All right, y'all, welcome to the Scott Horton Show.
I am the Director of the Libertarian Institute, Editorial Director of Antiwar.com, author of the book Fool's Errand, Time to End the War in Afghanistan, and I've recorded more than 5,000 interviews going back to 2003, all of which are available at scotthorton.org.
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All right, you guys on the line.
I've got Patrick Giacomo from the Institute for Justice, and this is such an important story here.
Police stole $255,000 in cash and coins, and the court said, okay.
Welcome to the show.
How are you?
Great.
Thanks for having me, Scott.
Very happy to have you here.
And so this is not just a case of Joe Biden's civil forfeiture program in effect against innocent people.
It's even worse than that.
Is that right?
Yeah, this is an entirely separate thing from civil forfeiture, which is another issue that I.J. does quite a bit of litigation on.
But this was done through a doctrine called qualified immunity, which was cooked up in 1982 by the U.S. Supreme Court as a way to shield government actors from constitutional accountability.
And so, but it started out as a case of civil forfeiture, right?
Or under the color of civil forfeiture?
So actually, the story was the Fresno police decided that these two businessmen might be running an illegal gambling operation.
So they got a search warrant to seize a bunch of stuff, including cash.
And they raided these guys' house and business.
They were running an ATM business, so they had a bunch of cash on hand.
Oh, I see.
So it wasn't so much forfeiture as just taking the money in the name of evidence to go put in the locker for later.
That's right.
So the disconnect here is the go put it in the locker for later piece, because the two men accounted for what the police had taken.
And they said the police took $275,000 in cash and rare coins, but the police only recorded having taken $50,000 in cash.
And so there's $225,000 that went missing.
And ultimately, the Fresno police never brought any criminal charges against these guys.
So they filed a civil rights lawsuit against the police who took the money and said, hey, when you came into our houses and business and stole money from us, that was unreasonable.
And it was an unreasonable seizure under the Fourth Amendment of the U.S. Constitution.
And so you have to pay us damages.
And that makes a lot of sense to everybody.
I don't think you'll find anyone who thinks that it would be reasonable to steal money from someone, let alone who thinks it would be reasonable for a police officer to steal money.
But the problem is that when you bring a constitutional claim against a government official, the court will apply this concept of qualified immunity.
And what it means is that you can't sue a government official for violating your constitutional rights unless there's already a decision in that jurisdiction that says the specific thing they did is unconstitutional.
And so that's causing havoc all over the place in every kind of constitutional claim you can think of.
But it's particularly pernicious in cases like this where the accused actions are so egregious that, of course, there's no case in the Ninth Circuit that says specifically if police steal your money, that's an unreasonable seizure under the Fourth Amendment.
But because there's no such decision, the courts apply this concept and throw the whole case out.
But isn't that a giant case of question begging and catch 22 and all that because of the fact of the qualified immunity means there can't be a case because the case would have been thrown out before, too.
Yeah.
So that you're hitting the nail right on the head.
And so until about 15 years ago, at least courts had to take a situation and decide whether there was a constitutional violation.
If there was, they moved to the second step of the analysis and said, OK, was this or wasn't this clearly established?
And if it wasn't clearly established, they have to apply qualified immunity.
But going forward, that case would stand for the proposition that the specific actions were unconstitutional.
But then the Supreme Court said, actually, courts can skip the first step and go straight to the second step, which now is the world we live in, where there is a catch 22.
And so technically speaking, in the Ninth Circuit, police can go steal money and say, we still are entitled to qualified immunity because this decision in the Jessup case didn't address whether taking money was a violation of the Fourth Amendment.
So we were not on notice of it being a violation and therefore we're entitled to qualified immunity again.
How convenient for them.
And we see this all the time and more particularly, we usually hear about this.
Well, I'm confused, honestly, about the doctrine of sovereign immunity versus qualified immunity.
I guess I had thought sovereign immunity meant you can't sue them and qualified immunity meant they can't be prosecuted.
But apparently I'm confused.
Well, I can run you through a brief history of of how we got to this point.
So I start to start with the time when Charles, the first said, I have sovereign immunity and they cut his head off.
I guess I could start a little ways after that.
By by the time of the American founding, even British courts had actually taken the the legal maxim, the king can do no wrong, and use that to apply liability to people who did wrong in the name of the king.
And so the logic there was for people like Blackstone was the king can do no wrong.
So if some wrong was done in the king's name, obviously the person who did the wrong was bad and you can hold them accountable and damages in a British court.
And so that was well established at the time of the founding.
And we obviously took that and ran with it and went much further with it than that.
