Qualified Immunity

Putting aside for the time being the unfortunately-labeled effort to “defund the police,” we should definitely consider other steps that might be taken to return a measure of accountability to the nation’s police departments.

We might begin by repealing–or at least significantly narrowing–the doctrine of Qualified Immunity.

A bit of background: 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.

As Ruth Marcus recently wrote in a column for the Washington Post,  that’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine dubbed “qualified immunity.” As the judge in one recent case has noted, it might just as well be called “absolute immunity.”

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.

A case from 1982, Harlow v. Fitzgerald 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, as one lawyer recently wrote, “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.’” As a post on Lawfare explained,

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 has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Her criticism– in an opinion which Justice Ruth Bader Ginsburg joined– pointed out that 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.”

It is past time for this doctrine to be dramatically limited. It is bad law and worse policy, and it insulates reckless police from the consequences of obviously wrongful behavior.

Health Policy Costs Us All

For more years than I can count, opponents of “socialized medicine” (i.e., single-payer, universal health insurance) justified that opposition by assuring us that we were “number One!” American healthcare was the best in the world, thanks to the innovation that was made possible by our refusal to extend that healthcare to everyone who needed it.

As the world got smaller, and more Americans traveled abroad, we began to realize that we really weren’t number one–that in fact, those global indices that ranked us somewhere around 37th or 39th were onto something.

More recently still, medical tourism became a thing (at least, pre-pandemic, when we weren’t shut out of healthier countries.) Americans are traveling to have procedures–and babies!–in places where the care is just as good or better, but much cheaper. 

There’s a reason so many reasonably well-educated, reasonably well-meaning middle-class Americans were so slow to recognize the gargantuan flaws in America’s patchwork approach to medical care–and for that matter, all social services. So long as we remain lucky and privileged, accessing health insurance through our employers, not getting a rare or terribly expensive disease, not having to navigate a system designed to say “not you,”  there’s simply no way we could imagine the experience of those who aren’t so lucky or privileged.

For years, I fell into that “lucky and privileged” category. But many years ago, when a diagnosis meant that my oldest son was unable to work, I encountered the Byzantine world of Social Security disability. At the time, it took two lawyers (me and my youngest son) and a friend who headed a social services agency to navigate the process.

When I asked my oldest’s then-doctor what happened to people without family lawyers and savvy friends, he said simply, “They die.” 

Just over a week ago, we got another lesson. My oldest grandson and his wife had a very premature baby. Born at just over 26 weeks, she is in the NICU, life-lined and hooked up to a tangle of machines and devices. My grandson and his wife take turns being with this much-desired little girl (and when I say “little,” she was one pound five ounces at birth, and about the size of my grandson’s hand.) The stress they are experiencing is etched on their faces.

In addition to the helplessness we feel watching this unfold, the whole family has worried about costs that their insurance won’t cover. If there is anything they don’t need,  especially right now, it’s thousands of dollars in out-of-pocket expenses. My granddaughter-in-law’s sister was so worried she set up a Go Fund Me page, something that wouldn’t be needed–or even comprehensible–in “socialized medicine” countries. (I have a son who lives in the Netherlands and an adult granddaughter who lives in England, and both sing the praises of their healthcare systems.)

We were relieved–and surprised– to learn that there are government programs that  provide at least some measure of secondary insurance in these situations. It’s just that no one in our (reasonably well-educated) family knew they existed until now. And I’d be willing to wager that, unless you are a social services or health insurance worker, those of you reading this haven’t heard of them either.

There is an important public policy lesson here–not to mention a lesson about equity.

This country spends far more than any other country in the world on medical care–twice as much per capita as the next most expensive country. (But hey–“We’re number 37!”)  That includes significant amounts on a patchwork of low-profile programs that help eligible people who manage to find out about them, and still more on the bureaucracy that serves as a “gateway” to those programs.

Think how much we could save if we replaced that haphazard patchwork of complicated and under-inclusive programs with some version of Medicare-for-All. Of course, a simple, single-payer health insurance system with a common and comprehensible “entry point” would serve all citizens, not just empowered ones–maybe that’s why we don’t have one.

There is some evidence that American voters are beginning to catch on.  In a recent column for the Washington Post, E.J. Dionne wrote:

No matter how hard they tried, Republican politicians and their allies could not stop Missouri’s voters from expanding access to Medicaid under the Affordable Care Act.
They tried to rig the timing of the referendum by forcing the vote during a relatively low-turnout primary on Tuesday rather than in November. That failed. They played on racial prejudice and nativism by falsely claiming a yes vote would mean “illegal immigrants flooding Missouri hospitals . . . while we pay for it!” That failed, too.
 
And so did Missouri this week become the sixth state since 2017 — five of them staunchly Republican — where voters took the decision on the expansion of health coverage out of the hands of recalcitrant conservative politicians.

You shouldn’t have to have a social work degree (or a friend with one) in order to access government insurance against calamity.

And Republicans should stop kidding themselves–calamities don’t just happen to “those people.”

