Political Philosophy and Ethics discussion

It occurs to me that it might be good to try to discuss application of principles of Political Philosophy to contemporary issues like current struggles over police behavior in our cities. What would Plato, Aristotle or Polybius have said about this issue? How about Karl Marx?

I am reminded of Plato's question, "Who guards the guardians?" (or words to that effect--I'm quoting The Republic from memory).

In my former life as a litigation lawyer, I often represented municipalities, local public officials, and sometimes police officers in lawsuits brought against them by individuals or business entities. I was not as involved in police lawsuits as I was in land use, employment, and other municipal litigation, since others in my (successive) law firms had had previous experience as prosecutors or police officers, and they normally handled the police cases. But I had enough experience defending municipal police to be amazed regarding the recent revelations about excessive force directed by police officers against others, especially racial minorities. How do these police departments get insurance coverage? A couple of big lawsuits against municipalities would, in my experience, result in their losing their liability insurance. The plaintiffs' lawyers must salivate at the realization that this kind of thing still goes on and that their lawsuits are not sufficient to deter it.

This article discusses new proposed legislation that would essentially federalize all American police forces, exponentially increase incarceration, remove virtually all protections that people have from abusive police practices, and essentially repeal legal remedies against improper police practices. If such legislation becomes law, it will be interesting to see what the U.S. Supreme Court does with it from a constitutional perspective. And I would like to know what Senator Rand Paul and other purported libertarians have to say about it. If someone has additional information about this, please post it in this topic. All I know about this proposed legislation is what is in this article. While the media are being distracted with the latest Trump scandals, the Congress is quietly making radical changes in our constitutional and legal order.

On July 7, 2017, a panel of the U.S. Court of Appeals for the Third Circuit held, in a precedential decision (mandatory authority for future Third Circuit panels and District Courts), that bystanders have a First Amendment right to record public police activity. The decision can be located here.

Judge Thomas L. Ambro wrote the majority opinion, which was joined by Judge L. Felipe Restrepo. In a separate opinion, Judge Richard L. Nygaard concurred in part and dissented in part. Judge Nygaard concurred with the majority opinion's holding that bystanders have a First Amendment right to record police activity. He dissented, however, from the majority's further holding that the individual officers being sued were protected by the doctrine of qualified immunity.

The federal doctrine of qualified immunity, originally promulgated by the U.S. Supreme Court many decades ago but continually refined by that Court up to and including the last few years, states that in a lawsuit brought under 42 U.S.C. § 1983 (the main civil rights statute authorizing private lawsuits against local governments and their officials and officers for alleged violations of the U.S. Constitution), individual governmental officials and officers sued in their individual capacities are not liable unless the court finds that the constitutional right in question was "clearly established" before the time the alleged constitutional violation was committed. To be "clearly established," a constitutional right must have been recognized by the U.S. Supreme Court, by the U.S. Court of Appeals for the locality of the conduct (in this case the Third Circuit Court of Appeals), and/or by a "robust consensus" of federal appellate decisions around the country. And a constitutional right must be "clearly established" not only in a general sense but also in the context of a type of fact pattern that bears some resemblance to the factual circumstances alleged by the plaintiff in the pending case. The present decision will constitute "clearly established" law for any subsequent Third Circuit cases involving police action against recording bystanders as long as the operative conduct occurred after the date of the decision.

See Judge Ambro's majority opinion and Judge Nygaard's separate opinion for further details.

This Third Circuit panel did not reach the question of whether the City of Philadelphia was liable, since the District Court had not addressed that question. Rather, the District Court held that the Plaintiffs had not shown a First Amendment violation, thereby absolving both the City and the individual officers. Because the Third Circuit held that a First Amendment right existed under these circumstances, it remanded the case to the District Court for the latter's determination of whether the City of Philadelphia could be held liable. In this connection, it should be observed that a municipality cannot be held liable under § 1983 on a theory of vicarious liability. On remand, the Plaintiffs will have to show that the City's own policies and/or procedures were a proximate cause of the constitutional violation.

During my erstwhile life as a litigation lawyer, I handled hundreds of cases brought under 42 U.S.C. § 1983, many of which also involved the doctrine of federal qualified immunity. In reading the present case today, I observed that qualified immunity law has been refined somewhat since my retirement from law practice a few years ago. However, the essential principles have remained the same.

