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Jay Schweikert and Clark Neily join us for a conversation on law enforcement and accountability.

Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies

Clark Neily is a senior attorney and the Director of the Center for Judicial Engagement at the Institute for Justice. Neily litigates economic liberty, property rights, school choice, First Amendment, and other constitutional cases in both federal and state courts.

Jay Schweikert and Clark Neily join us for a conversation on law enforcement and accountability. We also discuss qualified immunity and how technology is helping to combat police misconduct.

The Problem of Police Misconduct — Free Thoughts Podcast

Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy

Clark Neily

Jay Schweikert


Aaron Powell: Welcome to Free Thoughts. I’m Aaron Powell.

Trevor Burrus: And I’m Trevor Burrus.

Aaron Powell: Today we’re joined by Clark Neily, Vice President for Criminal Justice at the Cato Institute. And Jay Schweikert, policy analyst in Cato’s project on criminal justice.
Welcome to Free Thoughts.

Clark Neily: Thanks very much.

Jay Schweikert: Thank you.

Aaron Powell: Today we’re going to talk about immunity, especially of police officers and prosecutors. But let’s begin a bit broader than that. What’s wrong with our criminal justice [00:00:30] system?

Clark Neily: A lot. But if we want to look at the things that are most fundamentally wrong with our criminal justice system, it’s the fact that we actually have two criminal justice systems. The first is the one that is described in the text of the Constitution, and mythologized to school children. The other one is the one that we actually operate in order to maintain the highest incarceration rate in the world, and to process millions of people through the system as quickly and efficiently as possible. And essentially to create a pipeline whereby defendants are [00:01:00] rapidly turned into convicts with minimum amount of expense and effort.
That is the essence, in many ways, of our current criminal justice system and it is totally unethical to the one that the founders envisioned.

Trevor Burrus: How did that happen? I know there are many, many steps, but in general, how did that happen?

Jay Schweikert: It is a complicated story, and I think we ourselves, have been trying to figure out exactly what each step along the way was. I think that part of this process here [00:01:30] is taking something complicated and involving many steps, like moving someone through the criminal justice system and all of its procedural hurdles, and applying a certain American notion of mass production and deficiency to it, and I think that if you look at each individual piece of the criminal justice system, you see people, probably, who are working within the incentives that they have. That are probably [00:02:00] trying to do the best they can, and thinking that they’re contributing to a more just world, and yet the incentive structures that they’re in are creating the system, where, as Clark mentioned, it’s less about giving each individual defendant the individualized, adversarial adjudication of evidence that liberal justice demands, and more how quickly and efficiently can you turn someone from a suspect into a convict. And how many people can you do that with.

Clark Neily: I would add sort of two concrete [00:02:30] data points, or inflection points. One is when the Supreme Court decided to stop providing any meaningful judicial review of most laws. The fact that the Supreme Court applies this thing called the Rational Basis Test, which is a fraud and a charade, to … that’s the default setting in evaluating the Constitutionality of laws, including laws with criminal penalties.
The result is that because the government doesn’t have to offer an honest, let alone a good explanation for restricting [00:03:00] peoples’ liberty, when the Rational Basis Test is applied, is that the government can criminalize pretty much whatever it wants, as long as it’s not a book or a church. And there are very powerful public choice dynamics that cause the government to use that power to criminalize all kinds of conduct that is not inherently wrongful. And when you get no meaningful judicial review, as we do not, those laws will accumulate, and you’ll get to a point, as we have, where the government criminalizes a tremendous amount of non‐​wrongful conduct that ordinary, decent, otherwise law abiding people with to [00:03:30] engage in, and will continue to engage in, despite the fact that it’s technically criminal. So, in a sense, we’ve kind of stocked the criminal justice pond with lots of so called criminals who aren’t actually bad people, so that’s point one.
The other point is that we have basically allowed prosecutors to subvert the cornerstone of American criminal justice system, which is the citizen jury. Basically, we have eliminated the criminal jury [00:04:00] trial in America. About 95, 96% of all criminal convictions are now obtained through plea bargain, and for reasons we can get into, the plea bargaining process itself is often extraordinarily coercive, for a variety of reasons, including particularly mandatory minimums, which enable the prosecutor to apply tremendous leverage, and the inadequacy of many public defender systems where you just don’t have a truly zealous advocate, and the prosecutor essentially holds all of the cards.
So you’ve got two problems. You’ve got a situation where there are lots of activity [00:04:30] that is non‐​wrongful that has been criminalized, so you have lots of people committing so called crimes. And you’ve got a system in which the government has essentially purged the single most important safeguard, and the single biggest block to efficiently prosecuting, or I should say processing people from defendants into convicts, and that, of course, is the jury trial, which has been virtually eliminated from the system. There’s more to it than that, but those are two of the biggest issues, I think.

Aaron Powell: This puts me in mind of an issue that has been on the front of my mind for quite a long time, which is, [00:05:00] so you talked about … Jay, you talked about how we have this almost shift from like a criminal justice system that was about principles of justice, to one that was about efficiency. Like our job as members within this system is to just get the widgets through the assembly line.
Clark, you said we have this problem of just proliferating laws, that we can criminalize anything, and so do the men and women who are in the justice system, and maybe chiefly the prosecutors and this, are they concerned with that? And then, [00:05:30] at the broader picture, how much responsibility do they bear for the enforcement of … these are people who are basically locking human beings in cages, and often for stuff that is really petty. My view is that if you lock a human being in a cage unjustly, you are as morally culpable as some random person on the street who kidnaps someone and locks them in a cage, and that, in fact, if there are real criminal offenses here, it’s the prosecutors prosecuting [00:06:00] people for unjust laws.
But do people within this system see this as a problem, or have they just kind of compartmentalized everything away and it’s all about the efficiency?

