Art Maven Roundup

All of the sudden, I've been on an art kick. The below image is a silkscreen I recently purchased from DC-based artist Halim Flowers. Flowers was convicted of felony murder as a juvenile and sentenced to two life terms. He was released after serving 22 years following statutory reforms aimed a juvenile offenders who had received life sentences, and now is showing in galleries around the world.

Pictured: "Audacity to Love (IP) (Blue)" by Halim Flowers. The colors are meant to be reminiscent of the Israeli and Palestinian flags (blue and white, and red, white, and green).

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Trump continues to show his contempt for American Jews, saying any Jew who doesn't support him "hates their religion" (and Israel).

An in-depth story about a White supremacist who was elected to city council in Enid, Oklahoma, and the recall campaign to try and remove him.

Given the well-covered softness in Biden's support in the Muslim community, it seems suicidal to me for Democrats to give into the repulsive Islamophobic attacks holding up the confirmation of Third Circuit Court of Appeals nominee Adeel Mangi (the story indicates that Biden has remained rock-solid in backing his confirmation, but there may be some misgivings in the Senate Democratic caucus).

Writing on the sudden "heterodox" support for revisionist accounts justifying George Floyd's murder, Radley Balko flags what has been obvious for a long time: as much as this cadre likes to bleat about respecting truth, free-thinking, and rationality, it is as if not more beholden to ideologically-convenient narratives at the expense of reality. Pretty much everyone on the internet has been sharing this with their own story of the alt-center blowing past truth in order to push conservative grievance politics; mine was watching them stand in unblinking support of a hit piece on California's Model Ethnic Studies Curriculum even after it was revealed the author completely fabricated the inclusion of a seemingly-damning antisemitic quote.

Interesting retrospective on the Israeli Black Panthers in JTA.

The Supreme Court's frosty reception to the contention that government officials privately lobbying social media companies to take down misinformation is a First Amendment violation is the latest suggestion that the Court is finally losing patience with the regular drumbeat of insane legal theories emanating out of hyper-conservative Fifth Circuit.

A First Amendment Right To Take In Information

Last week, the 8th Circuit decided Molina v. City of St. Louis, granting qualified immunity to police officers who shot tear gas at a group of lawyers (wearing bright green hats saying "legal observer") congregating on their own property while observing protests. The lawyers contended that the police gassed them in retaliation for exercising their First Amendment right to observe the protests. In a 2-1 ruling authored by Judge Stras, the court held that it was not "clearly established" in 2015 that there was any First Amendment right to observe protests.

(Because this is the Eighth Circuit, this is not even the most outrageous qualified immunity decision authored by Judge Stras of its week. That honor has to go to Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication, instead placing him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. Is just refusing to provide prescribed medical care "deliberate indifference" to the inmate's constitutional rights? Of course not! After all, the nurse did not do nothing -- she placed the man on suicide watch! That's what's great about modern medicine: everyone knows it can be freely swapped out with "do nothing but observe the patient" with no material change in outcome. This is why nursing is such an easy and non-stressful occupational path).

The interesting thing about Molina is that the Eighth Circuit had already in prior cases appeared to recognize that there was a constitutional right to observe the police. And under the "prior panel" rule, those decisions are supposed to be precedentially binding. But the Molina panel argued that those cases only concluded that it was a Fourth Amendment violation to seize someone for observing police (since there's no probable cause to believe any crime was committed). This does not establish, in the court's view (and notwithstanding the broad language in the case stating that there is a "clearly established right to watch police-citizen interactions at a distance and without interfering."), that there is a First Amendment right that's been established.

Judge Benton's dissent makes mincemeat of this finely-parsed distinction. But I wanted to flag a particular passage from Judge Stras' opinion that appears to embody a sort of vulgar textualism that's way too clever for its own good. In a footnote, Judge Stras argues:

It is not beyond the realm of possibility that a First Amendment right to observe police exists, but our Fourth Amendment cases like Walker and Chestnut do not clearly establish it. And it makes good sense why. It is one thing to conclude that officers cannot arrest someone passively standing by and watching as they do their job. After all, in the absence of interference, there is no crime in it. But it is another matter to say that watching is itself expressive. Expressive of what? Not even Molina and Vogel can provide a clear answer.

This, to me, seems to prove way too much, seduced by the allure of a hyper-literal reading of "expression". This argument, after all, would suggest that there is no First Amendment interest in reading a newspaper or watching a television program. Certainly, the speaker is expressing something, but what is the reader or watcher expressing? For them too, we could ask "expressive of what?" One can shoehorn in an answer ("they're expressing interest in or approval of the material"), but the more obvious answer is that the First Amendment encompasses interests on both the side of the speaker and the listener, and it is a fluke of grammar that "expressive" only directly captures the former. It seems obvious to me that the First Amendment encompasses some sort of right to take in information, not just to transmit it, and any reading that denies the former under the guise of interpreting the word "expression" is completely misunderstanding how to do legal analysis.

Incidentally, many years ago there was a similar thing with Justice Thomas in his Lopez concurrence, where he tried to bring constitutional Commerce Clause jurisprudence all the way back to E.C. Knight and claim that manufacturing is not "commerce". Among his arguments was the point that, grammatically speaking, you can't really substitute "manufacturing" for "commerce" in the clause -- while one can engage in "commerce" with a foreign nation, one can't really engage in "manufacturing" with a foreign nation. This was an argument that, again, proved too much. If there was a constitutional clause authorizing Congress to "wage war with a foreign power", would the power to "wage war" permit Congress to authorize the construction of warships? As a matter of grammatical substitution, it doesn't work ("construct warships with a foreign power"?). But all that means is the broader phenomenon of "waging war" can include activities which are not grammatically interchangeable with the phrase "wage war". And so too with "commerce", which also can refer to a range of activities which, taken as a whole, operate upon or in relation with foreign nations, Indian tribes, or the several states.

It is not a good thing, but also perhaps not an accidental thing, that the turn towards hyper-textualism corresponds to judges becoming increasingly bad readers of texts. The First Amendment obviously encompasses activities that are about receiving information alongside transmitting them. Pilpul about "expression" doesn't change that.

What Can "Objectively Reasonable" Do For You?

