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.
He sues the government all day for you.
Welcome back to the show.
How are you doing?
I'm great.
Thanks, Scott.
Patrick Giacomo, a lawyer is the kind of guy who sues the government all day for being evil and breaking the law and committing crimes against the people, which they do all day.
And you're really fighting the good fight.
You took one of the Supreme Court overqualified immunity.
Is that right?
Yep.
Yep.
All right.
Tell us the whole story.
Yes.
So this case is about our client, Jose Oliva, who in 2016 was 70 years old.
He's a US Air Force veteran and he was going to his local VA for a routine dental appointment and he was getting in line to go through security and he encountered some VA police officers because as you might not know, and I frankly didn't know until I ran across this case, the VA itself has a more than 4000 strong force of federal police officers that are staffed in it's about 160 hospitals across the country.
And so these guys are full on cops that have the power of police and work for the federal government.
Anyhow, Jose was getting in line to go through security and he placed all of his belongings into an inspection bin like at the airport.
And one of the officers asked him for his ID and he said it was in the bin.
And the officer got upset with him because he didn't have the ID in his hand and came around the security checkpoint with his handcuffs out.
And then he pointed for Jose to go through the metal detector, which he did, at which point another officer grabbed Jose, the first officer put him in a chokehold, the two slammed him to the floor and wrenched his arm behind his back so hard it made a popping sound.
He was eventually arrested and charged with disorderly conduct, which was later dropped.
But because of what the officers did and choke slamming this 70 year old man to the floor in a hospital in front of a bunch of people, he suffered serious shoulder injury that he'll never fully recover from and has persistent throat issues because of the choking that was done.
So the real the real upsetting part here, in addition to the physical damage that was done to Jose, is that Jose himself was a lifetime law enforcement officer.
And so the indignity of what these officers did and the unprofessionalism of what they did really bothered him on top of the physical damage that it did to Jose inside of a hospital where he was going for a dental appointment.
Yeah.
And so what was it that set them off just that he didn't have his ID in his hand or he didn't even know?
Yeah.
It's the weirdest thing.
They haven't really even tried to defend themselves.
We have the video, which is on our website, IJ.org.
It's about a minute long of the actual incident.
And it's, you know, your typical security footage, quality video.
But essentially what happened was they were upset that he didn't quickly enough give him his their the ID.
He didn't try to get past the security checkpoint.
He didn't scream at them.
He didn't push them.
You can watch the video.
It's very strange.
After he filed his lawsuit, the officers came and they filed materially identical affidavits saying the reason we used force on Jose was because he attempted to enter the hospital without going through the security checkpoint.
That's all they said.
So they've given no substantive explanation for why they did what they did, because there isn't a good explanation for why they would do this to a 70 year old man.
Their statement on its on its face is false.
He was at the security checkpoint when the entire thing went down and was in no way trying to go around it at all.
Right.
Yes.
And that's that's the really ridiculous part, in my opinion, is if you watch the video, you can see that the main officer come around with his handcuffs out, say something to Jose.
And all this takes place in the span of seven seconds and then point for Jose to go through the metal detector, which he does at what at which point they all grab him and jump on him, choke him, throw him to the ground.
They make it sound like he snuck in the janitor's door or something like that.
Right.
Exactly.
Like he was trying to infiltrate or he came in guns blazing through the front door.
It wasn't like that at all.
He was literally standing in line like you would at a TSA checkpoint to go through a metal detector to go into a hospital.
Right.
But then.
So the courts on the way to the Supreme Court, they must have ruled that this is America where the cops don't have to obey the law at all.
They have a license to kill.
All they have to say is waistband or furtive and they can shoot a child in the head and walk and everybody knows that.
So how did this even get to the Supreme Court?
Obviously, they can beat up a 70 year old man for fun as long as they're on the clock.
They can commit any crime.
We have we Americans have no rights.
They are bound to respect.
That is the law in America, as made up by the courts already in the past.
Right.
Well, so the weird thing about this case is that so Jose Jose filed his lawsuit in the in the trial court.