And so at the time of the founding, up through the middle of the 20th century, essentially courts in America would apply strict liability if someone violated your rights in the name of the government.
And so the way that sovereign immunity interacts with that is.
You can't sue the sovereign, which is officially you can't sue the United States or the state of Michigan or Virginia or whatever, unless they consent to being sued.
But who you can sue is an officer who's doing the business of the United States or the state of Michigan or Virginia.
And so historically, one of the two main reasons why the Supreme Court and courts across the country allowed people to sue government officials who violated their rights was so that the rights could still be adjudicated since you were not allowed to sue the state.
So help me out with this.
I learned it, but maybe it's wrong and it's certainly archaic either way, even though it says in the plain language of the First Amendment that the people have the right to petition their government for a redress of grievances.
And my understanding is that at the time that that was written, that clearly meant to sue them rather than to sign your name on a worthless piece of paper begging them, please.
Could you clarify that?
Yeah.
And that's absolutely the case.
And it was it was even broader than that, because it wasn't just the right to sue them.
It was the right to bring complaints to them directly.
And they couldn't retaliate against you for doing it.
And so and so now we live in this regime.
And that was supposed to be as sacrosanct as my right to choose which church I go to or not.
Sure.
Well, the whole concept of of you being able to actually enforce your constitutional rights is shockingly fragile in the modern age.
And so technically, the way it works is a situation like this, where the the bad actors were police in the state of California.
When you bring these causes of action, you're not actually suing them directly under the Constitution.
You're suing them through a statute called Section 1983 that was passed after the Civil War in 1871.
And in that statute, Congress gave people the right, supposedly they needed to do that, to sue people who violated their rights under color of state law.
And if these guys were federal officers, you'd be suing them under a whole different doctrine called Bivens.
And the Supreme Court is gotten growingly aggressive towards restricting Bivens.
So it's getting harder and harder to sue federal officers, but you still can sue state officers.
But yeah, the bottom line is now we're kind of living in this world where the Constitution gives you rights, but the court is looking to some sort of permission slip from Congress before it's willing to let you enforce those rights against government actors who violate them.
And then in practice, this means a license for government employees to simply be criminals, to steal, to murder innocent citizens, and to get nothing more than two weeks paid vacation for it.
Right.
It's really remarkable because, like I said, you had this strict liability standard.
It was applied uniformly until the middle of the 20th century, at which point the court carved out a big exception in 1967.
But then in 1982, it created qualified immunity, which took the standard and reversed it and said, you can't hold this officer liable unless you can show that what he did was clearly established.
And more than that, you can't just say it's clearly established that someone can't unreasonably seize my property.
You have to be able to show particularized facts that another court has already said that how they did what they did was unconstitutional.
And so you see that with cops, oftentimes you see that with excessive force cases, all sorts of search and seizure cases, occasionally First Amendment cases, Eighth Amendment cases.
And so after that, the court has kind of ratcheted at every step how difficult it is for you to establish whether there's a case on point.
And so for instance, there was a case in the last year from the Sixth Circuit where some cops let their canine bite a suspect who had given up by sitting on the ground and put his hands up.
And he sued and said that that was excessive force.
And he cited the case from the Sixth Circuit where cops had let their dog bite a guy who'd given up by laying on the ground and putting his arms to the side.
And the Sixth Circuit said, that's not close enough.
It's not particularized facts close enough to have given the officers fair notice that what they did was unconstitutional.
So those officers are entitled to qualified immunity.
So it sounds like you're going right up to the point of saying the only solution here is to burn these judges' houses down and hang them from trees.
And so that the next people to occupy the Sixth Circuit will make better decisions.
Because there's nothing else that people can do to provide accountability here.
I think the better, the much better and more practical solution is what we are doing, which is advocating for the court to do away with the qualified immunity doctrine entirely.
But they're not going to do that, are they?
Well, it's, I mean, it's impossible to read the tea leaves, but I will say that qualified immunity has become a kind of a hot topic in the last year or so, because the court has started collecting these egregious cases and holding them.
And so right now there are a number of cases that are pending on certiorari to the Supreme Court involving qualified immunity.
And kind of the tea leaf reading suggests that the court might be open to addressing the doctrine.
There have been decisions by Justices Sotomayor and Thomas.
So people on opposite sides of the political spectrum who have both acknowledged that qualified immunity is an a historical doc is an a historical doctrine that the court just came up with for policy reasons in the 80s.
So it's not out of the question that the court will even this year potentially revisit qualified immunity.
Now, will it totally get rid of it?
That seems unlikely to me.
But it may very well liberalize the policy, which would be a step in the right direction.