A new study (summarized here, published and paywalled version here) explores how the phrase "objectively reasonable" -- a very important phrase in the law surrounding assessments of police misconduct -- changes American perceptions of police officers. The core finding is that "objectively reasonable" makes listeners -- and particularly racial minorities -- think more favorably of the officer so labeled (compared to saying something like "the average police officer").

It's an interesting study, though my initial instinct is that the takeaway from it may be exactly opposite of what the authors imply. The authors suggest that the use of "objectively reasonable", since it is associated with more positive perceptions of the police, primes listeners (such as jury members) to think of the police more favorably than they otherwise would. But I think the effect may be the opposite: by asking jurors whether a given officer acting as an "objectively reasonable" officer would, the fact that "objectively reasonable" brings to mind higher levels of professionalism and conscientiousness means that the actual flesh-and-blood officer being judged is effectively being held to a higher standard than he or she otherwise would have.

Consider a jury deliberating over whether an officer accused of misconduct violated the legally-relevant standard of behavior. If that standard is that of the "average officer", the juror might think "well, their conduct wasn't great -- but then, the average officer isn't that great either. Can I really say that this guy performed worse than average?" But if "objectively reasonable" calls to mind more conscientious behavior, that same juror might conclude that the officer in front of the court did not meet that more idealized conception of how an officer should behave. So telling the jury that the officer they're evaluating must have acted as an "objectively reasonable" officer would cause them to more rigorously scrutinize the officer's conduct.

In other words: an officer whom we've already stipulated is "objectively reasonable" will be viewed more favorably than one who we only stipulate is "average". "Objectively reasonable" is better than "average" (at least for non-White respondents). But for that very reason, an officer whose performance we are trying to assess on a blank slate should be more likely to surpass the standard of "average" than the standard of "objectively reasonable", since the latter appears to be a higher bar than the former. So insofar as jurors are instructed to ask whether an officer behaved in a manner that comports with an "objectively reasonable officer", that should make them less likely to answer "yes" compared to if their standard was that of the "average" officer.

Coming Soon: Abolishing Qualified Immunity for Everyone But Killer Cops

As "qualified immunity" has become a more prominent target for criminal justice reformers, it has been noted by many that Justice Thomas has regularly been issuing calls for the Court to reconsider the doctrine (one which, as he notes, has little historical or textual basis to it). But yesterday, writing on the denial of certiorari in a case called Hoggard v. Rhodes, Justice Thomas gave further color to how his revisiting qualified immunity might look -- and it doesn't exactly bode well:

[T]he one-size-fits-all doctrine [of qualified immunity] is also an odd fit for many cases because the same test applies to officers who exercise a wide range of responsibilities and functions.... why should university officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting? We have never offered a satisfactory explanation to this question.

In other words, Justice Thomas is suggesting a path where we keep something like qualified immunity for police officers using violent force, but abolish it for public university officials contending with the judiciary's rapidly evolving and often seemingly arbitrary campus free speech jurisprudence, because police officers have to make "split-second decisions" whereas campus deans have time to "calculate". If ever there was a way to get the new right-wing court onboard with getting rid of qualified immunity, holding out the possibility that one could open up politically targeted harassment suits of hoity-toity college administrators while preserving the authority of the police to maim with impunity is about as tantalizing as one could get.

On the point that police officers are differently situated because they have to make "split-second" choices, I'd note first that a separate distinguishing feature between the deans and police officers is that the alleged constitutional violations of deans typically don't involve killing anyone (and typically can be fully remedied by injunctive relief). I'd note second that judges sometimes have a propensity to describe any police misconduct as involving "split-second decisions" even in cases where they are absolutely making calculated choices under no especial pressure or time crunch.

Chauvin Sentenced to 22.5 Years

Former Minneapolis police officer Derek Chauvin has been sentenced to 22.5 years in prison for the murder of George Floyd.

No sentence can bring George Floyd back to life, and hence no sentence can in itself create justice. Moreover, no sentence of Derek Chauvin can, in itself, reform the structures of policing that enabled George Floyd's murder. A single sentence, after the fact, does not change anything.

Nonetheless, the criminal sentence is important -- it is important for providing some measure of closure to Floyd's family, it is important as a signal of the seriousness with which we take crimes of this nature, and it is important as a means of communicating to other officers that this sort of behavior will be met with significant consequences. Chauvin faced a maximum of forty years; he asked for probation. The guidelines for an offender without a previous record would have been 12-15 years, but as the sentencing judge noted there were aggravating factors in this case.

Paul Butler said that taking all of that into account, an 18 year sentence struck him as appropriate. Twenty-two and a half years is more than that, but in the same ballpark. It strikes me as appropriate, proportional, and -- as far as can be achieved in unjust circumstances -- just. But my opinion is not especially important, so my main hope is that Floyd's family and community feel the same.

Reluctantly Not Being Evil

In Texas, a federal judge has thrown out an effort by Texas Republicans to invalidate over 100,000 legally cast ballots down via "drive-up" voting procedures in Harris County, ruling that the plaintiffs lacked standing. That's rightfully the headline, and it certainly puts this judge ahead of his colleagues on the 8th Circuit, but buried in the middle of the story we read that -- had he found the plaintiffs had standing -- he would have enjoined any further (i.e., today's) drive-up votes from counting. In other words, he thinks the plaintiff's crackpot theory is correct on the merits, he's just bound by technicalities not to give them what they want.

Meanwhile, the Supreme Court today reversed the 5th Circuit's decision that prison guards leaving an inmate in a cell overflowing with his own bodily waste and sewage deserve qualified immunity, concluding this was one of the rare instances where even general statements of law could provide fair notice that the relevant governmental conduct was unconstitutional. This is noteworthy on its own, as the Supreme Court virtually never intercedes to chide lower courts for being too willing to grant qualified immunity, but apparently this case was a bridge too far. Justice Alito concurred in the case -- which, again, puts him ahead of Justice Thomas, who dissented without opinion -- but wrote separately to chastise the Court for even taking the case, deeming it a matter of mere error-correction that was not worthy of the Court's time. Again, Justice Alito seems flatly annoyed that he was placed in a position where he felt compelled to be less of a schmuck than he'd like -- and anyone who voted for to intercede in Dunn v. Ray has permanently lost the ability to complain about the Court being too loose in hearing cases.

