Thursday, May 28, 2020

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.

Sunday, May 24, 2020

Albert Memmi (1920 - 2020)

Albert Memmi, the great Tunisian-Jewish anti-colonial writer and theorist, has passed away at age 99.

Late last year, a friend and I had the early sketches of a plan to host a conference in honor of Memmi's 100th birthday (at the time, the most common response to this idea was for people to exclaim "he's still alive?"). That was put on brakes after the coronavirus hit, but there's no question Memmi remains worthy of study and (now) memorialization.

Albert Memmi was born in Tunis in 1920. In his early life he was involved in socialist youth movements, and during the Nazi occupation of Tunisia he was interned in a slave labor camp (from which he escaped). After the war, he became one of the leading intellectual lights of the movement to free Tunisia from French colonization. What Fanon was to Algeira, Memmi was to Tunisia, and for many years Memmi's book The Colonizer and the Colonized was read alongside Fanon's The Wretched of the Earth as cornerstone texts of decolonial theory. That is much less true today, possibly because Memmi's later work was more conservative, possibly because Memmi was emphatic throughout his career that he viewed Zionism as the decolonization movement of the Jews.

Unfortunately, following independence Memmi found that Tunisia had little place for Jews, and he exiled himself to France where he spent the remainder of his life. He wrote a trilogy of books -- Portrait of a Jew, Liberation of the Jew, and Jews and Arabs -- which have been widely overlooked but which I think are each superb explorations of the Jewish condition that continue to resonate to this day (many excerpts from these books have been featured on this blog). He continued to write prolifically, culminating in a follow-up to The Colonizer and the Colonized titled Decolonization and the Decolonized in 2006. This book was controversial, as Memmi evinced a marked conservative turn, and there are parts of it that made me wince as a reader. But that does not mean it is not worth reading, as is the broader corpus of Memmi's amazing life's works.

While Fanon famously died extremely young, Memmi's career as a writer spanned well over a half-century, witnessing tremendous revolutions in his homeland and in the disciplinary areas he wrote upon. Hence, I've sometimes described Memmi as the version of Fanon who got to watch the decolonization story actually unfold. By itself, that makes him a fascinating character. But Memmi deserved to be read and praised in his own right, not simply as a shadow of Fanon.

May his memory be a blessing.