Jay Schweikert: Of course, it’s difficult to speak on behalf of all prosecutors as a class, and so I don’t want to generalize. I think that there certainly are quite a … many prosecutors who, especially when they’ve left that profession, have discussed in detail the exact sort of concerns that we’re talking about. About how [00:06:30] much leverage they had, how much discretion they had, that really they and not judges, and not even juries, were driving outcomes in these cases.
I think probably most prosecutors subjectively believe that they are putting people in jail for good reasons. I think some of that may well be cognitive dissonance, the fact that if this is sort of your job, and you are doing it day by day, or you’re more likely being given instructions to do it by your higher ups, because of course most prosecutorial functions both at the state and federal level [00:07:00] are hierarchical, so you have a boss, who’s essentially setting the agenda. You’re going to find a way to become comfortable with it. I think most prosecutors are not motivated by bad faith, or some irrational antipathy toward defendants in the system, but I think that they are a product of a system that measures success by how many prosecutions you can get through the pipeline. If you talk to prosecutors about how they sort of keep score, they’re keeping track of how many convictions they get.
And [00:07:30] it’s understandable why that’s the framework that they’d look at it. So it’s not a question of do they have the sort of malicious attitude toward defendants, but it’s a question of what are the incentives they’re operating under.
Now, it also is certainly the case that there are prosecutors who commit willful Constitutional violations. We know that violations of the constitutional rule in Brady, this is the obligation of prosecutors to turn over evidence to the defendants [00:08:00] that is relevant to culpability, or mitigation. Basically, if something is favorable to the defendant and the prosecutor has that evidence, they have to turn if over to you. And if they don’t, they’re violating the Fifth Amendment.
It’s enormously easy for prosecutors to get away with withholding Brady evidence, because of course if they never turn it over, the defendant often isn’t going to know that it’s there. I think that there is reason to think that there are a lot of constitutional violations occurring by prosecutors, many of which I think are intentional. [00:08:30] But on the whole, it’s not a matter of focusing on bad actors in the system, it’s a matter of focusing on, at a structural level, how much power prosecutors have to drive everything else, given the threats they can hold over defendants and plea bargains.

Clark Neily: In some ways through no fault of current prosecutors, they have been deprived of an extraordinarily important stream of information, and that is feedback from citizen jurors. They don’t get much of that, because they’ve essentially eliminated the citizen jury from the process. [00:09:00] That’s not the fault of current prosecutors, that happened generations ago, or at least the things were set in motion generations ago.
Another problem, as Jay alluded to, really is the problem of incentives and institutionally, I think it’s fair to say that prosecutors at large as an institution, don’t care sufficiently about this, and there’s just two points I would make there.
One is that unlike any other profession that I’m aware of … I defended doctors, I did medical malpractice work when I was young lawyer. When there’s a significant act of malpractice, or significant bad outcome in a hospital, [00:09:30] they drop everything. And they get everyone together who was involved, and they study it from top to bottom, and they say, “How did this happen? And what must we do to prevent it from happening again?” Prosecutors, to my knowledge, never do that. DA’s offices don’t do that. The Department of Justice doesn’t have a process for that, they just don’t do it. I think that’s a tell.
And then second, there really is no profession that I’m aware of that is less accountable than prosecutors. They have virtually no internal accountability, although they would tell you otherwise, but the facts just don’t bear that out. They’re the only lawyers who [00:10:00] appear in court who cannot be sued for their professional misconduct, and that’s extraordinarily significant, as we’ll get into later.
So you’ve got really serious institutional problems from start to finish, and I think the net net is that … what the signal that the prosecutors are sending is institutionally, and again, Jay’s point is well taken, not individually, but institutionally, they definitely are insufficiently concerned about these problems.

Trevor Burrus: So yeah, let’s get into the accountability problems, because you guys in the project on criminal justice, you look at the criminal justice system, which is from cops [00:10:30] to prison, and a lot of things going on there, but focusing on a few things that you guys have chosen, the sort of inflection points that are particularly problematic. And one of those is, as you mentioned, the accountability, the immunity that is enjoyed particularly by prosecutors and police.
So, the first question is, it’s a word that people probably hear in the news, what is qualified immunity?

Jay Schweikert: So qualified immunity is a doctrine that limits the legal liability of [00:11:00] essentially all public officials. Certain public officials, like prosecutors, get absolute immunity, which as the name suggests, is absolute, cannot be overcome. But the default for all public officials is qualified immunity. This statute … or, excuse me, this doctrine is nominally an interpretation of our main federal civil rights statute. This is the statute that’s currently codified at 42 USC Section 1983, so this is often called Section 1983. And this statute lets [00:11:30] you sue state officials who violate your constitutional rights.
If you’ll indulge me for a second, I’m going to read the entirety of the operative language of this statute. This is what it says.
“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, or other person within the jurisdiction thereof, to the depravation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured [00:12:00] in an action at law, sued in equity, or other proper proceeding form of address.”
What that essentially says is any state actor who violates your constitutional or other federal rights shall be liable. That’s it. That’s all it says. It’s a very simple statute, as statutes go. It is imaged, and this is passed in reconstruction, part of the statute that is intended to give force to the 14th Amendment, to ensure that all citizens, but especially freed blacks, would have the power to vindicate their constitutional rights in federal court [00:12:30] if states tried to deny them.
And so if you were really naïve, you might look at that statute that says, “If someone violates my constitutional rights, I can sue them,” and think, “Oh, well that means if someone violates my constitutional rights, I can sue them.” But, the Supreme Court has said otherwise. The Supreme Court has developed this doctrine called qualified immunity, that in my view they have essentially grafted on to this statute, which says, “Not so fast. Even if the state actor acted unlawfully, even if they [00:13:00] violated the Constitution, we’re not going to hold them liable unless they violated, quote, ‘clearly established law’ unquote.”
The idea behind this is that the court essentially made a policy judgment. They didn’t want to hold state actors liable where the law was sort of unclear, and they couldn’t have known ahead of time that what they did was going to be held unlawful. Stated at that level, you can understand how it sounds kind of reasonable. Again, that’s a policy [00:13:30] judgment that’s not in the statute, so I don’t think even that judgment was the court’s to make. But it gets worse, because the way the court has applied this standard, clearly established law, doesn’t just require a clear legal rule. It requires, essentially, clear facts. A precedent, and existing case already on the books, with a factual scenario that’s functionally the same as whatever case you’re bringing in. So it’s not enough to say, “Well, obviously it’s clearly established [00:14:00] that you can’t use excessive force in making an arrest, or that you can’t punish detainees before trial when they’re being held in prison, and this was an obvious violation of that, so I get a remedy.” Right? If there doesn’t happen to be a case already on the books that is almost the same as yours, you’re not going to be able to get relief.
So, the effect is that this becomes an enormously difficult hurdle for civil rights plaintiffs to overcome. Because to some extent, it turns on the happenstance of what cases have already been decided. And it turns [00:14:30] on what level of generality courts are going to enforce to clearly establish law standard. It’s inherently a bit amorphous, because as any lawyer will tell you, there’s always a way to distinguish cases. There’s always a way to say, “Well, there was this fact in that case, but this case has this different fact, and that matters for this reason.” That’s a big part of lawyering is, is trying to sort of come up with those relevant distinctions.
So those arguments are always going to be there. And if the courts have said, as the Supreme Court has, that if there’s any question about [00:15:00] that, then even if we decide, even if we agree, yes, this was unconstitutional, there’s not going to be a remedy for that person whose rights were violated.