A Tale of Two Protests

I don't know if I've said this before, but I think one of the key reasons why the public largely stayed supportive of BLM protesters in the wake of violent police responses is that they occurred just weeks after we all saw right-wing protests over COVID restrictions being met with sober police restraint.

When the far-right began swarming state capitals and government buildings with assault rifles and far-right insignia, screaming about their God-given right to not do the bare minimum to keep their fellow Americans uninfected by a deadly pandemic, the police by and large stood back. They didn't start shooting tear gas and pepper spray. They didn't wade in and start bludgeoning people. There were no mass arrests. And at the time, when all of that didn't happen, I think many more establishment-minded observers viewed that as proof of policing professionalism. "They're doing their job. They don't have to support a protest to defend a right to protest. Even when people are acting manifestly crazy, the police shouldn't escalate the situation. Kudos."

[Remember this photo?]

And then, immediately after, we had another round of protests: this time about the right of Black citizens not to be executed by armed agents of the state (or -- just as bad -- yahoo vigilantes who view themselves as proxy agents of the states). And the contrast in terms of the police response couldn't have been starker. Right after we had a demonstration of how the police could stay restrained in the face of protests if they wanted to, we saw a demonstration of how the police would unleash hell on protesters whose cause they did not endorse. It badly undermined the notion that any of this was about neutral principles of law, or difficult choices in hard situations. It was a choice.

Anyway, a pro-Trump caravan has stopped traffic on New Jersey's Garden State Parkway. But I haven't seen any reports that they've been tear gassed or maced -- probably because they're not presumed liberals marching to vote.

Everybody is seeing the difference. It's a choice.

What Makes These Protests Different From All Other Protests?

I'm trying to figure out why this round of protests against police violence feels different, in terms of the public resonance it's having, than what came before. It seems every few days we get a new wave of breathless commentary about how the backlash is coming among White suburbanites in Wisconsin and ... so far, it hasn't manifested. It'd be wrong, obviously, to act as if the entirety of America is behind the protesters or anything like that, or if there aren't important divisions and controversies among people who generally do count themselves as supporters. But in the broad sweep of things, support has been far more robust than one might have predicted based on past history.

One candidate that stands out in my mind is that the latest round of protests, sparked by the police killing of George Floyd, occurred basically immediately after a different round of protests by mostly White right-wingers angry about mask-requirements and coronavirus lockdowns. Americans had just been swamped with pictures of heavily armed and kitted-out protesters getting right up in the face of police officers and screaming at them, as the officers stoically endured the assault. A lot of people remarked that the police would be a lot less stoic about this sort of thing if non-White people tried to pull it. And then, wouldn't you know it, we immediately got confirmation.

The response to the anti-lockdown protests was tangible proof that the police could, if they wanted to, respond to high-emotion and fraught protest situations without significantly escalating the situation. So when we saw how they responded to the Black Lives Matter protests occurring essentially at the same time -- indiscriminately using force, arresting journalists and lying about it, and more -- it really underscored that these were choices the police were making that were not inevitable byproducts of having a tough job and being in a difficult situation.

Of course, the differences in how some protests are treated compared to others is nothing that new under the sun when one takes the macrolens out. But the direct juxtaposition -- where one protest immediately followed the other, and the differences in the police response was so drastic and so visceral -- I think made a serious impact. Watching the police act like basically like a type of gang caused a lot of White observers who maybe had a basic faith in the general professionalism of the police to reassess their views. And that reassessment is proving stickier than I think many anticipated.

Rosa Diaz: The Face of Police Brutality

While it obviously is not anyone's top priority, many media observers have been wondering aloud about how Brooklyn Nine Nine will address the changing public perception of policing when it returns for its next season. Already, Terry Crews has suggested that several completed scripts have been scrapped as showrunners realize that they need to adapt. But it is going to be a very delicate line to walk. Since the show almost certainly is not going to return as a post office sitcom, it can't ignore the issue, or carry on as if the last few months haven't happened. Yet it probably can't do a full police abolition narrative, while if it takes a reformist approach it will be criticized for being too timid and out of touch.

As much as I love the show, I don't know if this is a hole it can write itself out of. But as I've thought about it, I keep on returning to one potential plotline:

Rosa Diaz gets kicked off the force for police brutality.

Now before I go further, I want to make two things clear.

(1) I adore Rosa Diaz. She's possibly my favorite character on the show. She's a queer icon. Stephanie Beatriz is a treasure.

(2) Rosa Diaz is definitely the main cast character most likely to physically abuse a suspect. Her whole character is based on her being violent, aggressive, and hot-tempered. She literally jokes about committing police brutality in the show's second episode!

It's not hard to imagine the scenario. Rosa is chasing a suspect through New York City alleys. She has to jump over dumpsters and garbage, she's hot, sweaty and frustrated. When she finally catches up with the guy at a dead end, she's basically snarling. And so even though he's cornered and not a threat, she takes him down -- hard. Which someone records, and it goes viral.

At this point, the squad divides. Jake, still hopped up on his childish notions on what it means to be a bad-ass cop, backs up his old friend from the academy; while Amy, in a new leadership position and more exposed to political fallout can't bring herself to defend Rosa's actions. Terry is sensitive to police brutality, having recently experienced a racist confrontation that nearly turned violent, and is surprised to learn that this is one area where Holt -- while not exactly approving -- is a man of his generation of cops, thinking that a rough take down of a suspect is business as usual and not worth getting riled up about. Hitchcock and Scully choose opposing sides for arbitrary reasons. Boyle is paralyzed by indecision.

Jake seizes on the notion that if he can prove the suspect really was guilty of a crime, Rosa's actions will be seen as justified. He works the case feverishly until he eventually discovers that the man Rosa injured had some drugs in his apartment -- a triumph, until Amy points out the obvious so what? So what if the guy smoked a few joints? Does that mean he deserved to be abused? Is Jake really going with "he's no angel"?

And so the resolution is not that Rosa is let off the hook, or learns a valuable lesson, or has the squad unite behind her. The resolution is that Rosa is fired from the NYPD (and, I imagine, written off the show).

