No Good Deed Goes Unpunished

Well, it appears I’ve missed an intriguing element of those abysmal “ad wars” being waged among candidates for the Republican gubernatorial nomination.

Apparently, Eric Doden’s most recent weird ad–in which he highlights his support for qualified immunity (and anything police might ever do) is based upon the only position Braun took during his six years as a Senator with which I actually agree–he sponsored a bill that would narrow the application of that doctrine. In the current primary contest, that’s a vulnerability.

What’s that old saying? No good deed goes unpunished.

I’ve addressed qualified immunity previously. To recap: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

That’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine it dubbed “qualified immunity.” As a judge in one case noted, it might just as well be called “absolute immunity.” Ruth Marcus explained it in a Washngton Post article a few years ago:

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

In 1982, in a case called Harlow v. Fitzgerald, the Court established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, the first person to litigate a specific harm is out of luck, since the “first time around, the right violated won’t be ‘clearly established.’” A post on Lawfare gave an example.

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” The doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

One legal scholar has characterized the doctrine as a “through-the-looking-glass” example of jurisprudence that doesn’t simply excuse police violations of constitutional rights, doesn’t just grant police an exception to the axiom that “ignorance of the law is no excuse,” but that actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

I will admit to surprise–shock, really–that Braun understood the pernicious effects of this judge-made doctrine, and the way it encourages reckless police behavior. It is beyond ironic that his one bit of sensible behavior has become his biggest vulnerability in this primary. 

But no problem! His recent ads–showing slavish support for police and “law and order”– confirm that Braun is always about politics and never about integrity.

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Crime And Politics

In Indianapolis, municipal elections are held during otherwise “off” political years. Last year we were treated to an effort by  Jefferson Shreve, a rich Republican, to win the Mayor’s office. His campaign ads leaned heavily on assertions that our city was crime-ridden; given the Democratic tilt of the city electorate, the ads did make visible efforts to veil their more racist elements.

Despite spending $13 million dollars of his own money, Shreve failed to exceed the GOP’s base vote, so this year, he’s running for Congress. It’s a barely-purple district, and his television ads are much more explicitly “anti-woke.” Like most Republicans running for office this year, he’s clearly counting on anti-immigrant bias and an entirely bogus insistence that immigrants are the source of an (equally-bogus) American crime wave. 

He’s not alone in that dishonesty.

 NBC recently deconstructed Trump’s assertions of immigrant-fueled crime, reviewing expert analysis and available data from major-city police departments that show zero evidence of a migrant-driven crime wave in the United States. To the contrary, available data shows overall crime levels dropping in cities that have received the most migrants.  See also, Scientific American, (12/7/20) Undocumented Immigrants Are Half as Likely to Be Arrested for Violent Crimes as U.S.-Born Citizens.

When you think about it, it makes sense that people who are undocumented would want to keep a very low profile, in order to avoid deportation.

Another analysis of the available data confirms both the bogus nature of these claims and the political motivation for raising them.

The Republican Party wanted to run a 2024 election campaign on inflation and the economy. That made some sense in June 2022, when inflation was at a 40-year high of 9.1 percent. But now inflation has fallen to 3.1 percent, and unemployment has been below 4 percent for 24 months. Banging on about prices and the economy no longer seems like a winning strategy.

So the GOP has pivoted back to its standard tactics: fear-mongering, scapegoating, and bigotry.

Fox News is no longer talking about high prices 24/7. It now apparently believes the central problem of our day is … immigrant crime.

Public Notice publisher Aaron Rupar counted 27 mentions of “migrant crime” on Wednesday alone across Fox News and Fox Business. “Migrant Crime Sparks New Outrage Across US” one chyron screamed; the segment included giant mugshots of immigrant Latino men accused of crimes. Hosts hit President Biden for not discussing “migrant crime” during a speech he gave that day.

“It’s difficult to convince Americans that they are safe or becoming safer when they do not feel safe in this nation,” John Roberts proclaimed.

Americans don’t feel safe because Republican candidates constantly lie to them about their safety. These candidates have concluded that the only way they can win is by playing on racism and fear of crime–by creating a moral panic. There is absolutely no data supporting their accusations.

A 2020 Cato study of Texas found that for native-born Americans, conviction rates were 1,422 per 100,000. For undocumented immigrants, the rate was much lower — only 782 per 100,000.  And for legal immigrants, the rate was 535 per 100,000. Cato found that immigrants were less likely to commit violent crimes, property crimes, homicides, and sexual assaults than people born in the United States.

