Technically, Any Number of Seconds Can Be Split Any Number of Times

Yesterday, in Chestnut v. Wallace,* the Eighth Circuit denied an officer qualified immunity. That itself is arguably worthy of noting, since the Eighth Circuit is not exactly predisposed to denying qualified immunity.

The case itself is straightforward: a man (Chestnut) quietly observed a St. Louis police officer perform a traffic stop from about 30 - 40 feet away, while leaning against a tree. The officer viewed this as suspicious, and called for backup. A new officer asked for Chestnut's name, birthday, and social security number; he refused to provide the last of these. The officer then frisked Chestnut for weapons, found none, and then proceeded to have Chestnut handcuffed. After about twenty minutes and a conversation with the officer's supervisor, Chestnut was released. Since observing the police does not provide reasonable suspicion of criminal activity, and since people are allowed to not answer questions from the police (such as providing their social security number), no reasonable officer could have had suspicion of criminal activity, and so there is no qualified immunity.

Judge Gruender dissented. This is considerably less noteworthy, since an officer could probably shove a handcuffed detainee off a six-story building and Judge Gruender would conclude he has qualified immunity.

I do want to flag one thing though, from the end of Judge Gruender's opinion. He writes that "police officers are not—and should not be—expected to parse fine distinctions between statutory and constitutional law in split-second decisions." This rhetoric of "split-second decisions" is increasingly common in judicial opinions that seek to insulate police officers from accountability, particularly in use-of-force cases. Maybe we have sympathy for it in that context, maybe we don't.

But it is interesting to see this rhetoric make a near-reflexive showing in this case, as nothing about the police's interaction with Chestnut involved anything like a "split-second decision". There were no sudden movements, no unpredictable reversals or unexpected flinches. Chestnut was far away from the action and was not an imminent threat to anyone. By the time he was placed in handcuffs, the police already knew he was unarmed. That Judge Gruender nonetheless characterizes this case as involving a "split-second" decision suggests that anything the police do deserves that label. But it's just not true. Not every decision a police officer makes in the field is a "split-second" one; the decision to detain Chestnut certainly was not. It was a decision taken after many seconds, under no particular pressures and with ample time to deliberate.

In that same paragraph, Judge Gruender hoarily remarks that police officers in the field are not "participating in a law school seminar." Indeed, they are not. They are taking real actions which have real consequences for real people. Kevin Chestnut was placed in handcuffs for having the temerity to look at the police in public. That's a terrible thing to have experienced; obscured though it might be behind rhetoric of "reasonable suspicion" and the fuzzy line between "detention" and "arrest". We should step out from the legalese fictions that justify qualified immunity, and start taking the reality of what the police do -- and who they are doing it to -- a lot more seriously.

* The opinion was authored by Judge Arnold, joined by Judge Grasz -- and I'll reiterate again what a pleasant surprise Judge Grasz has been on qualified immunity issues.

On the AMCHA "Bringing BDS into the Classroom" Study

The AMCHA Initiative has a new self-published study, which is gaining some attention in the Jewish Press, purporting to show that when teaching courses related to Israel, Palestine, or Zionism, (academic) BDS-backing faculty are more likely load up their syllabi with fellow BDS-supporters, as opposed to giving their students a balanced perspective. Their big takeaway findings are:

• For academic BDS supporters, a median 78% of syllabi readings are by "BDS supporters", compared to a 17% for non-BDS supporters.
• All academic BDS supporters have  at least a majority of readings from "BDS supporters", whereas only 6% of non-BDS supporters have a majority of readings from "BDS supporters".

I'd been hearing about this study for awhile, and I was finally prompted to look it over after reading this laudatory account from Daniel Gordon. Gordon argues that the AMCHA study proves that BDS supporters are sabotaging the values of balance and even-handedness in favor of a one-sided propagandistic approach in their classrooms -- so much so that he suggests that either academic administrators or "the public" at large might be justified in interfering with their content.

That's an aggressive claim, and one that requires equally strong proof. Yet the AMCHA study provides, at best, mixed evidence regarding who is actually being one-sided. Let me present AMCHA's data in a different way that might generate a different intuition (this is derived from "Figure 1" of the study):

• 63% of "no BDS" faculty have at least 80% of their syllabus readings come from fellow "no BDS" authors. For 31%, that number rises to 90%.
• By contrast, just 33% of academic BDS supporters have at least 80% of their syllabus readings come from fellow BDS supporters. And only 7% (aka, one syllabus) has over 90% of readings come from other BDS supporters.

Framed that way, one could argue that it's the BDS supporters who do a better job avoiding overwhelmingly one-sided syllabi. Two-thirds of them devote at least a non-trivial chunk of their syllabi to their ideological opponents. By contrast, BDS opponents are far more likely to completely or almost completely load their syllabi up exclusively with fellow BDS opponents. If the idea is, in Gordon's words, to present "competing narratives", it's far from clear that BDS opponents are doing their diligence in meaningfully presenting the "opposing side".