Does it have to be Rosa? Could it be a random Nine Nine beat cop we had never seen before instead? No. It has to be Rosa, because it has to be someone we care about. The problem of police abuses is misjudged if it's viewed as the product of a few sadists hidden from public view. Those people exist, but the larger issue is that police abuse occurs by men and women who are in other respects normal, likable, courageous -- people who do good things, have friends who care about them and who care about others, people who in other contexts may do good or even heroic deeds. The Florida cop who attacked a peaceful protester, the one with 79 use of force complaints in three years? He also stopped a suicidal woman from jumping off a bridge. I bring this up not as an excuse -- just the opposite. It is to hammer home the gravity of the problem. This is the banality of evil at work; we deceive ourselves if we think it is a problem that is restricted just to some anonymous snarling monsters. We have to get used to the idea that police violence (like all injustices) are perpetrated by people who look familiar to us.

It has to be Rosa because it has to be someone who has already been fully fleshed out as a human, with the full array of human relationships and feelings and sentiments and history that humans carrying with them. It has to be someone we care about. Only that will give the issue the gravity it deserves.

Israel as Contagion

There's a narrative bubbling in certain areas of the left which seeks to tie American policing abuses to cross-training exchange programs some police departments do with Israeli counterparts. The narrative has its roots in Jewish Voice for Peace's "Deadly Exchange" campaign, which uses the claim as a means of further its campaign to see Israel isolated and ostracized in global society. As the issue of police violence surges to its place at the top of the public's deliberative agenda, the deadly exchange claim likewise attracted those eager for a anti-Israel or antisemitic hook. Just yesterday, new Labour leader Keir Starmer sacked Rebecca Long-Bailey -- a prominent Jeremy Corbyn ally and one-time rival for party leadership -- from her position in Labour's shadow cabinet after she approvingly shared an article where actress Maxine Peake claimed, without evidence, that "The tactics used by the police in America, kneeling on George Floyd’s neck, that was learnt from seminars with Israeli secret services."

This is not true. Many have cited an Amnesty International report where, they say, it is proven that Israeli police train their American counterparts in human rights violations. But Amnesty has since come out and said explicitly that "Allegations that US police were taught tactics of ‘neck kneeling’ by Israeli secret services is not something we’ve ever reported." This is not surprising, as the content of these exchange programs by all accounts rarely, if ever, focuses on what we might euphemistically call "interpersonal" or "tactical" elements of police activity (it generally concentrates on strategic questions regarding operational responses to mass atrocities -- a subject upon which Israeli security forces sadly carry much expertise).

So what is going on? The stock response from those objecting to the link is the simple but truthful observation that American police hardly need Israeli help on the subject of how to harass racial minorities. Some have argued that, because it is true that there are Israeli and American policing exchange programs (and apparently some Minneapolis officers had partaken), it is ipso facto fair to draw a connection between American abuses and those training seminars -- without any regard to what actually is or is not done in those programs. The argument, in effect, a contagion theory: anyone who associates with Israelis, we can assume, is at least partially corrupted by the contact. They're worse off coming out than coming in.

In apologizing for her comment, Peake said something very interesting: she said "I was inaccurate in my assumption of American police training and its sources." Assumption is the key word there: she had, presumably, read about Israeli and American police training together, and so she assumed that the bad American practices had Israeli roots. But the only evidence was the bare fact of contact -- that's what's driving the narrative. Hence: contagion.

This, I submit, is something antisemitism does. It allows such assumptions to become naturalized. They feel right. American police have done exchange training with counterparts in dozens of other countries, ranging from the UK to Germany to Mexico to Tanzania. Even those who take a dim view of, say, the Mexican police however would likely not jump from mere contacts to causality. If someone said "American police learned chokeholds from Tanzanian police," they'd ask for evidence. If the only evidence is "there are exchange programs between American and Tanzanian police", that likely wouldn't be sufficient. But antisemitism gives a smoother cognitive ride down -- it makes little connections look huge, and implausible leaps seem manageable. It is not accidental that the narrative is about Israeli police exchanges and not German or Mexican or Tanzanian ones.

This is an unorthodox but I think ultimately more accurate way of understanding what antisemitism does. We think of antisemitism often as a motive: because I hate Jews, I think or say or do this thing. But antisemitism is more often a force or process. We usually ask "did Burke or Long-Bailey say what they say because they hate Jews?" The answer to that may well be no. But that's not the right question. The right question is "did a particular way of thinking about Jews render what Burke or Long-Bailey said plausible or resonant in a way it otherwise would not have been?" And there I think it is quite clear that the answer is yes. It is because we think about Jews in a particular way that this contagion theory of Israeli culpability in American policing injustices -- a narrative which objectively stands on such a thin reed -- is plausible when it otherwise wouldn't be. That is the work of antisemitism.

Are Americans Grasping the Reality of Police Violence?

As the nation continues to be gripped by protests against police brutality, I've been struck by the near-constant footage of excessive police force against journalists and civilians who seem to be doing nothing more than exercising their constitutional rights. For me, it powerfully communicates the reality of a central theme of the protests: that the police are out of control and are acting as a tool of repression and violence against the Americans they nominally are there to protect.

But my vantage is only a partial one, and I've been waiting to see evidence about how the American people as a whole are reacting. We all still are living in the shadow of 1968, and there is the constant fear that the narrative that emerges will be one where the police are the victims and "law and order" must be restored. Is that what's happening?

Today, Kevin Drum links to new polling that gives cause for optimism: Asked over the weekend whether "police violence against the public" or "violence against the police" was a more serious problem, Americans picked the former by a 55/30 margin. Independents answered at roughly the same margin -- 54/27. Even White Americans agreed by a 50/35 margin (for Black Americans, the gap was a whopping 85/8).

It's just one poll, and just one question. But it does seem to point to a potential sea change (also on that note: a Minneapolis city councilor talking seriously about trying to disband the Minneapolis Police Department outright).

Meanwhile, it's primary night in several states across America -- off-hand, none of the marquee races seem like they'd be particularly impacted by the protests (maybe the effort to take out White Supremacist GOP Rep. Steve King), but I suppose we'll see.

Eighth Circuit Absolves Another Minnesota Police Killing

On Friday, the United States Court of Appeals for the Eighth Circuit handed down its opinion in Kong v. City of Burnsville, a case regarding the killing by Burnsville police of an Asian-American man in the midst of a mental health crisis (Burnsville is a suburb of Minneapolis). The district court had denied qualified immunity to the officers, allowing the case to go to trial. On appeal, however, the Eighth Circuit (by 2-1 vote) reversed, holding that the officers' conduct did not violate clearly established law.