A 2023 Stanford study found similar results when it looked at imprisonment rates going back to 1830. Immigrants have basically always been imprisoned at lower rates; today, they are 60 percent less likely to be incarcerated than people born in the US. That’s in part because Black people are disproportionately targeted by the criminal justice system. But even if you just look at the incarceration rates of white people born in the US, immigrants are imprisoned 30 percent less.

Migrant crime is much less of a problem than crime by native-born people. But even native-born Americans are committing fewer crimes; crime rates overall are down.

Murder rates in 2023 fell by more than 12 percent from 2022, among the biggest recorded drops. Other violent crimes also decreased. Retailers claimed that there was a huge increase in shoplifting in the last few years — but that turns out to have been almost entirely a myth

As the linked article notes, GOP rhetoric may not be based in fact, but it does have (an unsavory) basis in demagoguery and racism. Linking marginalized groups to crime to build power and justify violence is, unfortunately, nothing new.

Of course, migrants do commit some crimes. In a country with some 45 million immigrants, it’s easy to find a handful of mugshots to put on your screen. But the scare tactic is nonetheless a scare tactic; there is not a sweeping crime wave perpetrated by immigrants. To say otherwise is a lie.

The GOP’s recent refusal to pass a border control measure that gave them virtually everything they’d demanded so that they can run on the issue really gives the game away.

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Some Soothing Figures

Among the Substack newsletters I regularly receive are those from Heather Cox Richardson–whom I often quote– and Robert Hubbell. One of Hubbell’s recent missives contained some very welcome information and analysis.

Hubbell began with his frequent admonition that Democrats should be confident, but definitely not complacent–that we will need to work hard to turn out every anti-MAGA voter in November. But that said, he made two very important–and comforting–points:

Trump is running his campaign as an incumbent president. He has accomplished a hostile takeover of the Republican Party apparatus. He has threatened to banish any Republican who supports or donates to his opponents. Under those circumstances, anything less than a Soviet-style win of 100% is a failure.

So, against that backdrop, Trump’s loss of 40% of the vote in the South Carolina primary is devastating. It is particularly bad because he lost 40% in a state that is more favorable to him than almost any state in the union—because of its strong presence of white, older, evangelical voters (60% of voters are white evangelical or born-again Christians). Losing 40% of the vote under those circumstances should send shockwaves through the Republican establishment.

As Hubbell quoted Axios:

If America were dominated by old, white, election-denying Christians who didn’t go to college, former President Trump would win the general election in as big of a landslide as his sweep of the first four GOP contests.

It’s not. That’s why some top Republicans are worried about the general election in November, despite Trump’s back-to-back-to-back-to-back wins in Iowa, New Hampshire, Nevada and South Carolina.

Or, as Josh Marshall of Talking Points Memo put it, Face It: This is a Weak Showing for Trump in South Carolina.

It is not merely that Trump lost 40% of the vote. It is also that 50% of those voters said they would not vote for Trump if he became the nominee—which translates into 25% of Republicans who will not vote for Trump!

One quibble: it translates into 25% of the Republicans who went to the polls in the primary who will not vote for Trump in the General. Some of those voters will stay home in November, but that percentage probably is also predictive of the percentage who didn’t vote in the primary but who will vote in the General.

Hubbell’s most reassuring–and eye-opening– analysis, however, was his discussion of contemporary polling, and its demonstrable bias.

Polls do not “predict” outcomes of races; rather, they predict ranges of outcomes at different levels of confidence. But on average and over time, polls should cluster around the actual outcomes. That is not happening with polling regarding Trump.

Instead, the polling averages have consistently overstated Trump’s support—something the media and pollsters have ignored or excused. At some point, they should simply admit that their polling models are broken and overstate support for Trump.

Adam Carlson posted the following on Twitter, comparing Trump’s average margin of victory predicted by 538.com versus the actual margin of victory by which Trump won the first three GOP primaries:

In Iowa:

  • Final 538.com Average: Trump +37
  • Final Result: Trump +30

In New Hampshire:

  • Final 538.com Average: Trump +18
  • Final Result: Trump +11

In South Carolina:

  • Final 538.com Average: Trump +28
  • Final Result: Trump +20

Notice a pattern? The average of 538.com’s polls overstated Trump’s support by at least 7 percentage points in three primaries.

I will add that 538.com is probably the most credible of all the polling sites.