J wrote: "If I understand things correctly lawsuits don't really matter to your average cop on the beat. In the end the city, county, or state pays the bill. The officer in question most likely won't be fire..."

Your understanding may be correct for large cities that are self-insured, except that I have noted from media reports that the police officer in question often is terminated or otherwise seriously disciplined after a due process hearing (required by constitutional law and often a subject of collective bargaining agreements). My experience is mainly with smaller local governments that have liability insurance policies. And my experience is more in the public officials area (land use, employment, etc.) than in police liability. What I saw often happen is that when municipalities had one or more major lawsuits that resulted in large settlements or judgments (or even high defense costs), their insurers would either decline to renew coverage or would substantially increase insurance premiums. Moreover, insurance applications would routinely ask questions about prior settlements and judgments as well as questions about training. Insurers of municipalities have a vested interest in being sure that their insureds do not commit acts that result in large damage awards (by way of either settlement or judgment) and defense costs. Accordingly, especially with regard to law enforcement liability policies, they usually want to know the municipality's training practices and procedures as well as information about past judgments and settlements. The dynamic may be different with large, self-insured municipalities. I was, however, involved in the defense of one large municipality that had a special law enforcement insurance policy for a major event. Although I cannot, for reasons of client confidentiality, disclose any details, the insurer's reaction to the ensuing lawsuits was not inconsistent with what I stated above regarding smaller, regularly insured municipalities. For insurance companies, it's all about the dollars and cents.

J wrote: "Ok that does make sense, I constantly hear about cops in high profile assualt/murder cases having been fired from other counties and districts. Which makes the public wonder why they got hired as a..."

I don't know the answer to that question. I would assume that the particular police department would investigate the past employment history of their police applicants, but from you say that apparently doesn't always happen. Again, the entire scenario might be different in big cities than in smaller localities. The smaller police departments sometimes lack legal sophistication (though they are almost always advised by a regular municipal attorney), while the police departments of larger cities may be too sophisticated in knowing how to work the system. It's all a bit of a mystery to me. Perhaps there is another member of this Goodreads group who has additional information.

No Justice, No Peace is a problem because schools won't teach students to refuse searches of their cars and homes, and to refuse to answer questions. Schools teach the opposite: to comply and obey, despite one's constitutional rights. It is causing a police state. The best way to avoid problems is to actively avoid cops. While driving a car that means not letting a cop get in a position where he can pull you over (not letting one get behind you). It Can Happen Here

A momentous thing happened this week: The grand opening of the The National Memorial for Peace and Justice in Montgomery, Alabama and the parallel opening of The Legacy Museum a fifteen minute walk from the Memorial and a ten minute walk from the State Capitol of Alabama in Montgomery, the capitol city of the Confederacy. These projects have been compared to the Holocaust Memorial in Berlin, telling as they do the story of how slavery in America set the stage for, on the one hand, an acceleration in the industrial revolution powered by slave power and, one the other, the culture of white privilege and white nationalism that is very much alive today and to which we partly owe the election of a malignant narcissist to the Presidency of the United States, a nation founded, as we often say, on liberty, equality and justice.

In fact, as I have said elsewhere, The United States of America was founded not on “liberty, equality and justice” but; to the extent that its very existence was based on extermination of native peoples of the North American continent and on the labor of Africans impressed into slavery; it was rather based on genocide. I know that these remarks may well have been found to be unkind by many here. I think that to understand the truth of the matter, we need to listen to the words of those whose ancestors were exterminated and enslaved. Here the words from the conclusion of the text “Lynching in America” available on the website of the Equal Justice Initiative, whose tireless efforts have brought us the memorial and museum in Montgomery:

"Lynching in America was a form of terrorism that has contributed to a legacy of racial inequality that our nation must address more directly and concretely than we have to date. The trauma and anguish that lynching and racial violence created in this country continues to haunt us and to contaminate race relations and our criminal justice system in too many places across this country. Important work can and must be done to speak truthfully about this difficult history so that recovery and reconciliation can be achieved. We can address our painful past by acknowledging it and embracing monuments, memorials, and markers that are designed to facilitate important conversations. Education must be accompanied by acts of reconciliation, which are needed to create communities where devastating acts of racial bigotry and legacies of racial injustice can be overcome."

