UnlawfulShield.com @AbolishQI
The @CatoInstitute team dedicated to abolishing the qualified immunity doctrine #AbolishQI unlawfulshield.com Washington, DC Joined May 2009-
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Radical proposal: *Any* immunity for law-breaking/rights-violating executive branch officials should be explicitly stated in constitutional or statutory text and not judicially conjured out of thin air. No matter how strong a judge thinks the policy concerns may be.
I really wish more people who work within the system—especially ones who wear robes—would sit with that for a minute. Maybe, just maybe, the Founders were on to something eternal and wise when they devoted more than half the Bill of Rights to criminal jury trials. /end
This is one of many reasons why the whole “but the system will grind to a halt without plea bargaining“ mantra is such crap. The system won’t grind to a halt—we’ll still prosecute murderers, rapists, and Bernie Madoffs. But we’ll get a whole lot more selective, that’s for sure.
Putting a human being in a cage is a really big deal. Doing so should entail a nontrivial amount of hardship for ordinary citizens—as a kind of societal gut-check. If you’re not willing to take a few days/weeks off of work to put somebody in prison, maybe they don’t belong there.
The 9th Circuit today granted qualified immunity to an officer who shot a man six times. The decision nicely illustrates why the justifications for qualified immunity doctrine bear scant relationship to reality, and why it is brutally unjust. 🧵 1/10
While the justices had tough questions for both sides today, one moment stood out. Justice Kagan asked counsel for the city officials whether a court could consider as evidence a hypothetical videotape in which the officials admitted that they planned the arrest as retaliation.
Today, the Supreme Court heard oral arguments to consider what evidence a court may look at when determining whether an arrest was an impermissible retaliation against protected speech.
Listening to a SCOTUS-centric podcast this morning, and I’m struck by just how much doctrine is designed to enable govt to enforce plausibly unlawful policies while escaping judicial review *and* accountability. The scope and cynicism of that jurisprudence is simply breathtaking.
It takes a special kind of brazen to insist on civil immunity against plausible claims that you violated somebody’s constitutional rights. But hey—if you don’t ask, you don’t get.
There is literally no room to put a cherry on top of this qualified-immunity train-wreck sundae.
There is literally no room to put a cherry on top of this qualified-immunity train-wreck sundae.
Tl; dr: It’s very easy for police to sue citizens and very difficult for citizens to sue police—and that’s not good.
Tl; dr: It’s very easy for police to sue citizens and very difficult for citizens to sue police—and that’s not good.
Thrilled to join the happy chorus #newlawrevarticles and announce that my latest article “The Plaintiff Police” will be forthcoming in @YaleLJournal - will post to SSRN soon but here is the abstract in the meantime! 👇
In fairness, it’s no accident and no surprise. cato.org/study/are-disp…
Mozart’s ability to improvise astonishingly beautiful and complex music on the fly is without parallel. If I had to pick one thing that comes close, I’d say it’s judges’ ability (and propensity) to confect fantastical immunities on behalf of rights-violating govt officials.
Clark’s right 😉
Among the worst things govt does is advance manifestly pretextual justifications for grossly unconstitutional actions. And the judiciary excels at manufacturing rationalizations for embracing those nakedly pretextual justifications. Exhibit A. *Unanimous.* scholar.google.com/scholar_case?c…
I find virtuosity in nearly all its expressions so moving—Japanese calligraphy, classical music, craft cocktails, elite women’s volleyball. But there’s one form of virtuosity that leaves me utterly flat, which is govt officials’ peerless ability to weasel out of responsibility.
When so-called “jury nullification” (I consider the term “conscientious acquittal” more accurate and less pejorative) is a valid power that criminal juries have always—and still do today—possess. I think it’s absolutely bonkers that the govt gets to purge people who know that.
The nutshell argument is that a 6Am-compliant jury must have certain attributes not specifically spelled out in text—numerosity, unanimity, deliberation (arguably). I don’t see how a jury from which potential “nullifiers” have been excluded could possibly be “impartial”…
I ran a poll asking whether a jury that was prevented from deliberating would be compliant with the 6Am. Nearly everybody responded—correctly, in my view—that it would not. How about a jury that hasn’t been informed of its full powers, including to acquit against the evidence?
