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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 Jay Schweikert, and he is a research fellow at the Cato Institute.
And man, he's got some really important news for us here.
Welcome to the show, Jay.
How are you doing?
I'm doing great.
Thank you for having me.
I'm happy to have you here.
And man, I've got to keep fiddling with this dial, it ain't quite right.
Hey, what a great headline.
New Mexico enacts landmark qualified immunity reform legislation for all public officials.
You're jerking my chain.
No, I'm not.
It's really exciting news, and it's the first piece of legislation of its kind ever.
So it's a huge development in the fight for accountability for public officials.
Okay, and then for all public officials, this isn't even about cops?
Yeah, that's right.
I mean, I think, you know, realistically, I think part of what was motivating this particular reform was, of course, the need to address misconduct by police officers.
But I think there was the, you know, recognition on behalf of New Mexico legislatures that this doctrine, qualified immunity, is unjust and unlawful in all of its applications.
And so if it's if it's good enough to address it in the context of law enforcement, there's no reason not to address it for any public official who might violate someone's constitutional rights and try to use this to avoid accountability.
Wow.
That's just amazing.
Okay.
Let me ask you something, but I got to kind of whisper it because I'm afraid of being overheard on the show here.
Okay.
Judges, too.
So one thing to clarify, I mean, so this this new civil rights law applies to any public officials in the state, no matter who they are.
The statute does clarify that it's it is it is precluding the application of qualified immunity, but it's not abrogating the doctrines of judicial immunity or legislative immunity.
Oh, I see.
So that doesn't mean that, you know, judges and legislators are, you know, immune from liability, that there's no that the statute doesn't apply to them.
But it does mean that those common law doctrines of judicial and legislative immunity, which are pretty strong, are going to continue to be applicable.
But those doctrines, unlike qualified immunity, actually are pretty well established doctrines in our common law history.
So there's room to debate whether or not they they really they should as a policy matter apply in the absolute way that they do.
But they're not the same sort of pure judicial invention and the way that qualified immunity is.
Right.
OK.
And, you know, just to be clear here, this has been signed.
This is not just a bill that got passed.
The governor signed it.
That's right.
Yeah.
It was signed just a couple of days ago.
The New Mexico Civil Rights Act.
Amazing.
OK.
Now, so can you take us back a little bit and explain about how the judges had only relatively recently created this doctrine?
Whereas and that is interesting, isn't, I guess, that the doctrines of legislators and judges getting away with doing anything is one thing.
But executive branch employees who are obviously the enforcers of the law and the people who come mostly in direct contact with the people, they had not been afforded this kind of immunity until relatively recently.
Is that right?
Yeah, that's right.
I mean, I think the best starting place here to really understand how we got to where we are today is a federal statute that was originally passed in 1871 by the Reconstruction Congress that that statute today we call Section 1983 after its place in the U.S. Code.
And this federal civil rights statute was really meant to be the primary way of holding state and local officials accountable when they violated people's constitutional rights, especially the rights in the then recently enacted 14th Amendment.
And it just it was a very straightforward statute that said, you know, any state agent, any government actor who violates someone's constitutional rights shall be liable to the party injured.
So very straightforward.
Your rights were violated.
You get a remedy.
And for about a century, the courts interpreted that federal statute to mean basically what it said.
But then starting in the late 1960s and sort of culminating in a decision in the early 1980s, the Supreme Court effectively rewrote this statute and grafted onto it this extra requirement that came to be known as qualified immunity, which required civil rights plaintiffs to show not just that their rights were violated, but that those rights were, quote, clearly established at the time of the violation.
And what that means in practice is that plaintiffs have to show not, you know, not just a clear legal rule, but a prior judicial decision in their jurisdiction with functionally identical facts as their own case.
In other words, courts, when they started applying this doctrine of qualified immunity, would often say, yes, your rights were violated, but we can't find a prior case where someone else's rights were violated in a sufficiently similar manner.
Therefore, qualified immunity case dismissed.
And the effect of this doctrine has been to dramatically undermine accountability for public officials of all sorts, but especially members of law enforcement, just because of how difficult that standard has has been to meet.
So I'm no lawyer, but can you help me out here?
The way I understand what you just said, it sounds like it's also a perfectly circular argument, which means that and no case about anyone's rights being violated shall be established from here on out if they haven't already been.
