cases! -- that it lacked jurisdiction to consider the officers' competing factual narrative in this appeal. Rather, the disputed facts would have to be resolved by a jury.

Seven judges dissented, however. The principal dissent, by Judge Edith Jones, accused the majority of defining "clearly established law" at too high a level of generality, arguing that even if the facts clearly established that Ryan posed no threat (and thus that shooting him violated the Fourth Amendment) the relevant question for purposes of qualified immunity was "whether every reasonable officer in this factual context would have known he could not use deadly force" -- and then arguing that no prior cases involved this precise factual context. This framing in the abstract is dutiful to the Supreme Court's qualilfied immunity jurisprudence, but in application, it's clear that the degree of specificity employed by the dissent would be practically impossible to overcome. To wit, the dissent went on to say:

[T[he importance of grounding the inquiry in a specific factual context cannot be overstated. In this case, if Officer Hunter had stood a hundred feet away from Cole, or Cole had not been turning toward the officers, or Cole had put the handgun in his pocket and wasn’t touching it, the analysis of qualified immunity could be quite different.

On the one hand, the dissent is correct that the Supreme Court has insisted that immunity analysis be "particularized" to the facts of individual cases. On the other, the example of factual distinctions used by the dissent here plainly illustrate that there will never be a prior case involving all of the potentially relevant facts -- and even the Supreme Court has purported to say that a case exactly on point is unnecessary. Thus, while the dissent's analysis is not a wholly unreasonable application of existing precedent, it demonstrates how the "clearly established law" standard is inherently amorphous, and incapable of consistent, predictable application.

Most notably, Judge Don Willett filed a separate dissent in this case. Although he would have held that "the Supreme Court’s unflinching, increasingly emphatic application of 'clearly established law' compel[led] dismissal," the bulk of his opinion is devoted to explaining that "[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal." Judge Willett's dissent therefore echoes his recent criticisms of qualified immunity in Zadeh v. Robinson, although he did stress that the Supreme Court has "several 'mend it, don’t end it' options," which would substantially revise the doctrine without eliminating it entirely. Also, he again discussed the Cato-organized cross-ideological amicus brief from Doe v. Woodard, noting that "perhaps the most ideologically diverse amici ever assembled" were urging the Supreme Court to reconsider qualified immunity.

II. Kelsay v. Ernst: Greenlighting egregious and unnecessary police violence against the supposed victim of a crime

Melanie Kelsay, her three children, and an adult friend of hers were swimming at a public pool in Wymore, Nebraska. She and her friend were engaged in what she called “horseplay,” but some onlookers thought he might be assaulting her and called the police. The police arrested her friend and put him a patrol vehicle, even though she repeatedly told them he hadn’t assaulted her; they then decided to arrest her, the alleged victim of this non-crime, because she was "getting in the way of the patrol vehicle door." While talking with Deputy Matt Ernst, Kelsay saw that her daughter had gotten into an argument with a bystander, and tried to go check on her. Ernst grabbed her arm and told her to “get back here,” but released her. Kelsay then said she needed to go check on her daughter, and again began walking toward her. At that point, without giving any further instructions, Ernst ran up behind her, grabbed her, and slammed her to the ground in a “blind body slam” maneuver, knocking her unconscious and breaking her collarbone.

Kelsay then brought a Section 1983 suit against Ernst, and the district court denied qualified immunity, but a panel of the Eighth Circuit reversed, 2-1. The Eighth Circuit then agreed to rehear the case en banc, and affirmed the panel's grant of qualified immunity, in an 8-4 decision. The majority, of course, relied on the idea that there were no prior cases involving the "particular circumstances" of this case; i.e., no prior cases specifically held that "a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to 'get back here' and continued to walk away from the officer." No case exactly on point, qualified immunity, Q.E.D. The principal dissent by Chief Judge Lavenski Smith correctly noted that that the Supreme Court has never required "a case directly at point," and that here, an ample body of case law would have "put a reasonable officer on notice that the use of force against a non-threatening misdemeanant who was not fleeing, resisting arrest, or ignoring other commands violates that individual’s right to be free from excessive force."

To make matters worse, the majority refused even to decide whether Ernst's conduct did, in fact, violate Kelsay's Fourth Amendment rights. So any officer could engage in exactly the same misconduct tomorrow, and it still would not be "clearly established" that the conduct was unlawful. Judge Steven Grasz wrote a separate dissent taking issue with this particular aspect of the court's decision. Though acknowledging that courts have discretion under Pearson v. Callahan to grant immunity without deciding the merits, he argued that the exercise of such discretion was  "inappropriate in this case as it perpetuates the very state of affairs used to defeat Ms. Kelsay's attempt to assert her constitutional rights." Judge Grasz clearly grasps the circular nature of qualified immunity, noting that the judiciary's persistent refusal to decide constitutional questions under Section 1983 "imposes a judicially created exception to a federal statute that effectively prevents claimants from vindicating their constitutional rights."