Now to be clear, I think one can very easily overinterpret this framing as well. Most notably, it doesn't take into account the base rate -- what percentage of authors active in Israel Studies qualify as "BDS supporters"? If it's only a marginal few, then the "no BDS" crowd might be giving their views proportionate weight even if they only occupy 10 - 20 % of the syllabus (and this would, similarly, suggest that BDS backers are significantly oversampling their side relative to its support levels). But base rate levels are very difficult to tease out, and almost certainly vary depending on the specific topic of the course. It's quite plausible that many more authors working on "Palestinian Literature of Resistance" support BDS compared to those working on "Israeli Constitutional Law", and so the fact that a class on the former contains many BDS-backers on the syllabus (or one on the latter contains few) does not necessarily reveal any especial bias on the part of the professor. And that doesn't even go into the over-simplified notion that "BDS support/opposition" necessarily mark out the relevant ideological "sides" for every class.  The difficulties in parsing these out in practice, when they're almost always going to be matters of interpretation, are just some of the many reasons why outside observers should be very leery about substituting their own judgments regarding "balance" and "even-handedness" for that of the professor.

The AMCHA study also raises another pertinent question: Who counts as a "BDS supporter"? Here, the study authors do something rather slick -- they change their answer for the independent versus the dependent variable. The result is to significantly inflate the level of same-side bias that exists on the side of the "BDS supporters".

Here's how it works: For the independent variable -- that is, the professors authoring the syllabi -- the study only includes supporters of academic BDS, specifically, as "BDS supporters". On the other side, "no BDS" professors are those who oppose BDS in all its forms (not just academic BDS but, say, settlement boycotts as well). Those who fit into neither group (people who support some forms of BDS, but not academic boycotts) are excluded.

But for the dependent variable -- that is, which syllabus readings are identified as being authored by "BDS supporters" -- that entire middle-ground category is grouped back into the pro-BDS crowd. Along this axis, "BDS supporter" includes not just academic boycotters, but also

• Anyone who has supported, or signed a petition in favor of, any form of BDS (including settlement boycotts);
• Anyone who has supported a boycott of "specific Israeli leaders"; 
• For Israeli scholars, anyone who either has "challeng[ed] Israel’s right to exist as a sovereign Jewish state" or "call[ed] on Israelis to resist obligatory military service", regardless of whether they've endorsed any form of BDS or not.

And any reading that is even co-authored by anyone in this expansive category is coded as being by a "BDS supporter".

Putting these two different renditions of "BDS supporter" together, the study is measuring the homophily of what we think of as the hardest core of BDS supporters (those favoring academic boycotts) by asking how many of their syllabi readings are at least co-authored by anyone at least as left-wing as Peter Beinart. This is not, to say the least, an especially illuminating metric.

In short, the AMCHA study fails to demonstrate that pro-BDS faculty produce syllabi that are more one-sided than their anti-BDS peers. Indeed, it may instead offer some (albeit weak) evidence in the opposite direction. Not only does it almost certainly exaggerate the same-side bias of BDS supporters by contracting and then expanding the definition of "BDS supporters", but even on face the study findings seem to show that the most ideologically-lopsided syllabi -- in terms of giving significant attention to authors on the opposite side of the BDS ideological divide -- tend to come from BDS opponents.

NYTimes Endorses Warren and Klobuchar

The New York Times has officially endorsed not one, but two candidates in the 2020 Democratic primary: Senators Elizabeth Warren (MA) and Amy Klobuchar (MN). In essence, the Times' picked one candidate from the "moderate" lane and one candidate from the "progressive" lane, while suggesting that either one can and should be acceptable to any decent person seeking to defeat Trump.

The internet reaction, at least in my quarters of it, has been mostly disdainful. The NYT should have had the gumption to make an actual choice. Choosing two people was a cop out. Dismiss dismiss dismiss.

Most of this reaction has stemmed from more left-ward elements. And to be fair, on net the double-endorsement probably helps Klobuchar, who has struggled to gain traction, more than Warren. So it maybe isn't surprising that the left isn't wild about this choice, insofar as it probably does more to help an "establishment" candidate they dislike over a more progressive candidate they (well, some of "they") like or are at least fine with.

But I think there's another element in play here. Recent events notwithstanding, there remains some efforts on the left-side of the party to build a unified front along the axis of either Warren or Sanders, as against the "establishment" wing represented by Biden or Klobuchar. Key to their efforts is a strong distinction between these two wings, such that it is important to maintain progressive unity so we don't hand the nomination to a moderate because the left can't stop fighting amongst itself. This view is very much adverse to the sentiment, communicated by the Times, that all the Democrats (Klobuchar, Biden, Warren, Sanders ...) are fundamentally on the same side, so that we should all be content no matter which of them is picked. This aspect of the editorial is probably what got the most sustained mocking, at least in my feed.

It also is, as you probably know, a view I basically endorse, which is why the Times' double-endorsement didn't bother me all that much. I'm inclined to think that Warren is the best of the "progressive" wing, and Klobuchar probably the best of the "moderate" wing. There's a case to be made for nominating a progressive wing candidate, and a case for a moderate wing candidate, but if the nomination goes in the direction I disprefer I wouldn't view at as a betrayal. Either way, we'd still be getting a candidate who is more-or-less on my side.