Something that deserves far more attention is that the police murders of George Floyd and Tyre Nichols (and many others) took place in front of multiple fellow officers who did nothing to protect the victim. This is like a flight crew doing nothing about a plainly drunk pilot. /1
What it conveys to me, among other things, is a deeply pathological institutional culture in which officers have internalized the notion that they are entitled to act as they see fit in the moment without being second-guessed—and certainly not by anyone who’s not a cop. /2
This is madness. People who are clothed with the extraordinary authority, discretion, and hardware that cops possess must understand that they are agents who must be willing and able to justify every decision they make on the job to the principles who hired and employ them—us. /3
If you can bear it, just listen to the cops milling around after viciously beating Tyre Nichols into a fatal coma. The absolute lack of concern they exhibit that they might have done something wrong or that there might be consequences is both terrifying and haunting. /4
Apologists for the status quo say these are all isolated incidents and that the eerily similar deaths of George Floyd, Tyre Nichols, Tony Timpa, Ronald Greene, and countless others at the hands of utterly insouciant groups of cops is in no way indicative of systemic problems./5
But that false assurance rings ever more hollow with each senseless killing—especially when recordings show that every single person on scene with a badge either participated or stood by while their colleagues killed an unresisting and/or safely secured human being. /6
So where does this mindset of unaccountability come from? Multiple sources no doubt, but one that carries disproportionate weight—due both to the magnitude of its pernicious influence and its sheer gratuitousness—is qualified immunity. /7
QI is a judicially confected defense to civil rights claims that enables rights-violating police and other govt officials to get otherwise meritorious cases against themselves dismissed unless the plaintiff can point to a preexisting case with nearly identical facts—good luck. /8
Among its many, many shortcomings, QI ensures that rights-violating cops receive green lights from judges instead of red lights from juries. Of *course* that breeds a mindset of unaccountability. The time has come to repeal QI—it’s literally a matter of life and death. /end
🧵For most of our history govt could—and often did—disarm people at will, often for overtly nefarious reasons. The Q now is whether govt may dispossess whole categories of people using mere labels—felon, unlawful drug user, non-citizen, etc. Courts appear appropriately skeptical.
I say “appropriately” because generally it is inappropriate to attribute to whole groups of people immutable characteristics that render them unfit to exercise a particular right. Categorical disenfranchisement of “felons” is a shameful and antiquated counter-example.
Categorically disarming people by affixing some label to them—versus making an individualized assessment of unfitness—strikes me *presumptively* problematic as well. This is exposing a remarkable fault line on the left, as exemplified by this amicus brief. supremecourt.gov/DocketPDF/20/2…
Thanks for tagging me into this characteristically thoughtful thread. One of the best things about my job is the opportunity to interact with amazing scholars like you, @RachelBarkow, @CBHessick, @chris_j_walker, and so many others.
If "vicarious liability" is shorthand for rolling back Monell to make it easier to sue police depts and other govt agencies while leaving QI as a defense that individual rights-violators can assert to avoid personal liability then I certainly do oppose that approach—adamantly. /2
The main reason I oppose that approach is that I think it fundamentally misconceives the purpose and role of civil-rights litigation in our system. In my view, civil-rights lawsuits are not fundamentally about money. /3
Horrifying story about an almost-certainly false conviction for murder that, besides ruining a probably-innocent man’s life, left the real killer at large and denied the victim’s family the closure they deserved. /1 eu.usatoday.com/story/news/nat…
Oh, here’s a surprise—the conviction was primarily based on snitch testimony from cellmates to whom the alleged perpetrator just spontaneously confessed, as one does. /2
But hey—why go to the trouble of doing a proper investigation when you’ve already fingered a fall-guy who’ll go down clean and easy once those snitches are properly motivated/bribed. /3
How bad is the rational basis test? Judges can’t even decide whether it is or isn’t a toothless rubber-stamp. (Narrator: It’s both, and a fraudulent charade to boot.) From IJ’s latest—and sadly unsuccessful—cert petition: supremecourt.gov/DocketPDF/22/2…
Oh, and don’t forget that time a DOJ lawyer argued that invisible space aliens could provide a rational basis for a challenged law. I mean, who’s to say he’s wrong? I used to use radioactive space monkeys as my ne plus ultra—til I found out NASA was actually irradiating monkeys.
Rubber stamps, invisible space aliens, and licensing florists to protect people from the physical dangers of unregulated flower arrangements. Congratulations on making a mockery of judicial review, SCOTUS—really nice work. Man, good thing you don’t need a license to be a judge.
Having litigated occupational freedom cases in Louisiana, I can assure you that this “facility need review” requirement is every bit as shady and corrupt as it looks on paper. /1 ca5.uscourts.gov/opinions/pub/2…
You might think “hypothesizing” justifications for the govt’s conduct would cross the line from adjudication to advocacy, and you know what? You’d be right. But the rational basis test isn’t really a test at all—instead it’s an empty charade masquerading as judicial review. /2
SCOTUS says the right to put food on your family’s table through honest labor is non-fundamental and therefore not entitled to any meaningful judicial protection. In reality of course, few rights are more fundamental than the ability to support oneself and one’s family. /3
🧵New study shows the presumption of innocence is largely meaningless in federal criminal proceedings, where pretrial detention is the norm rather than the exception and judges/prosecutors routinely flout applicable legal requirements. /1 usatoday.com/story/news/pol…
This is "technically" known as false imprisonment. Which is *technically,* a crime. Thank goodness for professional courtesy, amirite? /2
Federal prosecutors "regularly" ask for pretrial detention of people not represented by counsel even though that's illegal illegal too. /3