Aaron Powell: This obviously seems … I think you’re right that reading the statute, as written, it’s not clear how we get from that to what you just described. But, it also seems like there’s something weird going on with the incentives and underlying assumptions at work here. Because … so the courts, as you said, there’s a policy decision that they made, being able to prosecute people for violating the law would [00:15:30] create certain incentives. And so the one that would be a big worry is the prosecutors become so risk averse, that they simply wouldn’t prosecute anyone. Like they’d be so scared of possibly getting sued that only in extraordinarily obvious cases would they go ahead.

Trevor Burrus: Prosecutors get absolute immunity, except for out of the scope of their jobs.

Aaron Powell: Okay.

Trevor Burrus: It’s cops mostly.

Aaron Powell: But the idea behind this immunity, is we don’t want them to so risk averse that our system breaks down. [00:16:00] But, we kind of do. Our whole founding ideology is that government is limited, it has a very explicit set of powers, and if it’s going to move outside of those powers, it better have a damn good reason. And so don’t we, in fact, want cops and prosecutors to just be constantly worried that they’re going to be violating someone’s rights, and that there’s going to be consequences for that? And that we always want them to err on the side of not arresting, and not prosecuting, [00:16:30] instead of err on the side of prosecuting and arresting?

Clark Neily: I certainly think we want them to be mindful of it. And I think it’s a policy judgment, as Jay said a moment ago, to try to figure out exactly where to set that … how to dial that in. And that’s one of the biggest problems with qualified immunity. And frankly, also with absolute prosecutorial immunity, is that instead of leaving that policy judgment to the legislative branch, where it belongs, the Supreme Court stepped in and said, “Well, even though you didn’t actually provide for any form of immunity in Section 1983, [00:17:00] we’re just going to kind of read into it both qualified immunity, and absolute prosecutorial immunity”, essentially for the reasons, Aaron, that you mentioned.
A, those are policy judgments. B, as our friend Will Baude, who’s a law professor at the University of Chicago, has articulated in this incredibly important and influential article that’s coming out any day now called Is Qualified Immunity Unlawful, the rationales that the Supreme Court relied on in inventing [00:17:30] qualified immunity out of whole cloth, which is what it did, are highly contestable, and in some cases, flatly unfounded. To state just one example, the Supreme Court said, “Well, there’s, of course, other forms of accountability. There are other mechanisms for ensuring that police and prosecutors don’t violate our rights. And so it’s not as if we’re completely sort of taking away peoples’ remedies, and it’s not as if this will leave police and prosecutors with nothing but perverse incentives.” They could not have been more wrong about that, [00:18:00] that is a policy judgment, it’s an empirical statement about the world, and it is flatly false.

Jay Schweikert: To add to the question about sort of what do we want police to be mindful of, I think it’s important to remember that there’s a lot of room already for decision making under uncertainty. That is already built into what it means for actions to be unconstitutional or not. So, to take an example, the general standard that does a lot of work in criminal law is probable cause. This is what lets police make an arrest, [00:18:30] it’s what lets them get a warrant to search a home. It doesn’t mean certainty, right? It means that they have a good faith reason to think it’s likely that a crime has been committed. Sometimes they’ll be wrong. And that’s not unlawful. If the police have probable cause to search my home, they have credible evidence, and it turns out to be mistaken, that sucks for me, that’s an inconvenience, but nothing unlawful, unconstitutional happened.

Clark Neily: And therefore, you don’t get to sue them for it.

Jay Schweikert: Exactly. And therefore, I don’t get to sue … qualified immunity or not, I wouldn’t get to sue them for it. So, of course police and [00:19:00] other state officials have to make quick decisions under conditions of uncertainty. That’s already accounted for when we decide what is unconstitutional and what’s not. Where qualified immunity kicks is, is when you say, “Even taking that into account, even looking at it from the perspective of a police officer, in that moment, making a snap decision, this was objectively unreasonable.” That’s the standard, for deciding whether it was unconstitutional or not. Even if that was the case, we’re still [00:19:30] not going to hold them liable.

Clark Neily: Unless you can find a case that is directly on point, where a police officer named Bob beat a guy who was in restraints named John, on a Tuesday at 4:00 p.m. It’s not quite that bad, but that’s barely an exaggeration.

Jay Schweikert: And so I think that the … just to kind of come full circle here, if you were to pull away qualified immunity, it would hardly be the case that every single decision now can be second guessed and subject officers to liability. It would only be in those cases where they exceed the [00:20:00] constitutional bounds, which as I said, sort of already account for reasonable decision making, and some guesswork, and quick judgments.