 

 

 

 

 

1968?

As Americans have increasingly taken to the streets, not just to protest George Floyd’s murder, but also to protest overreach by the current, lawless administration, I’ve seen several articles comparing those demonstrations with the civil unrest that characterized the 1960s.

The consensus, I am happy to report, seems to be that we aren’t in Kansas anymore, Toto.

The Brookings Institution examined public opinion on race, and concluded–as the title of that report put it–“When it comes to opinions on race, it isn’t 1968 anymore.”

For one thing, there is very little disagreement about public reaction to the horrific video showing Floyd’s murder. According to survey research, only 2% of Americans believe that the use of force against him was justified, and 81% consider it unjustified. Fifty-seven percent believe it reflects a greater willingness on the part of police to use excessive force against Black people.

Furthermore,

76% of Americans now say that discrimination against racial and ethnic minorities in the United States is a “big problem,” including 57% of conservatives, 71% of whites, and 69% of whites without college degrees.  In addition, Americans have turned more pessimistic about progress toward racial equality. In 2014, the 50th anniversary of the Civil Rights Act, 79% of Americans saw gains in the fight to end racial discrimination, compared to just 56% today.

Attitudes about protests have similarly evolved. Americans overwhelmingly say that peaceful protests are a justifiable response to police misconduct, and they also believe that police have over-reacted and used excessive and unjustifiable force against peaceful protesters. A whopping two-thirds blame “other people”– not the protesters themselves– for the outbreaks of violence, which they do condemn.

The bottom line: it’s not 1968 anymore. A large share of white Americans now endorse views on race relations once confined largely to African Americans. While Americans of all parties and races continue to oppose violent protests, appeals to “law and order” not balanced with the recognition of deep injustice lack the resonance of half a century ago. This helps explain why barely one-third of Americans support President Trump’s handling of race relations—and why 53% of Americans say that relations have gotten worse on his watch.

In June, Todd Gitlin took a slightly different approach in a column for the Washington Post, comparing today’s protests to 1969 rather than 1968. Gitlin acknowledged that “When windows are smashed, shops go up in flames, looters ransack and police open fire, the collective psyche automatically clicks over to 1968 ,” but he went on to argue that the current anger has more in common with the (far more effective) anti-war demonstrations of 1969.

The issue was different from today’s, but the ecumenical spirit, the resolve and the conviction about the need for a new political start were similar. Then as now, the rallies expressed both solidarity and self-interest. In 1969, with the draft in force, many in the Moratorium crowds had a huge personal stake, though many did not. Today, black protesters have the most obvious stakes, but whites in the far-flung crowds, under a broad range of leaders, are also moved selflessly and morally.

I remember the upheaval of the 60s, and I especially remember the attitudes of my own middle-class, White, “proper” cohort–attitudes that were definitely not sympathetic to the “rabble” that was disturbing their complacency. But looking back, it’s hard to deny that both the riots and the anti-war protests changed America.

Historians tell us that the upheaval of the 1960s integrated universities, spurred the passage of the Civil Rights Act and the Voting Rights Act, put black faces on TV shows other than sports, and provided a blueprint that would be followed by women, LGBTQ Americans and other oppressed groups.

America is a much fairer country as a result of that upheaval.

Of course, making additional places at the civic table continues to upset people who experience equality for others as a diminution of their own status. A columnist for CNN repeated a story that continues to be both explanatory and relevant:

As Hodding Carter put it to historian Arthur Schlesinger, when Schlesinger asked why Southern white men hated Bill Clinton so much, “They look back with longing at the good old days — the days when abortion was in the back alley, gays were in the closet, women were in the kitchen, blacks were in the back of the bus, and condoms were under the counter.”

Progress doesn’t come without disruption–and not everyone applauds when it comes.

European Media Saying What American Media Won’t

In April of this year, I stumbled upon a publication called Euronews, and read the following lede from one of its “viewpoint” articles:

There has only been one headline worth printing since Donald Trump was elected president. That headline is “Donald Trump suffers from a dangerous incurable narcissistic disorder which makes him incapable of empathy and reason. He is a grave danger to the US and the world.”

Instead of stating this disturbing fact, the evidence for which is voluminous, the mainstream media have over the last three years led America down the rabbit holes of normalising him and trying to understand him as you would a psychologically healthy human being. But Donald Trump is not a psychologically healthy human being and reporting on him as if he were, empowers him and disempowers people of reason. Acknowledging his pathology is fundamental to reversing this imbalance.

The article made the point that an understanding of Trump’s “dangerously disordered mind” requires “joining the dots” between what the article identified as his narcissism, his paranoia and his incapacity to accept reality. The author went on to detail the symptoms of  each of those disorders and the elements of Trump’s behavior that “fit” the diagnoses.

In all fairness, there has been significant media emphasis in the U.S. on Trump’s malignant narcissism–but I will admit there has been less attention paid to the diagnosis of paranoia. And when we do start to connect–or “join”–the dots, it’s a pretty convincing one, and especially relevant to his horrendous approach to international relations.

