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Clark Neily Profile picture
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17 Aug, 10 tweets, 5 min read
I've seen plenty of no-brainer cert petitions in my day, but this one—from a CA10 decision granting QI to cops who were specifically trained that there's a constitutional right to record police in public that they mustn't interfere with—takes the cake. Why?supremecourt.gov/search.aspx?fi…
1. It involves one of the most important constitutional rights SCOTUS has yet to weigh in on: the ability to record police in public to prevent govt from creating false narratives about things like murdering citizens, like MPD tried to do with George Floyd.businessinsider.com/police-initial…
2. No one seriously thinks modern QI has a shred of legitimacy, and virtually everyone agrees it was invented out of whole cloth in a blatant act of judicial policymaking that's supposed to offend a certain kind of jurist (hint: rhymes w "shmoriginalist").
chicagounbound.uchicago.edu/cgi/viewconten…
3. QI is based on the laughably naive premise that police can and do police themselves. Hens could not be reached for comment because...reasons.
4. Another ludicrous underpinning of QI is that cops spend time pouring over federal appellate opinions and committing them to memory for easy recall during high-stakes encounters in the field. As @JCSchwartzProf demonstrates, this is...not the way. lawreview.uchicago.edu/sites/lawrevie…
5. Faithful application of QI doctrine routinely—ROUTINELY, mind you—produces jaw-droppingly unjust results that thoroughly undermine public confidence in police and respect for the judiciary. Here's a teensy-tiny taste.
6. Ben & Jerry's. Need I say more?
benjerry.com/whats-new/2020…
7. Oh, and here's what it looks like when the mask slips: this is an actual recruiting FB post by the Manchester, NH police department. Remember, SCOTUS, you own this—lock, stock, and smoking Glock.
nhpr.org/nh-news/2021-0…
8 The @CatoInstitute submitted an amicus brief today written by my colleague @jay_schweikert, which I commend to your attention because it's all SO much worse than I can possibly convey in a single thread. supremecourt.gov/DocketPDF/21/2…
9. Last, but not least—please retweet this to the moon and back if you think SCOTUS should finally clean up the QI mess it created.
#AbolishQI
#EndQualifiedImmunity
@AbolishQI

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Clark Neily Profile picture
3 Sep
CA10: To be clear—you were specifically trained that people have a right to record you in public but you still abused this guy for recording you, and now you think you should get qualified immunity?
Cops: Uh...
CA10: Just messing with you—of COURSE you get QI. And next time too!
Sauce: scholar.google.com/scholar_case?c…
More sauce: supremecourt.gov/search.aspx?fi…
Read 4 tweets
Clark Neily Profile picture
14 Aug
I know it’s trendy to dunk on the Founders these days, but their foresight was really quite remarkable. That said, something they did not and could not foresee was the rise of a massive professional law-enforcement faction with an almost pathological aversion to accountability.
If you look back to the Founding era, you’ll see that government officials could and did get sued at the drop of a hat. This was absolutely routine, and absolutely the right way to organize things. We do the opposite, and I don’t have to tell you what a disaster it has been.
That we live in an era when self-styled “originalists” judicially amend democratically enacted laws in order to make it maximally difficult for citizens to hold power-abusing government officials accountable is, to put it politely, remarkable. See, e.g., cato.org/policy-analysi…
Read 5 tweets
Clark Neily Profile picture
12 Aug
It's vitally important to have a well-functioning criminal justice system. But ours is not well-functioning, and it merits neither your confidence nor your support. Here's why:
1. Overcriminalization. As discussed in prior posts, our govt has utterly trivialized the concept of crime. Virtually all of us have committed criminal offenses, most of which do zero harm to society, should never have been enacted, and are enforced selectively and unjustly.
2. Mass adjudication. Among the most important rights in the Constitution, the criminal jury trial has been almost completely displaced by plea bargaining, which has become so coercive that it amounts to a point-and-convict form of "adjudication."
cato.org/commentary/pri…
Read 7 tweets
Clark Neily Profile picture
10 Aug
Thread: Lately, a number of normally thoughtful people on this site have been committing a version of the “if we had some ham we could have ham-and-eggs if we had some eggs” fallacy in response to concerns about increases in (some) violent crime rates.
They call enlarging they footprint of the criminal justice system—including particularly police—on the premise that this will help reduce crime, especially homicides and gun assaults. And it probably would. But at what cost? That’s a question most of these folks studiously avoid.
I don’t believe I’ve seen a single one of the “Moar police!” folks try to grapple in any serious way with just how deeply pathological, immoral, and counterproductive so much of our criminal legal system has become.
Read 8 tweets
Clark Neily Profile picture
30 Jun
In case you didn't see my earlier thread (or even if you did), it's crucial that you understand how incomprehensibly cruel govt can be, especially when judges—who have a duty to protect fundamental rights—are asleep at the bench.
al.com/crime/2021/06/…
Alabama LEOs arrested this couple for possession of marijuana as they were passing through on their way back to Michigan, where it's legal. Alamaba LEOs also took away the couple's 18-month-old son and left him with strangers. As a parent, I can't even imagine the torment.
Properly understood, the Constitution limits the govt's power to put you in a cage or kidnap your children. Unfortunately, SCOTUS has embraced the tragically flawed idea that govt may do those things on a whim—or, in judge-speak, a "rational basis." amazon.com/Terms-Engageme….
Read 5 tweets
Clark Neily Profile picture
30 Jun
You might think the govt needs a good reason to put you in a cage and/or kidnap your children. But you’d me mistaken, at least according to our woefully misguided judiciary, which only requires a “rational basis.” Shameful. al.com/crime/2021/06/…
This is yet another illustration of how tyrannical reflexive judicial deference is and why the "take it up with the legislature" rejoinder is so hopelessly inadequate. Since she's a non-resident, it would literally be a crime for her to vote in the state that kidnapped her child.
Similarly, most of the plaintiffs in this occupational licensing case out of Texas were green-card holders—so again, it would be illegal for them to "take it up with the legislature." Fortunately, SCOTX was having none of it. casetext.com/analysis/patel…
Read 5 tweets

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