I think that the doctrine has to go if the Constitution means anything.
It should mean that the government can't violate rights provided to you and me by it.
How do you like that for activist judges writing the law conservatives?
You know, there's a deafening silence there, but it seems like the fact that these guys made this up in 1982 itself is proof that they had no right to do so.
That the Constitution does not provide for a license to kill a license to steal for cops.
And the Constitution didn't say that the judges can make up a doctrine, giving them a license to commit these crimes against us.
They just did it because they wanted to, based on a pretended belief that this was OK.
Well, it's actually kind of remarkable, because this is one of those cases where if you go back and read the the genesis of qualified immunity, it's very clearly based solely on policy that has nothing to do with what's written in the Constitution.
And even a few years after the court created that doctrine, it kind of has boilerplate in some of the decisions that it puts out where it says, yeah, we totally did away with this historical common law process and created this new thing based on the policy of not wanting to inconvenience the executive branch with all of the cost and trouble of getting sued when they violate people's constitutional rights, which in and of itself is pretty remarkable.
I mean, I think that most people who care about the Constitution think that obviously the point of the Constitution is to make things impossible, if not inconvenient for the government to do to you.
Right.
Well, that's the whole theory, supposedly, of the rule of law, as opposed to the rule of men, where they get to accept themselves from all the laws that apply to the rest of us.
And so.
Right.
You know, go ahead.
Let me let me just comment really quickly that that line is basically taken from Marbury versus Madison, which was a decision in 1803 by the Supreme Court.
And the very next year, the court decided a case called Little River versus Bahrain, where a naval officer on orders of the president captured a Danish vessel in violation of a statute.
And he got sued by the the owners of the ship.
And the Supreme Court applied damages against him and said, look, if you do something unlawful, it doesn't matter if the president's the one who told you to do it.
We're going to hold you accountable.
And if Congress wants to pay you back for the damages, then that's their decision.
But we're here to decide cases and controversies.
And that's what we're going to do.
Hold on just one second.
Be right back.
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You know, there was an argument that Scalia made in when they were fighting over the exclusionary rule, which thankfully survived.
But this is the one.
I forgot exactly which case this was, where the court, I guess, sort of applied the Bill of Rights to the states on this and said that if the cops obtain evidence illegally, then it can't be used against you.
And Scalia said, well, that's just crazy.
They ought to be able to use evidence no matter how illegally it was obtained, because the police agencies in America are so professional now that they would never obtain evidence illegally anyway.
So we can go ahead and do away with this restriction, this applied accountability for them, because it's unnecessary, because they wouldn't think of doing the wrong thing, when, of course, the only reason that police agencies adopt any kind of strict policies about how they obtain evidence was because of the exclusionary rule.
So they wouldn't get all their cases thrown out of court in the first place.
Yeah, there's actually an interesting intersection between the exclusionary rule and the ability to bring these kinds of constitutional claims like they're being brought in in in Jessup.
And that has to do with the fact that that case, Matt versus Ohio, was decided shortly before the the the court decided the case called Bivens, which is the case that gives you the right to directly sue a federal officer for violating your constitutional rights.
And so if you go back and read that case, a lot of what the dissent's arguing about has to do with the exclusionary rule.
And whether or not you think there's a constitutional basis for the exclusionary rule, we're kind of living in this crazy world where it's pretty obvious that damages are certainly something that should be available to someone.
And if, for instance, police violate your rights by taking evidence to use against you, you should be able to sue them.
And that would allow people who are innocent, as well as people who are guilty, to get some sort of remedy for the constitutional violation.
Whereas the exclusionary rule only allows people who actually need something to be excluded from a criminal case against them to seek some sort of redress.
But I mean, I'm in support of both of those doctrines.
I just point out how interrelated they are, because you're totally right that most of the criticism of these things has to do more with defending the executive branch and making things easier for them to do.
And when I say easier, I mean making the Constitution more simple to circumvent.
And now, so here's something I'm confused about.
There is this great essay, and I tried to get the guy on the show, but he just wouldn't do it.
But there's this essay by a lawyer named Scott Greenfield, and it's called Tamir Rice's Basically Reasonable Murder.
And people might remember that Tamir Rice was a 12-year-old boy playing with a toy gun, and some rat called 911 on him but told the 911 operator, geez, I think it's just a toy.
But she didn't pass that on to the cops, and the cops pulled up, and the rookie jumped out of the passenger seat and immediately blew this kid away.
And they had outside so-called experts come in, I think a former FBI agent and another former officer, and they said, in their judgment, what the cop did was reasonable.