Acute paranoia is characterised by a worldview in which other people are not only inherently untrustworthy, but also “out to get” the paranoid individual. Connecting those dots explains some otherwise confounding foreign policy behaviors:

Trump’s major foreign policy stances are consistent with such extreme paranoia. Trump’s attacks on membership organisations, such as NATO and the European Union, reflect a paranoid conviction that such alliances cannot be trusted and will serve only to rip off the United States, a view he has expressed repeatedly. Trump’s affinity for violent authoritarian leaders is also consistent with the interpretation that they are more in tune with Trump’s own narcissistic and paranoid worldview, than the “weak” leaders of America’s major democratic allies.

According to this analysis, Trump’s psychopathology simply doesn’t allow intelligence information incompatible with his worldview to be processed. Lacking the ability to fact-check the intelligence provided to him–or for that matter, to recognize or fact-check the reality within which he resides– he fills that space with “fact-free conspiracies that fit with his emotional needs.”

The author’s conclusion is depressing–and undoubtedly quite accurate:

For those looking to November’s election as the safety stop that will secure all our futures, Irish journalist and author Fintan O’Tooles has issued a prescient warning: “As the cost of [Trump’s] terrible failures of public duty and common decency becomes ever more starkly evident, he will revert in his re-election campaign to an explanation of the [COVID-19] disaster, not as a consequence of his own incompetence and contempt but as a punishment inflicted on the United States for its failure to build his wall, keep out foreigners, and crush the enemy within. Like a medieval quack making a profit in times of plague, he will offer a stricken people an ever-higher dose of a toxic cure.”

It is long past time to acknowledge the truth that has been staring us in the face all along – Donald Trump is clearly mentally disordered and poses a grave danger to us all.

The interval between now and January 21st will be incredibly dangerous. And in the absence of any discernible Republican integrity, I have no idea what we can do about it.

 

The Threat Of Ambiguity

Comments to previous posts to this blog have focused on the role played by religion in the polarization that characterizes today’s America. I’d like to put a slightly different “spin” on that conversation.

As Len Farber noted, it is unfair to lump all religions together–there is, as my youngest son has noted, a great deal of difference between religions that help adherents wrestle with the “big questions” of life and those that dictate an infallible answer. That difference extends beyond the worldviews we label “religion.” Back in the days of the communist USSR, it was often remarked that communism was a religion of sorts, and that observation can be enlarged to include pretty much all rigid belief systems.

Which brings me to one of those “there are two kinds of people” generalizations. (Obviously, a dangerous overstatement, but bear with me…)

We live in a world that can seem incomprehensible; confronting our complicated reality can range from exciting to intimidating to extremely frightening. Most of us (I hope, at least, that it’s most of us) muddle through, recognizing and coming to terms with our human limitations and making what sense we can of a complex world. But for a not-insignificant number of our fellow humans, keeping oneself open to change, to reconsideration–a necessary attribute of living with ambiguity– is intolerable. Shades of gray are terrifying. Such people are desperate for bright lines, clear rules–for certainty.

Enter some–not all–religions and other belief systems, including conspiracy theories that “explain” the inexplicable and bring clarity to messy reality.

If you are an older white male in today’s America, you were probably born into a society that promised you a future in which you would be a part of the dominant caste, a future in which you wouldn’t have to compete with–or share importance with– uppity women and minorities. That future didn’t unfold as promised. It’s understandable that you might want someone to blame for the social changes that cost you the reality you had the right to expect.

It was probably the fault of the “libs” or the “femi-nazis” or Blacks, or maybe the immigrants from “shit-hole” countries.

As I have tried to understand how any mentally-competent American could look at Donald Trump and see someone who belongs in the Oval Office, I have become convinced that an inability to cope with the ambiguities of modern life explains a lot.

There is, of course, a lot of research telling us that “racial resentment” is the most prominent predictor of support for Trump. There is also ample research suggesting that feelings of inadequacy and fearfulness–characteristics of an inability to cope with the ambiguities of life–are predictors of “racial resentment.”

Cristina Bicchieri is a professor of philosophy and psychology at the University of Pennsylvania and the lead author of a paper with the intriguing–if somewhat challenging/incomprehensible– title, “It’s Not a Lie If You Believe the Norm Does Not Apply: Conditional Norm-Following with Strategic Beliefs.”

In a discussion with Thomas Edsall, Bicchieri attributed one of Trump’s strengths to the fact that “people hate ambiguity,” and if there is one thing Trump is not, it’s ambiguous. “Trump’s ability to convey conviction, even when saying things that are demonstrably false, is critically important in persuading supporters to believe and vote for him.”

There’s an old saying “It isn’t what you don’t know that hurts you; it’s what you know that ‘just ain’t so.'” Too many Americans prefer to cling to certainties–theological, ideological or conspiratorial– that “just ain’t so.”

I think it was Bertrand Russell who said, “What men want is not knowledge, but certainty.”