The officer said we're entitled to qualified immunity, which your audience and you are familiar with.
This is a concept the Supreme Court created in 1982 that basically says any government official, state, local, federal, doesn't matter if it's a cop or an IRS agent, is by default immune from constitutional lawsuits unless the plaintiff can show that the violation of their rights was clearly established by an earlier case involving basically identical facts.
And so that's what the officers tried to do in the district court here.
And the district court said, no, it's been clearly established that you can't use force on an unresisting suspect who didn't commit a crime, which is what Mr.
Oliva is.
Therefore, you guys are not entitled to qualified immunity.
Well, these federal cops appealed that case to the Fifth Circuit Court of Appeals, which is the court between the trial court and the U.S. Supreme Court.
And it got to the Fifth Circuit and they said, well, actually, we don't need to reach this issue of qualified immunity because instead we're going to under a doctrine called Bivens simply say that you're not allowed to sue these guys at all because they work for the federal government as opposed to the state government.
So even though the right in this case was so clearly established that qualified immunity was defeated, the Fifth Circuit basically said you can't sue federal cops in this circuit anymore.
Sorry.
So it doesn't matter how badly they behave, how maliciously if they act with intention.
None of that's relevant in any way.
And pretty much now the 36 million people that live in Texas, Mississippi and Louisiana, which are the three states that make up the Fifth Circuit, have no recourse if a federal cop violates their Fourth Amendment rights by beating them up or searching them without a warrant or something like that.
And now under Bivens, do they have a new name for it or they still call that qualified immunity, too?
That's a completely different doctrine, which is what's really galling here.
So qualified immunity protects all government workers, state and federal.
This Bivens doctrine applies only to federal workers and makes it even harder to sue federal workers independent of qualified immunity.
So you can, like Jose did, defeat qualified immunity and still lose under Bivens or vice versa.
You can win under Bivens and get to move forward and then the court can still grant qualified immunity to the federal officers.
So it really creates this two track system of accountability where federal officials who often have much more power than state officials have much less and in most cases, the vast majority of cases, zero accountability.
And just to highlight how it works, Bivens has only been allowed in three specific instances.
One is basically when a federal cop violates the Fourth Amendment.
But for most of the Bill of Rights, there is no Bivens remedy at all.
So there's nothing under the First Amendment that protects you when a federal officer violates your First Amendment rights.
The courts simply will not allow you to sue federal agents when they do that.
And now in the Fifth Circuit, you can't even sue federal cops when they violate the Fourth Amendment unless they happen to be narcotics officers who are handcuffing you in front of your family in your apartment.
And that was just because of a quirk of one case that one got settled that one way.
And so that's a new precedent established there.
Yes.
So that I never understood that catch 22 loophole that none of these cops can ever be found liable unless there was a previous case that already established it, which there can't be because there wasn't one before that.
Yeah, it's really frustrating.
So in the Bivens context, that is exactly how it works in qualified immunity.
It works in a similar way, but it's almost like a matter of judicial grace because these courts can, if they want to, establish a constitutional right.
But they often don't, as you know, which, as you're identifying, means that, you know, the more times you get away with it, the more likely you are to get away with it in the future.
And so, for example, there was a case out of the Ninth Circuit last year called Jessup versus City of Fresno, where cops were alleged to have stolen two hundred thousand dollars.
And the Ninth Circuit said, well, there's not a case that says that's unconstitutional.
And in doing so, declined to say that it actually was, which means now any cop in the Ninth Circuit, which covers California and a bunch of other states on the West Coast, could steal things.
And it's not a constitutional violation because the Ninth Circuit's affirmatively said there is no constitutional right for you if your stuff gets stolen by cops.
It's funny, I wonder if anybody even told these people, they even know that supposedly the excuse for us tolerating their presence at all is that they are supposed to be our security force rather than our greatest, most dangerous enemy and threat to our life and liberty.
It's very frustrating, right, because anyone can pick up the Constitution and read the Fourth Amendment, which very clearly says the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.