III. The rising tide of opposition to qualified immunity

Two circuit courts recently decided to take qualified immunity cases en banc, even though neither case involved any new legal questions or suggested reversals of circuit precedent; that fact itself is a testament to how important this issue has become, and how much rising pressure there is to modify or abolish this doctrine. Cole and Kelsay hardly stand alone as examples of recent or ongoing high-profile qualified immunity cases. Just last month, the Eleventh Circuit issued a truly appalling decision in Corbitt v. Vickers, granting immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The Supreme Court unfortunately denied cert in Doe v. Woodard at the end of its last term, but there's another outstanding cert petition explicitly calling for the Court to reconsider qualified immunity (Baxter v. Bracey), which will be considered at the long conference on October 1st. And there will probably be additional cert petitions challenging one or more of the decisions in CorbittKelsay, and Cole.

In other words, this issue isn't going away. Day by day, more and more lower court judges add their voices to the growing chorus calling upon the Supreme Court to reconsider this noxious doctrine, and agitation by public policy groups across the ideological spectrum continues to grow. Some of the Democratic presidential candidates have even started to call for the abolition of qualified immunity. The day of reckoning may well be coming soon.

August 19, 2019 2:55PM

Why 1619 Matters in 2019

Media Name: slavery.jpg

The New York Times Magazine recently released its "1619 Project," an initiative marking the 400th anniversary of the first African slaves arriving in North America. The project is ambitious, aiming to "reframe the country’s history, understanding 1619 as our true founding." A collection of pundits have framed this project as an attempt to "delegitimize" the United States. Such commentary provides an opportunity to consider the state of American race relations and the role of slavery in American history. 

Whether or not the foundation of the United States was legitimate is an interesting political, moral,  and historical question. You can spend a career considering questions about when political violence is justified, what fair representation in a democracy looks like, how to measure and secure the consent of the governed, and what political system best secures natural rights. But these aren't the kinds of questions many 1619 Project critics have in mind when they accuse it of "delegimitizing" the United States. They're concerned that highlighting America's brutal history of slavery and its role in forming the United States undermines the American project; an experiment in self-government. 

The relationship between black people and the white institutions that oppressed them is one of the most consequential features of American history. The most prominent of America's contradictions is that its Founding documents were written by white men who owned black human beings as farm equipment, yet they expressed a commitment to liberty. 

Thomas Jefferson, the man who believed that it was "self-evident" that all men are created equal owned slaves. James Madison, the "Father of the Constitution" and author of many of The Federalist Papers, also owned slaves and was skeptical of free African Americans being a part of the American polity. After leaving the White House Madison served as the president of the American Colonization Society, which urged freed black people to move to Africa. 

During the Revolutionary War, the British frigate HMS Savage sailed up the Potomac River, its troops burning houses in Maryland in view of Mt. Vernon, George Washington's Virginia estate. The Royal Governor of Virginia John Murray had earlier issued a proclamation, offering freedom to slaves who fought for Britain. A wartime necessity rather an endorsement of full-throated emancipation to be sure, but it's nonetheless telling that seventeen of Washington's slaves fled Mt. Vernon and boarded HMS Savage. To a Virginia slave, housing in a British warship was preferable to the slave quarters belonging to the man who would become the first president of the United States.  

Bewilderment at slave owners proclaiming a devotion to liberty is hardly reserved to 21st century. In a 1775 essay on the American colonies the English writer Samuel Johnson asked not unreasonably, "how is it that we hear the loudest yelps for liberty among the drivers of negroes?" The Founding Father John Adams never owned slaves and opposed slavery, though favored gradual erosion of the institution rather than outright and immediate abolition. His wife Abigail understood the contradiction of the American Founding:

I have sometimes been ready to think that the passion for Liberty cannot be Equally Strong in the Breasts of those who have been accustomed to deprive their fellow Creatures of theirs. Of this I am certain that it is not founded upon that generous and Christian principal of doing to others as we would that others should do unto us. . . .

That the Founding generation included moral hypocrites is hardly surprising. Every collection of human beings has included flawed people. Anyone scouring history books in search of moral perfection will be left disappointed. 

It's not clear that the moral hypocrisy of some of America's founders delegitimizes the United States per se. At worst such hypocrisy makes the founding of the United States far from perfect. Even those who think that it's a stretch to say that the United States was founded "on" racism can hardly deny that it was founded with racist institutions explicitly protected. The evils of slavery don't in and of themselves negate the colonists' complaints about a lack of representation in Parliament or the fact that British officials had subjected colonists to needless, intrusive searches and other abuses against their civil rights. But they shouldn’t be overlooked. 

What is clear is that the United States has yet to fully come to terms with its history of racial violence and oppression. In large part this is because we're accustomed to measuring our race relations progress through the lenses of military, political, and legislative victories. 

Hundreds of thousands of Americans died in the wake of an illegitimate attempt at secession predicated on the preservation of slavery. The Civil War amendments to the Constitution certainly improved the document, but they hardly erased a culture of violence and racism that made them a necessity. 