And what Scott Greenfield wrote was that, apparently, as far as I understand what he wrote, there is no law that makes it a crime for a cop to murder anyone, even a 12-year-old boy.
The only restriction on their right to take your life is the reasonable seizure clause in the Fourth Amendment.
So the only question, unlike if you shot me, the question would be, did you absolutely have to in defense of your own life or another innocent life?
Their threshold is, eh, reasonable.
And then, based on the qualified immunity doctrine and then further and further interpretations of that doctrine, it turns out the only people who can judge whether it's reasonable are not the jury but other cops.
And so they get another expert cop to sit on the stand and say, well, I would have killed the kid, too.
And if other cops agree with the cop who did the killing, then that's perfectly fine.
And that's why cops right now can walk around and blow somebody away and then have their lawyer in court mutter the word furtive or waistband and walk right out of there.
Whereas say, if you shot a cop in the head and said, well, he was acting furtively and he reached his hand toward his waistband, they would give you the death penalty.
Man, I have trouble with that, because before the qualified immunity decision that the Supreme Court made up in 1982, was that really always the law, that there was no law that forbids a government agent or a police officer, at least, from killing you other than the reasonable clause of the Fourth Amendment?
Is that really all that we have to protect us after being reinterpreted almost completely out of existence here?
Well, I think that's the key.
I think the answer is yes.
But the problem is that they have refined it and refined it to the point where it makes no sense anymore.
And and again, you you touched on this.
The problem is that the standards are different if you have a badge than if you don't.
And so if you just shoot someone on the street, you're going to be susceptible to a lot of different arguments that a police officer wouldn't be.
And so, you know, getting back to the qualified immunity application of this, in a lot of these contexts involving cops, the Supreme Court has explicitly said, we're only going to consider objectiveness.
And if there's any basis we can think of that would make what happened reasonable, then we're going to accept it.
And so there was a Supreme Court case not too long ago where there was someone who was fleeing from some sort of police stop, and there were cops and they'd been told to deploy spike strips.
But this one hotshot cop decided he was going to try to shoot the car to stop it.
And he had been told explicitly not to do this because he told one of his superiors ahead of time that he was planning to do it.
He did it.
He killed the guy.
The guy's family brought.
And after he killed the guy, he was being chastised for it by superiors.
And he said something like, how's that for proactive?
Like he had been told he hadn't been working hard enough or something.
This was some sort of glib joke that he had done something good by murdering this guy.
And so the guy's family sued under Section 1983, and it was a case that got tossed out on qualified immunity grounds.
And again, the court said, yeah, we're not going to look at the fact that this guy made this comment that obviously indicated that what he knew that he was doing, he knew what he was doing was wrong, because we only look at this from an objective standard.
And so that allows bad faith actors like police who want to steal $225,000 or police who intentionally violate your rights from being held accountable in any way.
And so they are just kind of given this get out of jail free card, but also get out of any liability free card, because not only are they not going to face criminal justice, they're not even going to be able to be sued by someone who has had their rights violated.
And now I'm sorry, because this is just silly at this point, but it shouldn't be to point out that this is the United States of America, that this is the constitutional republic with the greatest bill of rights ever, that this is the land where our whole creed is liberty and justice for all.
And I guess people don't use the term this way anymore.
But when I was a kid, people would say, hey, this is America.
And that meant you can't do this to me.
But yeah, they can.
And that's why people don't use that phrase in that way anymore, because we've just come to accept that really we're not any more free than some peasant in Mexico.
If the soldier slash cop decides to murder us, that's just how it is.
Yeah, it's extremely frustrating because, you know, someone as someone who litigates these kind of cases for a living, this is obviously something that comes up constantly.
And so, you know, I'll give you another example.
I have a case that I filed four or five years ago that the Supreme Court had considered today on its conference.
And we'll find out Monday if they're going to do something about it.
But our client was a 21-year-old innocent college student named James King.
And he was walking down the street when he was misidentified as a fugitive by two members of a state federal task force, one of whom was a city cop and the other was an FBI agent.
And they mercilessly beat him.
And then when the uniformed police arrived and everyone knew this wasn't the fugitive they were looking for, they charged him with a bunch of crimes, obviously in an attempt to make sure that the police wouldn't have to face any consequences.
And so he was prosecuted all the way to a jury trial before being acquitted.
And then when he filed a lawsuit, when we filed this lawsuit against the cop and the FBI agent, they cried qualified immunity.
And we lost in the district court.
We appealed to the Sixth Circuit, which did a great job of skirting all these standards and said this cop and FBI agent are not entitled to qualified immunity.