Since Hubbell’s post, Michigan held its primary, and the trend held. Trump won by roughly 42 points; the final 538 polling average had him winning by 57 points, an underperformance of some 15 points.

Hubbell is undoubtedly correct when he says that when polls show a consistent bias, there is likely to be a flaw in the methodology that warrants skepticism. Here, that flaw consistently overstates Trump’s support. As he concludes,

My point is that we should ignore the polls. We should not delude ourselves, but neither should we trust polls that consistently overstate Trump’s support. Just keep working hard and ignore the uncritical, breathless reporting about polls that have shown consistent bias in favor of Trump.

I share these little rays of sunshine to remind you–and remind myself–that the future will be what we make it. Nothing is certain–certainly not the polls.

As unsettling as it is, we live in a time where there simply are no comforting political verities, no outcomes we can confidently predict. Polls are inaccurate, artificial intelligence is creating misleading messages, media fragmentation and online propaganda encourage confirmation bias…The list goes on.

We need to “power through” this very confusing environment, separating wheat from chaff to the extent possible. We also need to reassure ourselves that, since most Americans are sane, we need to GET OUT THE VOTE.

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When People Tell You Who They Are, Believe Them

There is a famous Maya Angelou quote: “When people show you who they are, believe them.”

Voters unwilling to recognize that American democracy will be on the ballot in the upcoming election will need to ignore or reject what the proponents of theocracy and autocracy are willingly telling us. 

Heather Cox Richardson recently reported on the candor of a speech at this year’s CPAC convention.

How religion and authoritarianism have come together in modern America was on display Thursday, when right-wing activist Jack Posobiec opened this weekend’s conference of the Conservative Political Action Conference (CPAC) outside Washington, D.C., with the words: “Welcome to the end of democracy. We are here to overthrow it completely. We didn’t get all the way there on January 6, but we will endeavor to get rid of it and replace it with this right here.” He held up a cross necklace and continued: “After we burn that swamp to the ground, we will establish the new American republic on its ashes, and our first order of business will be righteous retribution for those who betrayed America.”

If there was any doubt that today’s Republican Party has rejected the (small-d) democratic basis of America’s republic, the party’s unrelenting attacks on reproductive rights should be convincing evidence. Not satisfied with Dobbs‘ erasure of the constitutional right to abortion, the party’s theocratic base is now gunning for birth control. The recent Alabama decision that effectively outlawed IVF rested on a state law conferring “personhood” on fertilized eggs. Since Dobbs, sixteen state legislatures have introduced such laws, and four Red states—Missouri, Georgia, Alabama, and Arizona–have passed them.

The cranks and Christian Nationalists who dominate the party in the House of Representatives introduced a national personhood bill immediately after they took control in January 2023. Republicans in the Senate were already on board; Rand Paul had introduced a “Life at Conception Act” on January 28, 2021. Richardson tells us it currently has 18 co-sponsors, including the head of the National Republican Senatorial Committee. These lawmakers surely know that these measures are opposed by huge majorities of the voting public; a party that valued either democratic representation or constitutional compliance would not be intent upon passing them.

There are multiple other examples: members of the GOP have demonstrated their willingness to accept and promote Russian disinformation, and to take Putin’s side against Ukraine– behavior inconsistent with the majority’s desire to help Ukraine fend off Russian aggression. And the GOP’s embrace of gerrymandering is also entirely consistent with its devotion to the “end of democracy.” Gerrymandering, after all, is an effort to evade democratic accountability.

If these examples aren’t sufficient, there’s the “show and tell” from Trump himself. As Axios (among others) has reported, in an introduction to a series on the effort,

Former President Trump’s top allies are preparing to radically reshape the federal government if he is re-elected, purging potentially thousands of civil servants and filling career posts with loyalists to him and his “America First” ideology, people involved in the discussions tell Axios.

The impact could go well beyond typical conservative targets such as the Environmental Protection Agency and the Internal Revenue Service. Trump allies are working on plans that would potentially strip layers at the Justice Department — including the FBI, and reaching into national security, intelligence, the State Department and the Pentagon, sources close to the former president say.

During his presidency, Trump often complained about what he called “the deep state.”

The heart of the plan is derived from an executive order known as “Schedule F,” developed and refined in secret over most of the second half of Trump’s term and launched 13 days before the 2020 election.

The reporting for this series draws on extensive interviews over a period of more than three months with more than two dozen people close to the former president, and others who have firsthand knowledge of the work underway to prepare for a potential second term. Most spoke on condition of anonymity to describe sensitive planning and avoid Trump’s ire.