The facts of the case are complicated. Early one morning, Burnsville police received a report of suspicious activity in a McDonald's parking lot. A man (Kong) had been spotted sitting in his car for thirty minutes, waving a knife and jumping around. Officers arrived and at first passively monitored the situation. Then they asked the man to put down the knife; he was unresponsive. It was pretty evident that he was undergoing a mental health crisis, but he had not committed any felonies and did not appear to be an immediate threat to anyone.

Eventually, police broke the windows of his car and tased Kong twice. Kong did not drop the knife; he stumbled out of the car and broke out running towards the street where traffic was still driving by. At that point, police officers opened fire, striking and killing him (one bullet lodged in the bumper of a passing vehicle).

The majority held that it was not clearly established that the police could not open fire in this scenario. They contended instead that the officers reasonably perceived Kong as posing an imminent safety threat to the civilians driving by. Judge Kelly, in dissent, pointed out that it was obvious that Kong was undergoing a mental health crisis and he had never threatened anyone, and that in any event people in cars would not be in especial danger from someone holding a knife. A jury could therefore conclude that the decision to open fire on Kong was excessive.

I personally think this is legally a close case -- though close cases I think are generally best left to juries rather than plucked out by judges. But given the current circumstances in the Twin Cities and around the country, I thought it was noteworthy that this case was handed down this Friday, and wanted to give out the facts.

Qualified Immunity and Criminal Law

Normally, we think of civil cases as being easier to win than their criminal counterparts. The standard of proof is lower ("preponderance of the evidence" versus "beyond a reasonable doubt"), and many activities which are not subject to criminal penalties might nonetheless carry civil liability. There's a reason why O.J. Simpson was acquitted of murder but nonetheless lost the civil suit against him for wrongful death.

But, at least in the context of police brutality cases, there is one hurdle present in civil litigation that is not found in criminal law: qualified immunity.

Qualified immunity is a judicially-made doctrine that shields officers of the state (not just police officers, though they're the most common subjects of litigation) from civil liability for constitutional violations unless they violate "clearly established" law. In other words, it's not enough for the police officer to have violated the law, it has to have been obvious in advance that they violated the law. The judiciary has interpreted this in an exceptionally stingy fashion, insisting on extremely granular inquiries into whether the precise fact pattern alleged by the plaintiff had been specifically demarcated as unlawful in a prior case. The question isn't something like "has it been 'clearly established' that a police officer can't physical strike an non-resisting suspect?", it's instead more like "has it been 'clearly established' that a police officer can't specifically tackle a non-violent, non-resisting, non-threatening suspect who weighed 130 lbs?" If one doesn't find a case that mirrors those facts, the law isn't "clearly established" and the case fails. The Supreme Court itself has accordingly characterized qualified immunity as a shield for all except "the plainly incompetent or those who knowingly violate the law." And the Eighth Circuit (which includes Minnesota) -- well, it's insulated some pretty wretched behavior under qualified immunity's guise (and some of its judges think it hasn't gone far enough!).

By its nature, qualified immunity means that many actions which are concededly unlawful violations of Americans' civil rights are nonetheless protected from civil suit. But there is no qualified immunity in the criminal law: one cannot escape criminal punishment by arguing that there has not been prior case law "clearly establishing" that the conduct you're accused of is unlawful. I'm dubious about the ultimate viability of criminal law to serve as a systemic brake on police brutality -- I'm not sure that is a task it is well-suited for (though it is certainly appropriate in particular cases -- the George Floyd case appearing to be an obvious). But a criminal prosecution -- as much as it is (properly!) hamstrung by heightened burdens of proof compared to a civil suit -- does evade the strictures of qualified immunity. And given how aggressively the judiciary has interpreted qualified immunity to shield bad actors in the American policing system, that's a virtue which cannot be discounted.

How Much Destruction Has Pearson v. Callahan Wrought?

Today, the Eighth Circuit ruled en banc, in Kelsay v. Ernst, that a police officer violently tackling a non-violent, non-threatening, non-resistant 5'0 130 lbs woman suspected of a misdemeanor, breaking her collarbone, did not violate anyone's clearly established right to be free from the use excessive force. To add insult to injury, the woman the police assaulted was the nominal victim that brought them to the scene -- a friend of hers had tried to toss her into a public swimming pool, someone thought he was assaulting her and called the cops, she tried to tell the police that it was just horseplay and they shouldn't arrest him, and so they naturally responded to this innocent misunderstanding by breaking her bones and arresting her too (for obstruction of justice).

The vote was 8-4, Judge Colloton writing for the majority, with Chief Judge Smith and Judges Kelly, Grasz, and Erickson dissenting.

Sadly, "Eighth Circuit is fine with police officers violently assaulting unarmed, non-violent individuals" is scarcely even news at this point. But Judge Grasz -- dissenting separately (he also joined the main dissent from Chief Judge Smith) -- also made a point to call out the majority for declining to decide whether, going forward, it is indeed unconstitutional to violently tackle a non-violent, non-threatening, non-resistant suspected misdemeanant. This refusal is permissible thanks to a 2009 case called Pearson v. Callahan -- where the Supreme Court said that lower courts could toss civil rights lawsuits solely upon finding that the alleged constitutional violation's unlawfulness was not "clearly established" at the time of the injury, without ever deciding whether the violation actually was unconstitutional. The paradox is that, by refusing to make the latter decision, the law remains not "clearly established", and the government conduct -- even, it must be stressed, conduct that actually is unconstitutional -- is permitted without consequence indefinitely into the future. Even if (and I know this sounds crazy) it is true that violently tackling non-resistant, non-threatening suspects is unconstitutional, the effect of Pearson is that courts never will be compelled to declare it so, and so this unconstitutional abuse can go on in perpetuity.

I'm honestly not sure if any case has a worse ratio of destructiveness-to-public-profile than Pearson. Qualified immunity jurisprudence -- and in particular, the incredible stinginess through which the courts assess whether a given right is "clearly established" -- would still be a disaster without it, but Pearson has turned it into a farce. As Judge Grasz (and several others, including other right-wing stalwarts like Judge Don Willett on the 5th Circuit) have observed, Pearson has locked victims of excessive force into a prison of the court's own jurisprudence, and then allows judges to toss away the key.