Yeah, that's exactly right.
I mean, it's it's it's it's a catch 22, really, because courts have the discretion to when they grant qualified immunity to refuse to even decide the underlying constitutional question.
In other words, they can say, we don't we're not even going to tell you whether your rights were violated, but we know that it wasn't clearly established.
So case dismissed, qualified immunity.
And then if that exact same misconduct occurs, it could be the same defendant and the same plaintiff the next day.
They would still get qualified immunity because the law has not been clearly established.
So yeah, I know it's exactly right.
It becomes this sort of vicious circle where the fact that there's not clearly established law keeps the law from becoming clearly established.
And then I'm sorry.
So this actual decision was in which year again?
So the decision that created the clearly established law standard was a case called Harlow versus Fitzgerald.
And that was in 1982.
Eighty two.
There were there were cases prior to that that kind of established a somewhat different version of the doctrine.
But that that case, the Harlow case in 1982, really crystallized the doctrine in its current form, which is that clearly established law standard.
So is it more or less fair, then, to say that what they ruled was unless it had any violation had been clearly established in law prior to the year 1982?
Well, so the way the way it works is that you you have to look at what the state of the law was when the particular conduct in question was committed.
Right.
So if a violation if an alleged violation of someone's rights occurred in the year 2000 and you brought, you know, your your claim, you know, two years later, you would be looking only at whatever the state of the law was in the year 2000 at the time of that.
But in the year 2000, no court would have ruled that your rights had been violated because there had been no rule that already said that before 1982.
Right.
Well, I'm so courts when when courts apply qualified immunity, they have a choice.
They have discretion about whether whether to decide the merits question first and then proceed to the clearly established law question or to skip the merits entirely.
The Supreme Court has said that, you know, courts can decide what way they want to approach this.
OK, so sometimes you do get courts saying, OK, first, yes, your rights were violated, you know, but now I'm going to hold that you don't get any relief because those rights weren't clearly established, which is obviously an unjust outcome.
But at the very least, it does establish the law going forward.
Right.
And so it's not.
And it shows that I was misunderstanding that.
So there have been plenty of cases where courts have ruled in new rulings that didn't have previous precedents, that this was a violation of rights.
But it's just whether the cop gets immunity from suit is depending on whether there had already been a similar case.
Yeah, that's right.
I mean, look, I mean, courts do skip that merits question a lot, especially in the most difficult cases.
So it has severely stagnated the law, but it's not impossible to develop the law.
And sometimes you do get judicial decisions in other contexts that are not qualified immunity cases.
So, for instance, if there's a case in a criminal proceeding about, say, like a motion to suppress whether some conduct violated the Fourth Amendment, those cases also can develop or establish the law for other purposes like qualified immunity cases.
So it's not impossible, but it has made it extraordinarily slow and extraordinarily difficult to get a remedy, even when someone can show that their rights were violated.
Yeah.
Well, I mean, that sounds like a real law journal article in itself right there, that it is stagnated the development of the establishment of new rulings protecting citizens from their government.
Absolutely.
And one of the best examples of the way this has worked out in practice is the right to record police in the course of their public duties.
Every single this is actually not a question that the Supreme Court itself has directly addressed, but every single circuit court, the different regional federal appellate courts that to have to have squarely addressed this question has held that, indeed, you do have a First Amendment right to record police in the course of their public duties.
Police can't arrest you or threaten to arrest you just because you record them using excessive force or something.
But in a lot of the regional circuits, this has come up through qualified immunity.
And what the courts in those circuits have said is, well, we're not going to say you have this right, but it's not clearly established.
So case dismissed.
And in a couple of circuits, that same question has come up repeated times.
And the court keeps dismissing because of qualified immunity.
So in those in whole regions of the country, this right that every judge agrees on when they have to actually decide the question is going unprotected solely because of the doctrine of qualified immunity.
Yeah.
Amazing.
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So was there a particular set of controversies in New Mexico that led to this, or was it just George Floyd and the whole thing last year?
Yeah, I mean, I don't think there was like one, you know, New Mexico-specific inciting incident.
Obviously, you know, the death of George Floyd and the, you know, national turmoil that his death plunged us into, you know, really put policing reform at the top of everyone's list as a, you know, legislative priority.