The North won the Civil War, the South won Reconstruction. The explicit exemption of blacks from civil rights and political participation in the South as well as the emergence of a racist domestic terrorist organization are all evidence that wars and Constitutional amendments hardly erase cultures that took centuries to develop. A century after Robert E. Lee surrendered to General Ulysses S. Grant at Appomattox Court House, racists were murdering civil rights activists in the Jim Crow South. Thousands of black people had been lynched during those hundred years. Others were subjected to medical experiments. Segregation, bans on interracial marriage, and many other indignities were imposed by white-majority legislatures. 

We can and should applaud the progress that the U.S. has made since its founding while accepting that there is much work to be done. Such work requires an honest look at history that treats the Founding Fathers and America's founding documents as men and historical writings, not prophets and religious texts. 

Although decades have passed since the civil rights movement American institutions continue to reflect America's racist history. Law enforcement and criminal justice are perhaps the most prominent and obvious examples, but we shouldn't ignore the impact racism has had on housing policy, education, and economic regulations. This history of course doesn't imply that everyone who works in law enforcement, housing, and education or advocates for minimum wage increases is a racist, but it should be considered when discussing the ongoing impact of race relations on American society.  

We should also consider modern moral hypocrisies and racial language. Today, many people who claim to support "liberty" protest the removal of statues of Confederate generals who fought to preserve slavery. More than 150 years after the end of the Civil War, a city worker in New Orleans wore body armor and a face covering while removing a statue of Confederate leader Jefferson Davis. 

Rep. Mark Meadows (R-NC), a member of the "Freedom Caucus," won re-election despite saying that President Obama should be sent "back home to Kenya or wherever" (he has since disowned the comments). The whole Obama presidency is full of examples of thinly veiled racial language being used against the president and his family. Rep. Steve King (R-IA) has used racist language and adorned his desk with a Confederate flag, which he displayed without any hint of irony alongside the American flag.

If initiatives like The 1619 Project can help Americans better understand their history and institutions then they should be applauded. I've yet to read the 1619 essay collection in full, and I'm sure that I'll have some disagreements with some of its contributors. The essay on the link between slavery and the "brutality of American capitalism" looks ripe for educated criticism.

It's important for an honest look at American institutions and history because the United States - unlike France and Greece - was founded on a set of principles. French and Greek identities have endured despite Greece and France being governed by a wide range of political regimes (republics, parliaments, monarchies, occupations, etc.). Yet there's a sense in which American identity is tied to the political commitment outlined in the Declaration: a government tasked to securing rights endowed to all people. 

I am bound to that commitment. I took an oath to the Constitution when I became an American citizen ten years ago. I did so gladly, knowing that the document and the men who ratified it were imperfect. But such imperfections didn't dent my budding patriotism. Anyone with a family and friends knows that you can love something that isn't perfect. My relationship with my country is like my relationship with anyone: it improves with increased honesty, reflection, and candor. 

August 12, 2019 10:35AM

Will the ABA Endorse An Affirmative‐​Consent Standard In Sex‐​Assault Prosecutions?

Many colleges have adopted a principle known as "affirmative consent," which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student's sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration. 

And yet the American Bar Association is expected to vote as early as today on a resolution sponsored by its Commission on Domestic and Sexual Violence (emphasis added):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

The italicized phrase might seem ambiguous, but the chair of the responsible commission, in a Thursday email, spelled out what is intended: "consent to sexual activity must be expressed by words or conduct." No expression of consent, no consent for legal purposes. 

So while the language of the ABA resolution doesn't mention burdens of proof or presumptions, it doesn't need to, as KC Johnson and Stuart Taylor, Jr. argue in today's Wall Street Journal

State laws in California, Connecticut and New York require educational institutions to find against students or personnel accused of sexual misconduct unless they can prove the accuser gave “affirmative consent,” meaning a positive manifestation by words or actions of consent to each sex act during an encounter. In practice, as Janet Halley of Harvard Law School has noted, these statutes authorize “proceedings in which the decision maker effectively presumes guilt and requires the accused to disprove it.”

(Prof. Halley, incidentally, is among four Harvard law professors with feminist bona fides who have challenged the lack of due process in current Title IX proceedings -- the others are Jeannie Suk Gersen, Elizabeth Bartholet, and former federal judge Nancy Gertner -- profiled by Wesley Yang in an excellent new piece for the Chronicle of Higher Education). 

Four days ago more than 100 members of the American Law Institute, the leading scholarly clearing house for discussions of the evolution of the law, came out strongly against the changes, noting that ALI's own membership had overwhelmingly rejected a similar proposal in 2016. The letter was signed by many prominent law professors, judges, and practicing lawyers. Perhaps less surprisingly, the National Association of Criminal Defense Lawyers (NACDL) has helped lead the resistance to the new resolution. 

Also four days ago, per Lara Bazelon on Twitter, the ABA's own Criminal Justice Section "unanimously vote[d] to withdraw co-sponsorship of the sexual assault consent resolution and to ask the House of Delegates to table it."

Let's hope this sends an unmistakable message to the full ABA not to proceed with the resolution. [slightly edited for space and redundancy]