If there's anything positive to say here, it's the continued good work from Judge Grasz, who is rapidly becoming one of the great surprises on the Eighth Circuit since his confirmation in 2017 (he had been rated "not qualified" by the ABA after his nomination by President Trump, but was confirmed anyway by a 50-48 vote).

There's No Wrong Way To Terrorize a Black Guy in the Eighth Circuit

Last week, the Eighth Circuit released an opinion in Clark v. Clark, a case involving a law-abiding Black gun owner in Missouri. Police responded to claims of gunshots in the vicinity of a Missouri rest stop. On arrival, they encountered Gregory Clark, a Black man sitting a table outside the building. Seeing they were officers, Clark immediately handed over his driver's license, retired military ID, and concealed carry permit, and also informed them he was armed. He was questioned if he had heard any gunfire (he hadn't) and where he was going (Chicago).

Then the police ran his identification (which came back clean). Clark was apparently not wild that the police ran his ID, which he thought was potentially a case of racial profiling, and asked a question gesturing in that direction ("[would you] have done that to anyone else?"). The officer responded poorly, angrily replying "don’t play the race card with me", and returned the identification cards back to Clark.

The police then left Clark, and Clark in turn returned to his vehicle and drove away in the direction of Chicago. The police trailed him, and Clark began to fear for his life. He made a U-turn, and officers continued to follow. After more cop cars began to arrive on the scene, he pulled over to the side of the road and placed both hands outside of the window to show he wasn't holding his gun. Officers nonetheless approached the car with weapons drawn, one pointing his gun at Clark while ordering him out of the car. After a bit more confusion and discussion, it was eventually determined that Clark had committed no crime and done nothing wrong, and he was allowed to leave once more.

The Eighth Circuit, in an opinion by Judge Erickson joined by Judge Colloton, concluded that the entirety of the police conduct -- which culminated, let's recall, in the police pointing their weapon at a Black man who had done absolutely nothing wrong and had seemingly taken every conceivable step to scream out "I am not a threat" -- was wholly lawful.

And that's why I flag this case. In an alarming number of circumstances, there is nothing a Black man can realistically do to avoid having a gun pulled on him by police. He can be entirely law-abiding, forthright about his (legal) gun ownership, compliant with police demands, going out of his way to and keep his hands clear -- doesn't matter. And likewise, he cannot seek to avoid police interactions -- even knowing (apparently accurately) that they put him at risk of having a gun pulled on him for no reason whatsoever. Judge Erickson, for example, argued that both Clark's highway U-turn to avoid the police, and his affirmative decision to put his hands out the window to show that he wasn't holding his gun, were "unusual and may be indicative of guilty conduct."

Chief Judge Smith disagreed -- and it is perhaps not coincidental that Judge Smith is the only African-American Judge on the Eighth Circuit. In his view, while the initial encounter at the rest stop was lawful (and I agree -- while I understand why Clark might have felt aggrieved, he was the only person in the vicinity where gunshots had been reported and he admitted he was carrying a gun), the police response to Clark on the highway was not (Judge Smith ultimately would have found that the officer nonetheless enjoyed qualified immunity).

Put simply, Clark is allowed to not want to interact with the police. African-American men have excellent reason to try to avoid police encounters for fully innocent reasons like "wanting to avoid an elevated chance of having a gun pulled on you" -- as this case well demonstrates. But there's really nothing they can do to avoid it -- including "literally trying to avoid it".

Meanwhile, today the Eighth Circuit en banc dismissed, by 5-4 vote, Dorian Johnson's claims against Ferguson, Missouri and Officer Darren Wilson for conduct stemming from the infamous shooting of Michael Brown (Johnson was walking beside Brown during the incident). Johnson alleged that Wilson ordered the pair to "get on the fucking sidewalk", then abruptly parked his car in front of the duo, blocking their path, struck Brown with the car door, got into a scuffle with Brown, and ended up firing his weapon at the pair (missing Johnson but striking and killing Brown). Nonetheless, the Court concluded that the pair had not been seized because (a) Johnson did not need to "remain by Brown's side" while Wilson and Brown fought and (b) the position of Wilson's police car did not literally block them entirely from fleeing the area.

The dissenters (Judge Melloy writing for Chief Judge Smith and Judges Erickson and Kelly) simply make mince-meat of this argument. The touchstone question for a seizure is whether the officer's actions would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business". There might not be a single area of constitutional law with more ludicrous precedents than this -- the sorts of scenarios where courts say, with apparent straight faces, that people would feel free "to ignore the police presence" are beyond absurd (to take one example, cited in the dissent: in United States v. Hayden, we were told that any reasonable person would feel free to ignore the police when the officer pulled up alongside the defendant, shined a flashlight on him, and screamed “Police!”). Yet even here, the facts clearly "communicated an intent to use a roadblock to stop Johnson’s movement," and therefore a seizure.

The argument that the roadblock did not literally prevent all modes of escape from the area should be too ludicrous to reply to if the majority did not rely on it. Not only is that unrealistic in practice -- just how tight must the dragnet be, then, before it is conceded to be impossible to escape? Must the officers all lock arms in a circle? -- it has nothing to do with the legal inquiry, which is whether a reasonable person would understand the officers as trying to communicate an order to stop. Abruptly driving your police car to place it directly in front of your quarry's path does that, and it's not close. There's virtually no question that had Johnson attempted to "simply ignore" Wilson's directives the officer would not have thought "well, that's perfectly innocent conduct reflecting his right to ignore me under the Constitution" (look what happened to Clark!).

Of course, it's possible that in this case the extremely high-profile and heavily-reported nature of the controversy might have influenced the court's decision -- in particular, they might believe that the facts might not have been as Johnson alleged. But it is hornbook law that at this stage in the proceeding judges must accept Johnson's factual allegations as true -- disputes of fact are addressed at a later stage. And that matters because this case sets a precedent, which in turn applies to other cases down the line where the facts haven't been as thoroughly hashed out in the media as here. It is not just Dorian Johnson but any person who finds a police car screeching to halt inches in front of them after being screamed at by the officer who now will find that -- contrary to any actual "reasonable person's" perspective -- it would be wholly unreasonable for them to believe that the police were communicating that they needed to submit.