Trevor Burrus: Do other constitutional bounds actually account for that reasonable standard? Because I think that the best color you could put on the qualified immunity interpretation is that it’s like a reasonable person standard, in torts. We expect people to behave reasonably under the circumstances, to know that it would be wrong to do this to someone, [00:20:30] but something that’s more on the line. And so, yeah, you have probable cause in the Constitution, words in the Constitution, that like actually say, “Certainty is not required.” But what about, say, raiding someone’s house with a SWAT team, where you could be subjected to liability if you don’t know exactly the constitutional rules that are in play there. So that’s what we would be asking them to do, they should know what rules are in play, what clearly established rights, that’s all we could really expect them to know. And [00:21:00] so whether or not raiding someone’s house with a SWAT team, throwing a flash bang grenade into a house, and blinding someone with it violates their rights. We couldn’t expect them to know more than clearly established rights, it seems to me.

Clark Neily: That’s a great point, Trevor, and I think it’s true that there will be some settings where there’s not this sort of … almost like a gasket, or a piece of cartilage that provides some cushioning, so to speak, the way probable cause doctrine does. But it points to a really important consideration, [00:21:30] it’s a fundamentally economic consideration in a sense. Let’s take a really interesting issue that is important, and that the Supreme Court has not yet weighed in on, and that’s whether there’s a constitutional right to record police officers in public.
And it could certainly be the case that a police officer who tells you to put your phone down and stop recording is not really on notice that that would be a violation in the particular jurisdiction where they are. The Supreme Court hasn’t weighed in on it, but every Court of Appeals that has looked at is has said that that’s impermissible. And so, in a [00:22:00] sense, I think in that setting, there is closer to a standard of strict liability. Maybe there’s no reason why that cop would’ve known that, he tells you to put the phone down, that turns out to be unconstitutional and suddenly he’s liable.
One way of looking at that is to say the following. When the constitutional violation occurred, a harm also occurred. And that harm imposed costs on the person who wanted to record that police officer. And the only question, or one could say the only real question then is, who has to bear that cost? I’ve been injured, I’ve been harmed [00:22:30] because I couldn’t record the police officer, he was the one who decided that he would essentially use his power to force me to stop doing something that wasn’t hurting anybody. And it seems to me that it’s not unreasonable to have a policy that says that if you’ve created a harm, if you’ve caused a harm, and you’ve imposed a cost, then generally speaking, you should be the one that has to make the other person, whom you have harmed, whole. And you’re not necessarily entitled to some leeway, you’re not necessarily entitled to some constitutional cushion. And more importantly, Congress did not build [00:23:00] one into the statute.
And at the time, almost 100 years later, when Section 1983 was added to federal law, the standard was one of strict liability. If you violate somebody’s rights, you’ve caused a harm, and you have to compensate them for it. We may want to argue about whether there’s some other policy that would be better, and whether it’d be more fair to police, to give them a little bit more of a cushion that exists in all cases, but the important point is Congress didn’t do that. And it’s not for the Supreme Court to make policy, [00:23:30] which it plainly did when it adopted qualified immunity doctrine to prove that cushion in cases.

Jay Schweikert: Just to get it … there’s actually a really interesting case from 1804 called Little v. Barreme, it involved a naval captain who seized … he intentionally seized a boat that federal law had authorized seizing boats that were going to a French port, which this boat was not, but President Adams had issued broader instructions to seize boats coming from French ports as well. And so he was relying on that instruction directly from the president. And the opinion … [00:24:00] and this was a trespass action against him for the seizure of the boat. The opinion, by Chief Justice Marshall, said that the naval captain had acted in good reliance on the president’s order, and the ship have been quote, “seized with pure intention”, unquote.
Nevertheless, the court held that quote, “the instructions cannot change the nature of the transaction, or legalize an act, which without those instructions would have been a plain trespass”, end quote.
So, here you have Chief Justice Marshall, in a lot of ways of the most influential figures in our constitutional history, [00:24:30] coming out in the founding era, in a major case, saying, “The background rule is … the only defense is legality.” In other words, you can’t rely on good faith, you have to rely on the fact that what you did was legal, and that’s simply, when you assume public office, and you take on the powers of the state, and bring those to bear on citizens, that’s a risk you take.
Again, it may well be that there’s an interesting policy discussion to be had about exactly how to draw that line. Maybe that exact line is not where we want to be in every case, [00:25:00] but that was the background understanding. That was the historical assumption that the framing era had, and the legal background against which Section 1983 was adopted. So if you’re going to read history into the statute, I think you have to read that history into the statute, and assume that, in general, the only defense is legality.

Trevor Burrus: Isn’t it a lot of the time, when we’re talking about the costs, as you mentioned, that who bore the cost of telling them to put their phone down, when cops are thinking about … not like [00:25:30] policy, but cops on the scene are thinking about not so much the cost to you, but what if everyone did this, I’ve got to keep this area clean, it’s more thinking about trying to keep everyone‐

Aaron Powell: Categorical‐

Trevor Burrus: Yeah. Well I’m trying to keep everyone out this area, get out of this area, stop filming over there, get over there. And so it’s a cost to you, but he’s trying to clear the area and keep everyone safe, and not keeping everyone going and getting up in their business. So it may be just, it’s not just the cost to that person, it’d be the cost to the police if everyone [00:26:00] did what that person is doing, and that seems to make the question a little bit more difficult.