That's it.
That's the phrase shall not be violated.
What does that mean?
It doesn't mean that it can be violated unless X, Y and Z.
But that's the situation we face now.
And it's even worse for federal officers because in most cases they're plain scot free.
If Bivens doesn't apply, there's no liability for them for violating the Constitution whatsoever.
And now, you know, this is funny because this whole conversation is talking about whether you can file a civil lawsuit and hold these people accountable because we're already on our second runner up choice because it even goes without saying this whole conversation began.
We skipped over even the possibility, even the fantasy that some district attorney somewhere is going to hold police officers accountable for breaking the law and prosecute them and put them in prison.
Forget that.
That's not even in question at all.
The question only is whether you can sue them civilly.
And then the answer is no.
Although you're really trying our luck on the Supreme Court steps with this now.
But talk about the criminal aspect, right?
Where a cop doesn't even have to even say, well, I don't know, he made a furtive movement.
Like, you don't even have to bother with that.
They have essentially a license to kill anybody, don't they?
Yes.
So you're totally right that everything we're talking about is just in the context of civil lawsuits where the individual person whose rights are violated sues the officers who violated their rights.
None of these doctrines apply in the criminal context because, as you pointed out, the decision whether to prosecute someone for a crime is completely up to local prosecutors or federal prosecutors, depending on who we're talking about.
And those prosecutors to do their jobs on a daily basis rely on police to collect the evidence and come to court and testify.
And so just based on that alone, there's an enormous conflict of interest because these prosecutors don't want to charge cops with crimes regardless of how blatantly they've been committed, because when they do, then they run the risk of alienating an enormously important aspect of what they do to prosecute people, which is rely on the actions taken by police.
And so in Jose's case, like I said, he himself had been a lifetime law enforcement officer.
He had a gold watch that he got when he retired from working under the Department of Homeland Security.
And that watch was destroyed by these other federal police who violated Jose's constitutional rights.
And so Jose began this whole quest by going to the local federal prosecutor in the FBI and saying, you need to investigate this.
What these guys did to me was a crime.
And long story short, that whole process simply got swept under the rug and nothing ever came of it.
No charges were ever filed.
We're not aware of any employment issues that have been taken in these cases.
And Jasper Craven, who is reported at the Intercept and has a substack who's looked into VA police officers in particular, has highlighted the rampant problems that the VA police forces face.
And in fact, the office of the investigative office at the federal level has looked into the VA and highlighted that it has basically no solid oversight and these cops kind of just do whatever they want and nobody does anything about it.
Hold on just one second.
Be right back.
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Yeah, now I'm sure that we've talked about this before because whenever we're on this subject, I always try to bring this up because it's so important.
And I don't know if you remember this or if you've ever read it, but it's along the lines of when you were quoting the Fourth Amendment, there shall not and all that stuff.
Well, I like that.
But according to the courts, you're focusing on the wrong words.
The point of the whole thing is reasonable.
In other words, they're looking for a loophole and they found it.
And there it is in the Fourth Amendment.
Well, you can do all these things to somebody as long as it's reasonable.
And then so in this article, and I constantly recommend this to people, I never could get the guy on the show.
He says he refuses to do interviews with anybody, but he's a civil liberties lawyer named Scott Greenfield.
And that's his Twitter handle, too.
And he wrote this piece.
It's at blog dot simple justice dot US.
But you can just Google Tamir Rice, that's the 12 year old boy with a toy gun that the cop just blew away immediately, gave him no chance at all.
Tamir Rice's basically reasonable murder.
And then he goes through and he explains how the experts reviewed the case and decided that, of course, this was perfectly reasonable and that no charges would be brought.
And that was the end of that.
And then the reasoning was he goes through, you know, kind of the syllogism of the different court decisions, starting with Graham versus Connor, I think, in the early 80s and going through and saying essentially that, you know, the law that makes it a crime for you to kill me or for me to kill you, that doesn't apply to apply to a cop at all.
I don't know about IRS agents and other, you know, like you're talking about in this on a civil level.