People voting in November can’t say they weren’t warned. 

The Republican Party of today is Trump’s party, and multiple sources are plainly and forcefully telling us who they are. It is not an exaggeration to say that the fate of America going forward rests on enough voters’ listening to them and understanding what they are saying. 

Accept Maya Angelou’s advice. Believe them.

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OK–Let’s Talk About Immigration Again

Among the many things that set my hair on fire these days is the national “discussion” of immigration. I put quotation marks around the word discussion because there is virtually nothing about the use of immigration as a wedge issue that resembles a calm, fact-based discussion or debate. As David Brooks once wrote, the only people who have less actual data on their side than the anti-immigration folks are the people who deny climate change.

If anyone harbors doubts about the entirely political approach to what the media routinely calls the “border crisis,” it should have been dispelled when the GOP abruptly walked away from a bipartisan proposal that–after difficult negotiations–had given Republicans pretty much everything they’d been demanding, so they could use the “border crisis” as a campaign issue.

What has gotten lost in this deeply-dishonest politicization of the issue is the importance of immigration to the American economy. A reader recently shared a report from the Economic Policy Institute, listing six reasons that immigration isn’t hurting American workers–and explaining why immigrants are a vital part of America’s workforce.

What are the facts?

Immigrants make up about 14% of the U.S. population; some 43 million people. Together with their children, they are about 27% of us. Approximately 11 million are undocumented, and most do not come via the southern border; individuals who have flown in and overstayed their visas vastly outnumber those who cross the border illegally. 

Immigrants made up 17% of the U.S. workforce in 2014, and two-thirds of those were here legally. Collectively, they were 45% of domestic workers, 36% of manufacturing workers, and 33% of agricultural workers. Those percentages help to explain why state-level efforts to curb immigration have come back to bite them: in Alabama a few years ago, the state passed a draconian law targeting immigrants, and crops rotted in the fields. Farmers couldn’t find native-born residents willing to do the work, despite offering to pay more than minimum wage.

What about those repeated claims that immigrants are a drain on the economy? The data unequivocally shows otherwise. Undocumented immigrants pay billions of dollars into Social Security for benefits they will never receive. These are people working on faked social security cards; employers deduct the social security payments and send them to the government, but because the numbers aren’t connected to actual accounts, the workers can never access their contributions. The Social Security system has grown increasingly—and dangerously– reliant on that revenue; in 2010, the system’s chief actuary estimated that undocumented immigrants contributed roughly 12 billion dollars to the program.

The Institute on Taxation and Economic Policy estimates that approximately half of undocumented workers pay income taxes, and all of them pay sales and property taxes. In 2010, those state and local taxes amounted to approximately 10.6 billion dollars.

By far the most significant impact of immigration, however, has been on innovation and economic growth. The Partnership for a New American Economy issued a research report in 2010: researchers found that more than 40% of Fortune 500 companies had been founded by immigrants or their children. Collectively, companies founded by immigrants and their children employed more than 10 million people worldwide; and the revenue they generated was greater than the GDP of every country in the world except the U.S., China and Japan.

The names of those companies are familiar to most of us: Intel, EBay, Google, Tesla, Apple, You Tube, Pay Pal, Yahoo, Nordstrom, Comcast, Proctor and Gamble, Elizabeth Arden, Huffington Post. A 2012 report found that immigrants are more than twice as likely to start a business as native-born Americans. As of 2011, one in ten Americans was employed by an immigrant-run business.

On economic grounds alone, then, we should welcome immigrants. But not only do we threaten undocumented persons, we make it incredibly difficult to come here legally. If there is one fact that everyone admits, it is the need to reform a totally dysfunctional and inhumane immigration system. Based upon logic and the national interest, it’s hard to understand why Congress has been unwilling or unable to do that. Of course, logic and concern for the national interest have been missing from Washington for some time. 

The GOP’s anti-immigrant hysteria is part and parcel of its White Christian Nationalism. Granted, there has always been a nativist streak in America; Ellis Island was first established to keep “undesirables” from entering the country. “Give me your tired, your poor, your masses yearning to breathe free”– was Emma Lazarus’ response to the Chinese Exclusion Act. The Know-Nothing Party was formed largely by people who feared that Irish Catholic immigrants would take jobs from God-fearing Protestant “real Americans.”

The current eruption of that old bigotry gives new meaning to that old expression about cutting off your nose to spite your face…

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