Jay Schweikert: Yeah, I don’t think that’s wrong. I would add some color, and some texture to what you said, by adding the following. That’s sort of an idealized vision of what cops do in the field, and sometimes it happens that way. Other times, that cop just doesn’t want you witnessing and recording what they’re doing, or he’s just annoyed that you’re distracting them, or maybe they feel a little bit less safe because you’ve got on object in your hands, and they need to be dealing with the person they’re arresting and whatever, and doesn’t want to constantly be watching his back, [00:26:30] which is … I get it.
What happens very often in these settings, is there’s not that much thought that went into the initial instruction. “Put the phone down, back away,” whatever. It’s when you say, “No. No, I have a right to be here, I have a right to do this,” that you’ve challenged the police officer’s authority. And this, by the way, is the most often enforced unwritten law in all of criminal law, and that is disobedience of cop, and everybody knows it. Everybody who’s a law enforcement officer knows it, and everybody who’s associated with the criminal justice system knows it. [00:27:00] And for many police officers, it’s really … it’s not what you were doing initially, it’s the fact that you refused a direct order from the cop, that’s what they’re now really vexed about. And so the idea that inevitably, they’re really just trying to act in everybody’s best interest and secure the scene, etc. etc. I know that happens sometimes, but it also happens, very often, that what they’re really doing is they’re essentially penalizing you in the field for disobeying them.
That points back to the theme that has emerged from this discussion already, which is getting [00:27:30] the policy right, getting it dialed in where it ought to be, is a consummately legislative activity, and one that courts really are ill suited to perform, and yet nevertheless, the Supreme Court arrogated to itself on the basis of terrible history, and even worse analysis, the power to essentially rewrite Section 1983 to change the standard of liability in way that is not at all clear that the legislature would have done if it had considered the issue explicitly.

Aaron Powell: Do we have any sense of how much qualified immunity changed [00:28:00] the culture of policing? Because that’s sort of … I would first just say that it seems like your job as a citizen is to challenge the authority of every state agent who comes near you.

Trevor Burrus: his daughter.

Aaron Powell: Yes, my daughter knows.

Trevor Burrus: Which is true, I know.

Aaron Powell: We used to live next to a cop, and my proudest moment was when he came up and chatted with her, and she asked if she was being detained.
But that’s like one of our founding principles, is the challenge of authority. But, it seems like [00:28:30] the behavior that you’re describing, of just the cops saying … like he’s just annoyed with, you’ve bugged in, you’re getting in his way, or he just doesn’t like that you’re standing up to him, that sort of thing feels like it would be a product of the immunity. Like that behavior can only exist when cops know that there isn’t going to be a problem, that they don’t have to try to stick to a line. So do we have a sense, like … over shouting the mark, have we made policing even worse, regardless of the immunity thing, [00:29:00] simply because cops are more belligerent than they might otherwise be?

Clark Neily: The short answer is nobody knows for sure, for a number of reasons. Some aspects of policing have gotten a lot better in the relevant time period. Just to take a couple of examples, basically the use of violence against suspects in custody used to be apparently quite widespread. Unfortunately, we still see it from time to time, there was a horrible situation in Chicago where they had a senior, I think he was a captain who routinely tortured suspects in what amounted [00:29:30] to a black site in Chicago. So it’s not that it has stopped, but it’s not as routine as it used to be.
So some aspects of policing have gotten better. There’s some indication that some aspects of policing have gotten worse, or at least they become institutionalized in a way that’s very troubling. To take an example, the stop and frisk policy that they had in New York City, blatantly unconstitutional, but they were just randomly … well, it wasn’t random, they were very demographically sort of focused policy, but without any probable cause [00:30:00] or reasonable suspicion, they were just stopping certain people, mostly young black men, on the street, in the hopes that they might uncover some illegal activity.
And that wasn’t an accident, that was an official policy of the New York Police Department, despite the fact that it was blatantly unconstitutional, so it’s really hard to know for sure which way qualified immunity has cut, if it has influenced police conduct at all. But I do think it gives them cover to engage in … to essentially be a little bit more risk taking, in color and [00:30:30] potentially outside the lines, as with the stop and frisk policy, because they can be pretty safe in the belief, or the prediction, that they’re not going to be held liable.

Jay Schweikert: And I would also just add that the constant line that supporters of qualified immunity raise is this whole, “Well, it’s going to chill police in the course of their duties.” So, they think it’s influencing police behavior. Now, there’s obviously disagreement there about what kind of influence that is. I think that pulling back qualified immunity would instead [00:31:00] demand that police be attentive to constitutional rights, but it would be surprising if there weren’t an influence. I’m not a social scientist, I can’t sit here and prove what effect it’s had, but it’s a very clear financial incentive. And it does a ton of work to get rid of civil rights claims. So, I think the burden would be on someone to explain why that very powerful … the presence or absence of such a powerful remedy wouldn’t [00:31:30] have an effect on the people who would be liable.

Trevor Burrus: Of course this a time where in the last three, four years, where we’ve seen a lot of harrowing videos of cops committing horrible atrocities, and I’ve said more than once that from all of us having cameras in our pocket, we’ve learned that Bigfoot doesn’t exist, ghosts don’t exist, aliens don’t exist, but cops are quite aggressive. And some communities have always done this, and now there are just videos out there.
[00:32:00] What happens when a cop shoots someone? After. A, what happens after, what do they have to do? And then B, what tends to happen to their case?

Clark Neily: It really depends. There’s no … what ought to happen and what does, sometimes, maybe even usually happens, is that there’s an investigation, there’s an attempt to determine whether the shooting was lawful. And so they’re going to treat it like any other potential crime, they’re going to gather evidence from witnesses, they’re going to try to determine [00:32:30] if there was a recording, they’re going to get statements from the police officer involved.
And what unfortunately happens more often than I think we should be comfortable with, is these things are done, but they’re done behind this kind of veil of secrecy. In other words, things are not disclosed which ought to be disclosed. They invoke, for example, a kind of an investigative privilege to not disclose videos or other documentation when it’s not really necessary to keep that stuff secret. There’s a real tendency [00:33:00] for police departments to immediately release video that tends to exculpate the police officer involved, but that they’ll hold onto it if it appears to go the other way.
So there’s no kind of one size fits all. We know what should happen. There should be an immediate, authentic, and as transparent as possible investigation. That is not, unfortunately, what happens most often. And the last thing I would add is that one thing we do know, to unfortunately a very high degree of … not certainty, but consistency, is [00:33:30] it is extremely rare for police officers to be charged with any crime when they do shoot a citizen, whether lethally or not, whether fatally or not. And even when they are charged, it is extremely unusual for them to be convicted.
To give you just one example, many of us, I’m sure, have seen the video, the horrible video of Officer Michael Slater shooting Walter Scott in South Carolina, shooting him seven times, or [00:34:00] eight times in the back, as he was fleeing the officer. It just happened to be caught on video. What a lot of people don’t know is that Officer Slater was tried for homicide before a South Carolina jury, and they deadlocked in a case like that. And the only reason that he’s going to prison, where he certainly belongs, is that the federal government got involved, brought criminal civil rights charges against him, and frankly, coerced him, I would say, into pleading guilty. I don’t know about coerced, of course he probably did it … he certainly was guilty in this case, [00:34:30] but he plead guilty to a crime that ultimately he got a 20 year sentence, which is quite stringent.
The consistent, rather consistent outcome in these cases, is that cops are not charged, and even when they are, they are typically acquitted by juries, and that’s problematic.