This immunity is spread as broadly as possible.
I'm not exactly sure how this works on the criminal level, but certainly for police officers, according to this, which sure seems well thought out to me.
What it is is they reduce the only prohibition against a cop taking your life, seizing your life, is that it's reasonable.
That's it.
Not absolutely justifiable homicide.
No other choice.
He was either going to kill me first or kill another innocent person.
And I had to respond in an immediate fashion, which is the burden of proof you would have to cross to be found not guilty of killing somebody on a justifiable homicide.
Right.
You had no choice to a cop.
Reasonable.
And what's reasonable is actually not even to be decided by the jury because some other court decided that actually only other cops can decide what's reasonable because only other cops have the experience and training and all of these things.
And so as long as the defense, assuming in the pretension that a prosecutor would ever indict a cop for murder anyway and prosecute him anyway, which is a one in a billion shot, probably if that ever does happen, as long as the defense can call another cop to the stand to say, well, geez, I would have shot, too, then that's good enough.
That's all you need to know, because it's only their opinion that matters about what's reasonable, not yours.
And so the instructions from the judge to the jury would be, I'm not asking you what you think is reasonable.
I'm asking you to judge whether you heard a defense witness say it was reasonable to him and you are bound by that.
And so on down the chain, it means that they can shoot a little black kid in the head and walk and laugh.
The kids playing in a park with a toy gun and where they did everything wrong.
In fact, he talks about how the way they pulled up to the scene was wrong, the way the 9-1-1 dispatcher, you know, relayed the story of what the call was about was wrong, the way the cop just jumped out of the car right in front of the kid who was said to be armed in the way that he did.
Doesn't matter.
Every other little aspect of context and every other thing other courts have already decided.
None.
No context matters at all.
Doesn't matter that the person was four feet tall and maybe not an armed adult.
No, no, no.
You're not allowed to consider that, jury.
You're not, you know.
And so they just they basically the courts, not the not the legislators.
The courts have invented a license to murder where it's virtually impossible to find them criminally responsible unless they're off the clock.
If they beat their wife to death on a Saturday night or something, that's one thing.
But otherwise, I mean, is that right?
Is that basically right that the way the courts have interpreted this, that you're essentially up against Mount Everest here?
There's nothing you can do.
Yeah.
So there's a lot to unpack there.
Go ahead and I'll be quiet for a long time now that I asked that giant question.
Go ahead.
OK, there's a lot to unpack there and I want to unpack it because a lot of it's very important.
And the first thing that comes to mind before we get into the reasonableness analysis is you we've seen over the last year a lot of well-intentioned and and good suggestions for how to improve policing, how to change policies, all the rest of it.
But the problem is that even if you put in place excellent policies, how you enforce those policies really matters, because if there's no enforcement mechanism, then the policy itself is just illusory.
And so, as you said, you can have situations where police violate department policies, do all sorts of stuff like that and still get off the hook because a prosecutor won't prosecute or the constitutional standard is forgiving enough that a police officer can do something and get away with it.
And to answer your question, yes, anytime a government worker is accused of having unreasonably searched or seized, which includes excessive force, these same standards would apply.
So whether it's a cop or not doesn't matter.
An IRS agent can do this.
An FBI agent can do this.
An agent of the Bureau of Land Management can do this.
But the thing that's really galling is you're not wrong about the application of the reasonableness standard, which takes into account the circumstances as they were faced and how a reasonable cop could have reacted under the circumstances or reasonable FBI agent or anything along those same lines.
But what gets even more frustrating is when you debate these issues like qualified immunity or Bivens, which are added layers on top of that, like all we're asking, all that we're trying to do is wipe away things like qualified immunity and Bivens, and then we can argue about whether the court's understanding of reasonableness under the Fourth Amendment is proper or not.
But we're just desperately trying to even get to that point.
Qualified immunity and Bivens stop you from even getting there because you have these other hurdles to reach before you can even get to whether what the officer did was actually unconstitutional, meaning whether what the officer did was even unreasonable.