And so we thought, OK, now we can finally get into court.
It had been years and these cops had not had to set foot in court because of all the standards.
And instead, the U.S. Solicitor General got involved in the case and petitioned the U.S. Supreme Court to create an entirely new type of protection under a statute called the Federal Tort Claims Act.
And so now we're going to wait and see what the Supreme Court wants to do in that case.
But I mean, the point is, it's been five years since we filed the lawsuit, six years since the beating took place, and nothing has effectively happened, even though the Sixth Circuit said what these cops did was unconstitutional and not entitled to qualified immunity.
And so you can just see how hard it is to even if you can navigate the system now.
It takes years and it takes a ridiculous amount of legal expertise and legal help that most people are not going to have access to.
There just aren't enough places like the Institute for Justice or attorneys who are willing to provide those sort of pro bono services that are almost essential to bringing these kinds of cases.
Right.
And the same thing applies to judges and prosecutors who knowingly imprison innocent people, too, right?
Oh, that's that.
Yes.
So that that's that's a separate frustration, which is that so while while executive officers like police officers are entitled to qualified immunity, judges and prosecutors are entitled to absolute immunity.
And that includes any time that includes actions where they intentionally, knowingly violated the law and did stuff that's just so far beyond the pale.
It doesn't matter if they're acting as a judge or a prosecutor.
They cannot be held liable for those actions.
So at least at least with cops, you can try to navigate this qualified immunity space.
And there are situations where you will be able to do that.
But if it's a prosecutor or a judge who did something to you, forget about it.
Yeah.
Well, listen, here's me giving you some advice that is probably completely useless to you.
But I'll go ahead and mention that because these judges and government actors care only about themselves and not at all about us.
It might be a worthwhile avenue of argument that this is severely costing the government its legitimacy when the average person thinks of them as roving bands of lawless killers who are completely unaccountable to the law.
When we have case after case after case, month after month, year after year of innocent people being robbed, innocent people being beaten and brutalized, innocent people being thrown in prison for crimes they didn't commit, innocent people being shot to death.
And the cops walk away with two weeks paid vacation laughing in all of our faces.
This makes good people, decent law abiding citizens, hate the cops and hate the government.
And that puts them and their precious legitimacy at risk.
And so if they care so much about themselves, they better at least pretend that there's such a thing as a rule of law that applies to them.
Otherwise, what is their argument against us going to a second American revolution to overthrow their corrupt power?
Well, I think I think this brings us all the way back to Marbury versus Madison, which is if the United States is what it's supposed to be, then it's supposed to be a government of laws and not men.
And if it's if it's a government of men and not laws, then it has no legitimacy whatsoever.
And the Constitution serves effectively no purpose other than to be some sort of document that's a suggestion for what the government might do if it feels like it.
Right.
But forget principle.
Right.
It's a matter of them being afraid that if they stray way too far from that principle, that they just won't have any legitimacy left at all.
And once the next skirmish breaks out, it's just going to keep rolling and getting bigger and bigger.
Because why not at that point?
I mean, I definitely think that that's the sort of the foundation for basically the entire concept of the state in the first place.
So, yeah.
All right.
Well, listen, I got to tell you, as mad as hell as I am about this, I am so grateful that the Institute for Justice is here because you're right, there's just not enough of these guys.
I learned this way back in the 1980s watching 2020 about whatever different public policy group that you've never heard of fighting for the justice for some downtrodden, overlooked individual out there.
And the lesson is, if you don't do the work, the work doesn't get done.
It just doesn't happen unless people are willing to do what it takes to make it happen.
And that's you, sir.
So thank you.
Well, thank you.
It's a dream come true every day to get up and do what I do, which is sue the government for a living.
Yeah.
And to make sure that people's rights are safeguarded.
And I'm thankful for the Institute for Justice and anyone else who's willing to help in that fight.
And hopefully our project on immunity and accountability that's addressing things like qualified immunity will be able to push things in the right direction.
And hopefully, you know, just even today's little show will be enough to inspire one law student or another to follow this path instead of becoming just some corporate negotiator or, you know, a prosecutor or some terrible thing like that.
I've been I've been in the civil side of things, and I can definitely tell you this is a lot better.
Yeah, man.
All right.
Well, thank you so much, Patrick, for your time today.
I really do appreciate it a lot.
Thanks, Scott.
It's been great talking to you.
All right, you guys.
That is Patrick Giacomo.
He is at the Institute for Justice.
That's IJ.org.
And they're fighting for you every day up there, IJ.org.
This piece is called Police Stole $255,000 in Cash and Coins.
And the court said, OK.