Jay Schweikert: And I think what that underscores is why qualified immunity itself is such a threat to accountability for law enforcement. Because, civil liability really is the only possible tool we have. It’s just extraordinarily difficult, as Clark said, to bring criminal charges against police, much less to get a conviction. Internal discipline for police [00:35:00] officers is perhaps even less effective in curtailing police abuse.
And so, at least right now, the best tool that we have is when police officers, or other state officials, can make constitutional violations, they’re going to be held liable for money damages. And so that’s important, not just so that … It’s important just for the victim to get relief in their case, but it’s also important at a structural level, because if you don’t have that accountability, if you don’t have something in the background that ensures that if you deviate from [00:35:30] the law, you’re going to be held accountable, then it doesn’t really matter what we say the laws are in the first place. It doesn’t matter what the Supreme Court says our rights are, or what kind of rights we try to codify into statutes. If police, or other state actors, can get away with violating them, they’re just parchment barriers.
And that really, in particular, is why we in the project on criminal justice, are so focused on qualified immunity. We see it as the biggest threat we have right now to enforcing police accountability.

Aaron Powell: When these videos started coming out, and we started getting more news stories about [00:36:00] police shootings, one striking thing was how non‐​threatening a lot of these situations are, where someone gets shot. There was the instance, not too long, about the guy that was basically groveling on the floor outside his hotel room and was shot. That the cops seem to just open fire at nothing. And I was having a conversation awhile back with a friend of mine who was a Marine in Iraq, and he remarked that had he and his men, in [00:36:30] Iraq, behaved the way that cops do, if they had shot people like that, they would have been court marshaled, they would have been imprisoned.
And these are soldiers in an actual war zone, as opposed to police officers walking the beat in America’s cities. That distinction, could we just apply the same standards we apply to our infantry men overseas to the police? Like why do we treat police in our own cities different, and why can they get away with more than soldiers can?

Clark Neily: We put police officers [00:37:00] in the position where they have to go into some very ambiguous, and sometimes dangerous situations. It is, in fact, the case that going to a domestic call is one of the most dangerous things that police do. It’s also very dangerous to pull somebody over on a highway, especially at night. And there are some police officers who have been murdered in cold blood, under circumstances where everything was going fine, until it wasn’t going fine, and then suddenly, very suddenly, the shooting starts and you’ve got a dead police officer.
It’s understandable for them to be extremely anxious about [00:37:30] those kinds of situations, and to want to be able to take any reasonable, tactical advantage that they can, or to have any advantage that they can. The problem is, that one of the ways to ensure your own safety, and to ensure that you’re the one who survives an encounter, is to have a very low tolerance for risk, and have a very quick … to essentially be quick on the trigger. And what we really need to have is a very robust national discussion about how much risk we expect police officers to take, and one of the risks that [00:38:00] I think we’ve got to communicate to them, that we expect them to take, is to hesitate under conditions of ambiguity, until you’re absolutely certain that lethal force is the only thing that will save your life, or the life of an innocent person.
And will that increase the risk to police officers as a whole? Yeah, it will. Just as we expect firemen to run into a burning building, we should communicate to police officers that we expect them to expose themselves to the risk of uncertainty, by not using lethal force until it’s absolutely clear that it’s necessary.
[00:38:30] By the way, that is the standard in Europe. Much different standard here in America than it is in Europe. In America, if a reasonable person would have feared for his safety, he gets to use lethal force. If you’re a cop in Europe, it has to have been absolutely a last resort, and absolutely necessary.
So, we do need to change the standard. And a better policy of qualified immunity would send the signal that … or do a better job of sending signals to police what we expect of them. Right now, they are so often exonerated, in fact, the last 30 times the Supreme Court has heard qualified [00:39:00] immunity cases, it has found for the government official, for the cop, 27 out of 30 times. Only in three cases has it found that the defendant, the government defendant, could be liable.
That’s sending a very clear message that essentially, in almost any situation, except for the most extraordinary circumstances, you’re going to be exempted from liability. And what the communicates to the average cop in the street is, if I couldn’t get sued, if I didn’t have to pay this person damages, what I did must have been okay. And that is absolutely the message that we’re sending police, even when what they did absolutely [00:39:30] not okay. And it’s led to this horrible expression in qualified immunity law, “awful but lawful”. And you’ll see this as an actual … sort of a sardonic description of some of these cases. What happened in this case was awful, but it was lawful, and no one can be sued for it. That’s a pretty bad place to be.

Jay Schweikert: Also, what compounds that problem is that the Supreme Court has permitted lower courts to decide qualified immunity questions without actually deciding the underlying legal question. So for instance, you have some maybe [00:40:00] relatively novel, factual circumstance that hasn’t come up before, and so a court is going to be inclined to say, “Well, there’s no case exactly on point, so we’re going to grant qualified immunity.” They don’t even have to decide in the first instance whether it was unlawful, they can say, “Even assuming it was, there’s qualified immunity.”
So then, police officers, police departments, can look at that case and say, “Oh, well, they were able to get away with it there. And the court never said it was unlawful.” So you can do it again. And in principle, you can have this repeated pattern of let’s say [00:40:30] unconstitutional behavior, but because the courts are always deciding the qualified immunity question first, they never actually get around to establishing what clearly established law is. So there’s this kind of question begging nature to it, where the mere fact that you can decide that clearly established law question stops you from getting to clearly established law in the first place.