And so it's very frustrating when you debate these policies with people who are often coming from the police or prosecutor perspective and they say things like, well, policing is a very difficult job.
It's very dangerous.
You need to allow them room to make reasonable mistakes.
Or you've heard all these lines of argument, but we're not even able to get to that question because qualified immunity and Bivens stop us from getting there.
So the federal cops in this situation, they could have used qualified immunity and they tried to, but that got wiped out of the trial court.
And instead, they relied on Bivens to just say, hey, look, we're cops that work for the federal government, so you can't sue us no matter what we do.
And we don't even get we don't have to explain why what we did is reasonable or unreasonable under the standards that the Supreme Court has articulated over the last 40 years or so.
And so if we could get to the point where we were actually litigating about whether what an officer, a cop did or an IRS agent did or a mayor did was unconstitutional, that would be a huge step forward.
And we could hopefully then address those problems, because another thing that things like qualified immunity and Bivens do is it stops courts from even getting there, which stops the development of the case law and of the legal doctrines underlying the constitutional claim.
So if we wanted to challenge the reasonableness standard, we're oftentimes not even able to do that because we can't reach the merits of the constitutional claim thanks to things like Bivens and things like qualified immunity.
And so that's why getting a case like Oliva versus Navar up to the U.S. Supreme Court is so important, because we need to have the opportunity to say, hey, what does the Constitution actually say and how does it apply to the people that it's supposed to be restricting?
Right.
OK, so listen, there's this really important article at the Herald Republican.
Local Boy Makes Good reads the headline.
Giacomo presents case to Supreme Court.
Local Boy from Fremont went and talked to the U.S. Supreme Court justices.
Everybody check this out.
I love this article, the way they talk about you and what a great job the reporter did in describing the arguments and everything.
And it says in here that it sure seemed like every single Supreme Court justice asked a question and that all of them seem to think that you were right and the government was wrong.
Well, I think my hometown paper, the Herald Republican, might be a little bit biased in its understanding, but I like to think they're right.
So that that was a case called Brownback versus King, which was another police brutality case.
I'm sorry.
I'm mixing the Supreme Court.
But no, it's great.
It's great.
So that case was.
I thought it was two, but then I thought you corrected me that.
No, really, it was one.
But now I need to deconflate.
Well, I don't know what I'm doing here.
Go ahead.
We'll get as many up as we possibly can.
So it gets confusing because there are plenty of great cases involving police brutality that go up.
Yeah, that that case was one involving a federal task force that I argued back in November.
And this one is a petition we filed in January.
And the task force thing is interesting, too.
And it ties in neatly with with Liva, because officers who are members of task forces, even if they're local police, are treated like federal officers, which means they get all these special protections like Bivens.
And at the same time, another fun fact for your audience is that federal police, including members of these task forces who are often local police that are simply deputized as U.S. Marshals, they are not allowed to be criminally prosecuted by local DAs.
They can only be prosecuted by U.S. attorneys in the federal system.
And so they're insulated even more from accountability on the criminal side than they already are just because of the conflict of interest that exists between police and prosecutors.
This all sounds a lot more Carl Schmitt than James Madison to me, dude.
But I don't know.
Yeah, it's a mess.
But now, so tell me about dealing with these justices.
They were looking at you and nodding and smiling and say, this guy clearly is making sense in the government's not right.
I mean, you're pretty good at arguing your case.
I got to say.
Yes.
So in that case, the actual issue before the Supreme Court was another type of immunity that is new, that the solicitor general of the United States was urging a new kind of immunity, a new kind on top of qualified immunity, on top of Bivens.
In fact, in that case, Brownback versus King, James King was an innocent college student who was beaten up when he was unreasonably misidentified as a guy who'd stolen pop cans.
And he was then charged with several felonies, went through a criminal trial, was completely acquitted and exonerated, then filed a lawsuit.
And by the way, both of these instances, James King's took place in 2014.
Jose Olivas took place in 2016.
And here we are still litigating to get essentially to like the first step of what you would normally do if you filed a lawsuit.