I'd say that the majority might have allowed itself to be swayed by the public nature of the controversy, except that gives them far too much credit. The fact is, the Eighth Circuit has near-infinite tolerance for police excesses directed against the citizens in its jurisdiction, in cases of any degree of public prominence. Clark is a low-profile case and Johnson is a very high-profile one, but they're tied together by the unifying cord of all the Eighth Circuit's jurisprudence in this area: extreme, complete, and unshakable deference to the police over and against ordinary citizens.

Ethiopian Jews Stage Massive Protest Against Police Violence in Israel

The story is here. The immediate spark of the protest was the fatal shooting of 24-year old Yehuda Biadga (he allegedly charged police with a knife; his family says he suffered from PTSD and claims the police used excessive force), but as one of the protest organizers put it that particular event was "the last straw" for a community that has long alleged it has been victimized by violent policing practices and other forms of discrimination in Israeli society.

In terms of demands:

The demonstrators are calling for a judge to look into Biadga’s death rather than the Justice Ministry department responsible for investigating police incidents. They are also calling for an emergency Cabinet meeting on police violence, beefing up a government task force on racism and the full implementation of the recommendations of the Palmor Committee on ending discrimination against Ethiopian Israelis.

Online, there's an interesting divergence going on among lefty-ish commenters who caught wind of the protest -- half of whom seem to think the march is against Zionism (it isn't) and are accordingly all for it, the other half of whom recognize that the marchers do not identify as anti-Zionist and accordingly think they deserve whatever they get. It's charming.

In any event, though, the Ethiopian Israeli community deserves our full support. Racism exists in Israeli society just as it exists across the world, and we cannot be in denial about it. All this talk about how "a Jew is a Jew is a Jew" just isn't reflecting the reality of Jewish experience -- if it was, we wouldn't be seeing protests like this. And I hope that Jewish organizations around the world -- inside Israel and out -- rally in support of our Ethiopian compatriots, standing with them as they define their ambitions, not imposing whatever narrative we wish they might be speaking of.

#HardPickHal and the Rise in (Stories on) Calling the Police on Black People

By now you're familiar with #HardPickHal (my hashtag -- make it fly), who called the cops on a fellow pickup basketball player after -- I swear I'm not making this up -- a particularly hard foul.

He follows in the grand tradition BBQ Becky, Permit Patty, and the many other cases of White people calling the police on Black people for mundane activity -- at best, trivial offenses, at worst completely innocent conduct.

The recent flurry of these stories makes it seem like this is an newly-emergent phenomenon -- what happened to make White people start calling the police on Black people willy-nilly all of the sudden?

Of course, the most obvious explanation for our increased awareness of this phenomenon is not that it's suddenly occurring more frequently but a simple availability bias -- it's always happened like this, only now we're actually hearing about it.

And that seems mostly right. For a long time there have been complaints about White people -- particularly in the context of gentrification -- calling the police to enforce "quality of life" norms that target Black and Brown members of their community (typically long-standing residents) as a means of harassment. If we're hearing more about it now, that's not due to any change in behavior but rather new attention on an old phenomenon.

But I do wonder if there might be something going on reflecting an actual change in behavior -- an increase in White people threatening to call the police on Black people as a means of asserting racial dominance.

Basically, the idea goes like this. One way #BlackLivesMatter has impacted the cultural zeitgeist is that it has brought unprecedented attention to the way that the police can threaten the lives and liberty of people of color. It has placed into the (White) public eye a counternarrative to the dominant view that "the police are here to protect you".

One thing this could be doing is making more salient the prospect that threatening to call the police is a way for White people to specifically hurt Black people. It is a legitimate threat. Think of circumstances where people grope for ways to hurt others -- in an argument, in a dispute, or just when one is being an asshole. One of the reasons racial slurs are most likely to appear in situations like that is that they are a very quick way to wound someone one wants to wound. But -- perhaps paradoxically -- the rise in White associational awareness regarding the role of police as a danger to Black lives also makes it cognitively more available as a "move" one can pull when one is trying to dominate or terrorize the Black life standing in front of you.

I still think that most of the answer lies in column "a" -- this has always been happening, only now it's getting more exposure. But it wouldn't surprise me if there's a bit of column "b" in play as well. The counterreaction to BLM demonstrates that those deeply antagonistic to the claims Black people are making regarding the police nonetheless have absorbed -- through the mirror darkly -- the message regarding the danger the police pose to Black bodies. They just think that danger is justified and legitimately wielded. And if we're seeing that threat put out more explicitly nowadays, that might be part of the reason why.

No Qualified Immunity? For Prison Officials? In the 8th Circuit? What Is Happening?

First of all, if you're not reading Short Circuit (hosted on the Volokh Conspiracy blog), you're missing out. It's a great compendium of interesting circuit (and state appellate) court decisions, issued every week.

For example, this week we got Williams v. York, a deliberate indifference to medical needs claim brought by an Arkansas state prisoner. And -- get this -- the prison officials didn't get qualified immunity! If that sentence means nothing to you, you're most people. But if you have any familiarity with qualified immunity jurisprudence or prison litigation -- especially in the Eighth Circuit -- then it's jaw-dropping.

Williams benefited from drawing perhaps the best possible panel (Kelly, Arnold, and Smith). And he "benefited" because the facts really were shocking -- he experienced facial disfiguration, pus oozing from his gums, and mouth boils, all of which persisted for months after he first alerted prison officials to his condition and were obviously apparent even to laymen with no medical or dental training. In fact, Williams pulled out two of his own teeth before getting to see a dentist. Gross -- but also, powerful evidence.

So his case actually gets to proceed to trial. Congrats, Williams!

Also worth flagging is Rodriguez v. County of Los Angeles, a Ninth Circuit case involving sadistic beatings by prison guards of non-resisting inmates (the guards chanted the ritualistic "stop resisting!" while administering the beatings). The most interesting part is the officer's argument that the suit was barred because the prisoners failed to "exhaust administrative remedies" -- by which they mean, they failed to submit a complaint through the prison's internal review process. Generally that suffices to knock out a suit, but the court let it slide -- probably because the last time one of the inmates tried to file such a grievance he was put in the yard with rival gang members who somehow got their hands on razors and kicked the shit out of him.