Trevor Burrus: If you took away qualified immunity, and had the … let’s say for violations like the camera example, [00:41:00] aside from actual murdering someone, but just the violations of peoples’ constitutional rights, in a variety of ways, if you have them paying, presumably for this, that’s the way we generally do that, the cop is not going to be paying that. This always comes up when you sue the police department, and they say, “What have you really done? The taxpayers just paid you a bunch of money for this.” So how could that effect the behavior of cops, if they’re not paying it?

Clark Neily: It’s a great point, and there’s actually a 2014 law review article that documents that [00:41:30] of all the dollars that are paid out as a result of police misconduct, 99.98% of those dollars are paid out by the police department, which is to say by us, the taxpayers. So that’s right. So there’s another thing that needs to change, and that is that we have to severely curtail indemnity, that’s indemnity, when your employer essentially pays for your wrongs. And require police officers to purchase liability insurance, just like we require from other professionals. For those of us who are lawyers [00:42:00] practicing, you’ve got to be insured. My sister’s a doctor, she’s got to be insured.
So why not require police officers to purchase their own insurance? Maybe we even give them a little extra money so they don’t have to sort of pay for it out of their own pockets. Unless, it turns out that any given individual police officer becomes much more expensive to insure. And of course, the more claims you’re responsible for, the more your insurance is going to cost, because you’re more of a risk to the insurance company. But isn’t that amazing? Isn’t that precisely the incentive that we would want?
[00:42:30] And some of these police officers, if they’re bad enough, will literally price themselves out of the market. They will become uninsurable because they are such a risk to the insurance company, they won’t be able to work as police officers anymore, and that’s exactly the result we want.
So this is an example where if all we did was just better align economic incentives with our policy objectives, we could really change the outcomes, and get much better results. And, of course, we haven’t done that. And instead what we have is a situation where it’s virtually impossible to hold a police officer liable [00:43:00] for violating your rights, but even in those few cases where you can, the police department, meaning you and I, are going to pay for it. It’s hard to imagine a worse set of incentives than that.

Trevor Burrus: Just to follow up to that, could a state, aside from changing qualified immunity doctrine, could a state itself pass a law that said all payouts due to civil rights violations come from police officer’s self insurance fund it all, police officers have to self insure, it will no longer come from the tax payers? They could just do that [00:43:30] via statute, couldn’t they?

Clark Neily: They could fix all of these problems via statute, because the federal qualified immunity standard only limits your ability to sue a police officer in federal court. States, every single state could fix all of the problems we’ve been talking about by creating a cause of action for peoples’ rights who have been violated by police officers, and saying no indemnity except under maybe exceptional circumstances. And the payment has to come from the police officer’s own pocket, or his insurance company.
So yeah, short answer is state legislatures could fix all of this.

Aaron Powell: Let me go pretty radical here, because that’s one of my favorite things to do. [00:44:00] But I wonder if this entire discussion, and the problem that we have been talking about, rests on a conceptual just mistake, almost. So we started this by saying they’re violating … they can violate your constitutional rights, and then they can get away with it. And the Constitution is … we like to think of it as a social contract. It’s a contract between the members of the citizenry and the government, effectively. If we look at it in that way, what [00:44:30] we’ve got is a contract where we have said one party to the contract gets to decide the terms of the contract, interpret the terms of the contract, and enforce and choose whether to enforce violations of those terms, and gets to choose how those things are enforced. Which, explained that way, is nuts. Any other contract, if you tried to set that up, you’d be laughed out of court, right?
And so, is it even realistic to think that these are the kinds of … [00:45:00] these problems seem inevitable, because the government has its own interests, and is the only party at play here. And so, should we be thinking that these sorts of things can’t be addressed by the government? That we ought to be having a third party that is a non governmental thing, or is not part of this system, that gets to look over the police shooting cases, that gets to look over the cases of prosecutorial misconduct so that one party of the contract isn’t deciding its own punishments, its own remedies.

Jay Schweikert: So that is a very large and interesting question. [00:45:30] I will say that what it does bring to mind is the fact that a lot of … so there’s this so called police officer Bill of Rights, or law enforcement Bill of Rights, that is kind of standard, that was originally proposed, I believe, by the Fraternal Order of Police, and has been adopted by statute in many states.
And what this does, is lay out a bunch of procedural protections for police officers under investigation. Clark was alluding to some of these earlier. But sort of codifies this and [00:46:00] gives officers under investigation substantially more leeway, and defense, and protection than ordinary citizens would get. But one of the things that these do, is prohibit civilian review boards. It’s that if there is an officer who is charged with substantial misconduct, there’s almost never an opportunity for a panel of civilians to weigh in and say, “We don’t want this person protecting us anymore.” And that’s kind of shocking, it’s one of the reasons that we … [00:46:30] we pride ourselves on having a civilian led military, is that we think this is a critically important function, but we don’t … we’re not going to put the military ultimately in charge of itself. We think that that needs to be run by a civilian who, in theory, represents the rest of the citizens. That’s something that is generally not even available in principle in matters of police misconduct.