But since you're suing the government, there are so many hurdles that it takes you a decade to even get to the point where there's a trial that decides whether what happened was good or bad.
But in that case, the solicitor general was asking for another special protection that would stop James King from raising his constitutional claims.
And the Supreme Court has not decided the case yet.
We're waiting.
It could be any day now.
It could be in June.
But essentially, all of the questions in that case were either aimed at what was wrong with the solicitor general's position or were kind of offering the solicitor general, hey, is is this properly before us or could we give you an out by just saying technically that issue is not before us.
So we should not decide the case at all.
So we'll see what they do.
But I was cautiously optimistic just based on the lines of questions that we saw from, frankly, any of the justices that you could find a way to to see how it could come out the right way.
Yeah.
But tell me that I'm confused that I think that you just said, though, that if they refuse to hear the case, then this brand new made up thing by the executive branch becomes real from now on if they just don't strike it down.
No, that shouldn't be the case.
Luckily, this that case is up to the U.S. Supreme Court after James King won in the Sixth Circuit.
And so if ultimately the Supreme Court just says, you know what, the issue that we ended up talking about wasn't properly before us, we're just going to dump the case and deny cert after the fact.
The Sixth Circuit's ruling will stay in place, which essentially rejected the new immunity that the government's asked for.
That's good.
So in other words, it was them that appealed the Supreme Court, not you.
Yes, this one.
I am.
Yes.
Yes.
We've been trying to defend it, defend the win and allow James King after six years to finally go in front of a jury and plead his case.
Yeah.
Listen, I feel like I'm talking to the last gasp of the Bill of Rights here, man.
You know, without you guys, I always thought this way.
I remember like watching Stossel on 2020 in the 1980s where he's talking about this or that public interest group that filed a lawsuit against this evil corporation or this abusive government office or something.
And I remember it occurring to me then when I was 12 that like, man, you know, if people didn't do that work, it wouldn't get done.
Innocent people be sitting in prison.
Poor people be eating poison and everything would be wrong.
It takes people fighting, people like you doing the work that you're doing and and so many different people on so many different levels.
But this kind of thing taken on the executive branch and on abusive police power against innocent American civilians, the powerless regular Joe in America, the way it is.
And some of the most important work being done in the country right now is by you.
And I want to let you know that I speak for a lot of people and I tell you how grateful I am for it, too.
Well, thank you.
It's really an honor to get to do this and to help the clients that we help.
And, you know, as you said, you're up against these long odds all the time when you're litigating against the government.
But it's it's it's an honor to get up every day and try to make the world just a little little bit better.
And we can't do it without the generous support of all of our charitable benefactors because everything we do is part of a charity.
We don't charge any of our clients.
We do this all because we care about these issues and we want to ensure that the Constitution actually does what it promises to do.
You know, if we if we, the people have to follow the law, our government should follow the Constitution.
And I believe that.
Yeah.
All right.
And so the Institute for Justice is IJ.org.
Boy, you guys were on it in 1994, huh?
Now, what would be the address then if people wanted to help support?
Is it slash donate?
You can just go to IJ.org and there's a big button on the front page.
Great.
All right.
Listen, Patrick, thank you so much for coming back on the show.
I really appreciate it.
Happy.
Good to talk to you, Scott.
OK, guys.
Check out Patrick Giacomo.
He is at the Institute for Justice IJ.org.
This one is called Giacomo presents case to Supreme Court in the Herald Republican, which is great.
And then this is at IJ veteran beaten by police in unprovoked assault at V.A. Hospital appeals case to U.S. Supreme Court.
And then, of course, this is sort of next to the point.
Tamir Rice is basically reasonable murder by Scott Greenfield.
They're at simplejustice.us, an important piece for all y'all to look at.
Thank you again so much, Patrick.
See you.
Thanks.
The Scott Horton Show, antiwar radio can be heard on KPFK 90.7 FM in L.A.
APS radio dot com, antiwar dot com, Scott Horton dot org and Libertarian Institute dot org.