But I think, you know, the, you know, some of these key, the key New Mexico legislators to their credit recognize that, you know, although this is qualified immunity reform is essential to meaningful policing reform, it is actually even a larger and broader problem than just law enforcement.
You know, there are all kinds of egregious constitutional violations that go on in, you know, corrections facilities, sometimes, you know, even more egregious than some of the police misconduct cases you see, because these happen behind closed doors.
There are all kinds of constitutional violations that occur in public education facilities.
There, you know, a lot of students' free speech rights, you know, are violated and qualified immunity stands in the way of that.
So I think it's it's, you know, entirely appropriate that policing reform, you know, brought this issue to the forefront.
But I'm also encouraged to see that New Mexico addressed it across the board rather than just in that one context.
Yeah.
Well, it's funny.
I'm not sure how old you are.
I have to go way back to my childhood to the old cliche.
Hey, this is America, which used to mean you can't do that right.
But there's a line that we won't let you cross.
And something like declaring that the law doesn't apply to the people in charge of enforcing it would be one of those things.
And yet, if this is, quote unquote, America, not just a place, but a thing, too, then, of course, there shouldn't be qualified immunity or judicial or legislative immunity either.
Well, OK, protecting legislators from political prosecutions, you know, while they're passing laws, I get that part like is in the U.S. Constitution.
But for the rest of this, for the judges and DA's, oh, do they get away with murder?
And we all know it.
Nobody even thinks.
Isn't it funny if I bring up what if a judge were to be prosecuted for presiding over some bogus trial or a hundred of them?
The idea it sounds like I'm some kind of crank because that is never brought up by anyone ever.
It's not even thought of.
And it'll never happen because everybody knows once you're a judge, you can conspire to railroad whoever the hell you want.
And there, as Al Gore would say, there is no controlling legal authority that can stop it.
You know, I'm not sure I'm quite as cynical about judges as you are, but I do think I think it's good that you brought up that point about DA's, because the doctrine of absolute immunity for prosecutors is, you know, something that is also, you know, the courts, you know, in my view, have essentially made up that has no, you know, is not historically grounded in our common law and certainly is inconsistent with our civil rights statutes.
And it is abundantly clear that prosecutors, you know, commit extraordinary misconduct and pretty much get away with everything because they are absolutely immune from any and all civil liability.
So I think, you know, I mean, we have focused on qualified immunity because I think it's the it's the larger problem because of just how much more broadly it applies to a lot of different governmental contexts.
But I think that, you know, that absolute immunity for prosecutors is also, you know, should be a crucial priority for anyone interested in criminal justice reform.
Yeah, absolutely.
All right.
So did this make a lot of waves inside legal circles and government, you know, state governmental circles and things like that?
Do you know, is anybody saying, hey, listen, New Mexico is doing it.
Maybe we can go ahead and do this, too.
Oh, I mean, I think that there is you know, this is there's a rising rising tide here.
I mean, as you as you may be familiar with, Colorado was the first state to enact legislative qualified immunity reform last summer in June of 2020.
Their bill was specifically focused on law enforcement because it was part of a larger policing reform, you know, bill.
But you know, that was similar.
It was creating a state law cause of action against police officers who violate people's constitutional rights and then clarifying that qualified immunity is not a defense.
You know, also New Mexico, which of course was just enacted.
Also New York City.
The New York City Council created a city level civil rights law that, you know, again, is also specific to law enforcement.
But you know, this is the largest law enforcement organization in the country that has yet to be signed into law by the mayor.
But we expect that to happen soon.
And there are lots of other states that are, you know, considering this.
So I think that we're likely to see more and more states addressing qualified immunity reform in the near future.
Yeah, that's really great.
All right.
Well, it sounds like you got a problem back there.
I'm going to let you know, I just remember that they're doing fire alarm testing in my building today.
Oh, sure.
All right.
Well, listen, I'll let you go with that.
But thank you so much for your great coverage of this issue.
I really appreciate it.
Yeah.
Thank you for having me.
It's a pleasure to talk about it.
All right, you guys.
That's Jay Schweikert.
He is a research fellow at the Cato Institute.
And check out this important story.
Make it viral.
Would you?
Some good news for a change, huh?
New Mexico enacts landmark qualified immunity reform legislation for all public officials.
Cato dot org.
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