Clark Neily: I’d like to add something that I think is important for people to realize, and that is the extraordinary number of double standards that exist that virtually always benefit the [00:47:00] government. I want to just touch on a few of them, because this is one.
So, if something happens between you and a police officer, it’s going to be relatively easy for that police officer to sue you. So if you drive into his car, or hurt him in some way, it’s going to be relatively easy for you to sue the police officer, but extremely difficult for you to sue him, not withstanding the fact that he’s the one that’s clothed with this tremendous power, and this tremendous discretion, and who has superior training. So you would think it would go exactly the other way, but no, it’ll actually be much easier for him to sue you than the other way around.
[00:47:30] Another example that’s been in the news lately, is it is absolutely permissible for law enforcement officers to lie to us about criminal matters, and they, by all accounts, they do it all the time. It’s become sort of just another investigative tool, so to speak. It is a crime to lie to at least some law enforcement, it’s a crime, it’s a felony, to lie to any federal law enforcement official about a material fact in connection with an investigation. People get hung up on that all the time, it’s called a 1,001 charge, because that’s where it appears in the criminal code.
Another example, [00:48:00] it is felony for you to give a witness a thing of value, in order for them to testify on your behalf in a case. And for good reason, because we have some concern that they might make stuff up to get the reward. Not only is it legal for prosecutors to do that, they do it all the time. And the usual inducement is to drop charges, or otherwise lessen their punishment, but that’s not the only thing they can do. They can give people money, they can give them cars, and houses, and new lives, and so forth. So that’s another double standard.
[00:48:30] And one that’s maybe one of the most infuriating ones, is if you’ve ever heard of a perp walk, that’s where when they come to arrest you, so you haven’t had any process yet. You haven’t had a trial or even a hearing, they’re just accusing you of committing some crime, and they will drag some people out, they’ll even alert the media that this is going to happen. So they humiliate this person by walking them out in front of the media, and they’ve got a press release out, “We’re charging this person with such, and such, and such, and such.” Destroying peoples’ reputations before they’ve even had the benefit of a hearing, let alone a jury trial. And flip it around, [00:49:00] when judges have determined that a prosecutor, and particularly a federal prosecutor, has engaged in willful misconduct, withholding Brady material, for example as Jay talked about earlier, like violating someone’s constitutional rights by failing to turn over favorable evidence, deliberately, it is routine for the Department of Justice to right to that judge and say, “Would you please omit the name of that prosecutor from the opinion.” This is the same agency that perp walks people who’ve only been accused and not tried. But when it’s one of their own, they turn around and say … after a finding [00:49:30] by a judge of wilful misconduct, “Could you please omit this person’s name from the opinion?”
So, at a certain point, this litany of double standards, I think, becomes corrosive to the very institution. And causes people to say, “You know, I don’t respect that institution anymore, because they are constantly applying one standard to themselves, and a different standard to me as the citizen.” And if you think that’s what happens with law enforcement and the Department of Justice, vis a vis you, you are absolutely right.

Jay Schweikert: And qualified immunity is another example. There’s this common phrase, ” [00:50:00] Ignorance with the law is no defense.” And a lot of … the fact that you had no idea something was illegal, or that there was some dispute about … some debate about whether it was legal or not, it’s not going to get you very far. And given this sprawling labyrinthine nature of our federal criminal code, and state criminal codes, gets people into trouble all the time. But in qualified immunity, ignorance of the law is a defense.

Trevor Burrus: Do you get the sense that it’s coming to a head in this … Clark, you left a career that was [00:50:30] not related to criminal justice, because I think you were becoming irate about this stuff, and a lot of people are becoming irate about this. We have Black Lives Matter, we have a growing awareness of mass incarceration, of police misconduct, we have all this stuff. Does that sort of growing awareness of this machine of criminal justice that we’ve built for so long, with double standards, is this a time where real change, do you think, could and will happen?

Clark Neily: I do. I think one of the most important things is something [00:51:00] that Aaron already alluded to, and it seems so pro se, but it’s incredibly important. It’s simply the ability of people to record their interactions with police officers. Just that additional incremental transparency, I think, is becoming to really transform this area. And by the way, it’s one of the reasons I’m so concerned about the practical elimination of criminal jury trials. That is an extraordinarily important form of transparency, and accountability. And while we’re getting significantly more accountability on the citizen cop continuum, [00:51:30] because of being able to record people in public, we’re getting a lot less transparency and accountability on the citizen prosecutor continuum. Precisely because so little of what prosecutors do anymore is anywhere near the public domain, it’s all behind closed doors, and plea negotiations.
So there’s good news and bad news.

Jay Schweikert: And I think specifically on the qualified immunity front, one very encouraging sign was concurrence from Justice Thomas in a 2017 case, Ziglar v. Abbasi, where he concurred it was a [00:52:00] qualified immunity case, he concurred saying, “The court has faithfully applied our precedents, which no party has asked us to reconsider.” But I am increasingly concerned that our qualified immunity jurisprudence has gone off the rails, and basically become untethered to our common law history.
I don’t this his reading of 1983 would go quite as far as my reading would, but it lays out, in very clear detail, how there’s a sort of a common law understanding about limited sets of torts, where good [00:52:30] faith was as a common law defense to that tort, and maybe when you bring those kids of claims under 1983, maybe that common law background should be read into a 1983 claim, which could provide a kind of defense in certain cases, for particular kinds of torts. It depended on the good faith of that individual defendant.
But what we have now, and as he points out, is something completely different and beyond that. We have this clearly established law standard, which is uniform, [00:53:00] which applies to everything across the board, and which is entirely unlike anything that would’ve been contemplated either at the founding, or at the time of Section 1983.
So I think that this … there’s the sense that well, conservatives are going to defensive of cops, and so maybe they’ll be skeptical of qualified immunity. I really don’t think that dynamic applies here, especially because this is such an a‐​textualist, a‐​historical doctrine, that proponents of originalism, like Justice Thomas, clearly note, this [00:53:30] makes no sense, there is no historical grounding here.
One of the parts of Cato’s initiatives to challenge qualified immunity is going to be a very aggressive campaign of amicus briefs, both in the Supreme Court, and in appellate courts. Laying out this history, laying out the lack of legal justification for this doctrine, and how far off the rails it’s gone, I’m reasonably optimistic that there are a lot of judges out there who when sort of put before them, that they’ll recognize this. So I take Justice Thomas’s opinion as a good start, and I hope [00:54:00] that that position will continue to gain more support on the court.

Aaron Powell: Free Thoughts is produced by Tess Terrible. If you enjoyed today’s show, please rate and review us on iTunes, and if you’d like to learn more about libertarianism, find us on the web at www​.lib​er​tar​i​an​ism​.org.