Finally, McGirr v. Rehme tells a fascinating tale of a now-disbarred trial attorney whose been systematically shuffling his assets around to try and avoid a $42 million judgment granted to his own clients after he helped defraud them out of their settlement money. But here I think Short Circuit buried the lede -- the attorney in question is the husband of a federal district court judge! And, if footnote 9 is to be believed, several of the attorney's more "curious" transactions have been filtered through said wife.

Qualified Grader Roundup

I passed my qualifying exam last week, which is the last formal hurdle before I begin writing my dissertation. That's a weird sentence to write -- like talking about the last safety check before jumping out of an airplane, or the last underling to defeat before facing the Ultimate Final Boss Monster -- but it's where I am.

At the same time, my students' final exams are due today, so my immediate future is not as a writer but as a grader. And since it would be just catastrophic if anything distracted me from that essential task, I suppose it's time to clear some browser space.

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I wrote last week about alleged discrimination against Jewish chaplains in the army; now we get a different story about retaliation against a chaplain in the Air Force after he converted to Judaism.

This is the story of another immigrant we, the United States of America, effectively murdered in the most gruesome way possible (the penultimate part of the story -- before the death -- is an amputated penis) via a mixture of grotesque indifference to obvious medical need and complete lack of empathy.

UC-Berkeley releases its report on campus free speech issues. One interesting thing about it is that it is not really focused on questions law. Rather, it takes for granted that Berkeley is constrained in various ways by the First Amendment, and rather than dwelling on where those precise borders lie it tries to ask what practical steps the university can take -- consistent with those strictures -- to foster and maintain a healthy speech culture.

Also germane: Jeffrey Sachs has an interesting data set on instances of speech suppression on campus. Interestingly, there have been more successful terminations of left-of-center college professors for "bad" speech than conservative professors -- and while on its own that might be explained by different base rates, the big spike in left (but not right) firings from 2015 to 2017 can't be. The other interesting finding was that -- contrary to some narratives about the so-called "Palestine exception" to the First Amendment -- Israel issues were of comparatively minor importance. There were, depending on how you count Joy Karega (Oberlin) and Michael Chikindas (Rutgers), between three and five Israel-related terminations (or coerced resignations) over the data-collecting period (out of a total of 58). Of the unambiguous cases, two were for anti-Israel speech (Steven Salaita at Illinois and N. Bruce Duthu, who returned to the regular Dartmouth faculty from a deanship position due to backlash over his role in the NAISA BDS resolution), one was for pro-Israel/anti-BDS speech (Melissa Landa at the University of Maryland).

The mixture of deep hostility to divorce, openly male supremacist theology, and physical abuse is a toxic combination in the Southern Baptist church.

Speaking of toxic Protestants, a wing of the Presbyterian Church has published a follow-up to its notorious Zionism Unsettled document -- 110 pages on why Israel is the locus point of global colonialism and genocide (this sounds familiar....) through everything from eating hummus ("cultural genocide") to wanting to actually talk to people ("normalizing oppression"). This is the latest in a series of PCUSA highlights, including calls for all Jews to "come home to America" and my absolute favorite exhortation by a Christian minister on this issue: "Jesus wasn’t afraid to tell the Jews when they were wrong."

An interesting "This American Life" segment on an ill-fated Alabama field trip to see Schindler's List.

Two good pieces on police misconduct that I wanted to flag. One is by a Black police officer commenting on business trespass calls (like the Starbucks affair). The argument here is that when individuals call the cops against seemingly innocuous conduct, there is to some extent a fobbing off of responsibility to then say the police officers are the wrongdoers rather than the caller (cf. Colorado State). The other is in the Atlantic on how we might want to extend our narratives of police bravery or cowardice to cover instances where they whistleblow (or cover off) instances of violence, racism, or misconduct by their colleagues.

WPSA and Personal Troll Roundup

I presented my "White Jews: An Intersectional Approach" paper at the Western Political Science Association (intersectionality section) yesterday. It went quite well! I've now presented the paper to political theorists, to Jewish Studies folks, and to intersectionalists. If you haven't read it yet, I think it's pretty good.

But the prize for biggest professional accomplishment this week goes to the discovery that someone has created a website dedicated solely to informing the world that "David Schraub the UCLA Law Professor is a Disgusting Zionist Punk."  That's how you know you've made it. I may not have the highest quality trolls ("UCLA"?), but at least they're mine. (I can't say I recommend reading the entire screed on the website, but it's worth browsing for a few laughs).

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The African Muslim immigrant who saved a dozen Jews during the 2015 terrorist attack on a Paris kosher supermarket quietly arrived at the funeral of the elderly Holocaust survivor who was stabbed and burned to death in her apartment in an antisemitic hate crime. "I want to tell the Jews of France, you are not isolated. You are not abandoned. This is your country."

Jews and Muslims in America actually agree on quite a lot! And alignment increases alongside devoutness (more devout Jews and more devout Muslims share more in common), as well as contact (the more Jews and Muslims interact with each other, the more likely they are to perceive the two faiths as being similar in nature).

A former police officer turned criminal defense attorney discusses the Stephon Clark shooting, the way police are acculturated to fear (especially fear Black men), and the way poor instructions (e.g., "show me your hands" when your hands are holding a cellphone) can place innocent people in impossible situations.

Russian airline allegedly "deports" U.S. citizens of Indian descent back to India during a layover in Moscow. Great -- another reason for Trump to love the Russians.

Jewish News (UK) publishes an interview with Jeremy Corbyn. It's rare to see a conversation this long between two parties who so evidently loathe one another (it's really, really apparent in the interview).

Harvard Hillel is hosting a "liberation seder" focusing specifically on the ongoing injustices faced by Palestinians under occupation. The organizers worked closely with Jewish groups already affiliated with Hillel to ensure that it did not run afoul of the partnership guidelines. I'm all for this -- I have mixed feelings about the guidelines, but it's important to establish decisively that they will not be applied ad hoc to prohibit any criticism of Israel that's deemed too "sharp" in character. (Harvard Hillel has actually been consistently good on this issue -- refusing to allow the guidelines to metastasize to block, say, a program which has nothing to do with BDS because one participant backs the movement).

Sephardic Chief Rabbi in Israel may face criminal charges for likening a Black child born to White parents to a "monkey."