I ran a poll asking whether a jury that was prevented from deliberating would be compliant with the 6Am. Nearly everybody responded—correctly, in my view—that it would not. How about a jury that hasn’t been informed of its full powers, including to acquit against the evidence?
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I really wish more people who work within the system—especially ones who wear robes—would sit with that for a minute. Maybe, just maybe, the Founders were on to something eternal and wise when they devoted more than half the Bill of Rights to criminal jury trials. /end
This is one of many reasons why the whole “but the system will grind to a halt without plea bargaining“ mantra is such crap. The system won’t grind to a halt—we’ll still prosecute murderers, rapists, and Bernie Madoffs. But we’ll get a whole lot more selective, that’s for sure.
Putting a human being in a cage is a really big deal. Doing so should entail a nontrivial amount of hardship for ordinary citizens—as a kind of societal gut-check. If you’re not willing to take a few days/weeks off of work to put somebody in prison, maybe they don’t belong there.
@ConLawWarrior @AbolishQI #CatoInstitute warns “Qualified Immunity: A Legal, Practical, and Moral Failure” #QualifiedImmunity cato.org/policy-analysi…
The 9th Circuit today granted qualified immunity to an officer who shot a man six times. The decision nicely illustrates why the justifications for qualified immunity doctrine bear scant relationship to reality, and why it is brutally unjust. 🧵 1/10
Qualified immunity also fails to shield the officer's bank accounts - under California law, officers are entitled to indemnification. With or without qualified immunity, the involved officer wouldn't pay a dime. nyulawreview.org/issues/volume-… 9/10
Artificially limiting the evidence courts may consider in retaliation cases will only allow government officials to get away with more retaliatory arrests, and such arrests are a threat to the free speech of anyone who speaks out in a way the government does not like.
This admission will hopefully lead the justices to realize that wherever they draw the line for admissible evidence of retaliatory intent, the Fifth Circuit’s approach was far too narrow.
Eventually, counsel for the officials reluctantly admitted that their position is no, even such blatant smoking-gun evidence of retaliatory intent could not be considered by a court unless accompanied by specific examples of others who were not arrested for the same conduct.
While the justices had tough questions for both sides today, one moment stood out. Justice Kagan asked counsel for the city officials whether a court could consider as evidence a hypothetical videotape in which the officials admitted that they planned the arrest as retaliation.
And second, should courts be permitted to look at evidence beyond narrow comparisons to others who engaged in the same conduct but were not arrested, at least when it is infeasible to obtain the data necessary to make such comparisons?
In today’s argument, the Supreme Court grappled with two key questions. First, should courts look to a wider range of evidence in cases where arrests came after significant deliberation rather than as split-second decisions?
Yet the Fifth Circuit held that under a 2019 Supreme Court precedent, Gonzalez could not win because she could not point to specific examples of others who had done the same thing she had done but were not arrested.
For this, Gonzalez was eventually charged with the crime of concealing an official document, and she was arrested and spent a night in jail. The charge was later dropped, and Gonzalez then sued the mayor and other city officials for retaliatory arrest.
Sylvia Gonzalez was a city council member in a small Texas town who spoke out against the town’s leadership. When she organized a petition to remove a member of town leadership from office, she allegedly temporarily misplaced the petition in her personal folder for a brief time.
The statute books are littered with crimes that everyday citizens commit every day but typically are not charged with, like jaywalking. The government thus unfortunately has many tools to selectively punish citizens with arrest as retaliation for exercising freedom of speech.
Today, the Supreme Court heard oral arguments to consider what evidence a court may look at when determining whether an arrest was an impermissible retaliation against protected speech.
Details on today's SCOTUS oral argument about the woman who was put in jail by her local government over her attempt to petition that government.
Today, the Supreme Court heard oral arguments to consider what evidence a court may look at when determining whether an arrest was an impermissible retaliation against protected speech.
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