The Equal Justice Initiative was founded by Bryan Stevenson, a Harvard Law School and Kennedy School of Government graduate. The EJI initially provided legal defense for disenfranchised defendants in Alabama charged with the death penalty. He used the proceeds from a MacArthur (“genius”) grant to fund initial efforts by the EJI. His growing organization has since pursued an investigation that has identified the sites of over 4,000 lynchings of African heritage people in the South over the period from the Jim Crow era to the 1950s.

Montgomery is now a must-see tourist destination for a lesson in American history. From the all-white Capitol building next to the White House of the Confederacy visit the Dexter Avenue Baptist church from which Martin Luther King led the Montgomery bus boycott and the Rosa Parks museum. We now have a memorial and museum dedicated to the legacy of American racism. As Stevenson has said, the purpose of these remembrances is not to punish America, but to remember truthfully the history that has formed the country that the United States remains today. If we do, perhaps that “liberty, equality and justice” thing might actually come to pass.

Randal

Randal wrote: "A momentous thing happened this week: The grand opening of the The National Memorial for Peace and Justice in Montgomery, Alabama and the parallel opening of The Legacy Museum a fifteen minute wal..."

Yes, all that talk about "American exceptionalism" needs to be qualified by the historical truth. We have been exceptional in many ways, not all of them good.

I have just put this book on my “to read” list: Alexandra Natapoff, Punishment without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (New York: Basic Books, 2018).

The book description states:

Punishment Without Crimeoffers an urgent new interpretation of inequality and injustice in America by examining the paradigmatic American crime: the lowly misdemeanor. Based on extensive original research, legal scholar Alexandra Natapoff reveals the inner workings of a massive petty offense system that produces over 13 million cases each year. People arrested for minor crimes are swept through courts where defendants often lack lawyers, judges process cases in mere minutes, and nearly everyone pleads guilty. This misdemeanor machine starts punishing people long before they are convicted; it punishes the innocent; and it punishes conduct that never should have been a crime. As a result, vast numbers of Americans--most of them poor and people of color--are stigmatized as criminals, impoverished through fines and fees, and stripped of drivers' licenses, jobs, and housing.

For too long, misdemeanors have been ignored. But they are crucial to understanding our punitive criminal system and our widening economic and racial divides.

There is a good review (here) of this book in the November/December 2019 issue of The Federal Lawyer. That review will be accessible at no cost to nonmembers of the Federal Bar Association (or nonsubscribers to the magazine) only until the January 2020 issue of The Federal Lawyer is published.

The police murder of a handcuffed person in Minneapolis a few days ago demonstrates that institutional racism still exists in this country. The police officers involved have been fired, and murder charges have been brought against one of them. Criminal charges may also be brought against some or all of the others.

With regard to the violent riots that have occurred since that event, it is my understanding, based on news sources, that this violence has been perpetrated, led, and/or fomented by extreme right (White Supremacist) or extreme left white people. In my view, the local authorities should arrest and identify all such people. Those who have crossed interstate lines are also subject to FBI jurisdiction.

Shouldn't be hard to locate, apprehend, and identify rioters these days. It's probably all captured on video...

Here in Salt Lake we had violent protests which were mostly led by young white people. The video shows some POC being involved in the turning over of a police car, but the point was made that the POC who were leading the original peaceful protest were begging them to stop because it was not meant to be violent. It makes you wonder- what is the motivation of those who started the violence? Was it mob mentality? Young people who showed up to “have fun”? Someone with a not so good motive trying to make the protesters look bad?

I've actually spoken to some white supremacists. Nauseating experience. Their bewildering mindset is that 'violence against Caucasian-Americans goes deliberately under-reported' by the 'liberal-controlled news-media'.

I can't begin to convey to you all here, the myriad ways in which I attacked this poppycock in the dialogue which ensued. Argued myself hoarse. But, nothing works against such stonewalling.

Free books are available to download on race, protests, policing and civil rights from Cambridge University Press until 12 July 2020.

Please, move this message to a more suitable section, as you deem fit. Cheers.

QUALIFIED IMMUNITY: TAYLOR V. RIOJAS, U.S. Supreme Court, November 2, 2020

Lost in the news about this week’s election was the announcement, on November 2, 2020, of an important decision of the U.S. Supreme Court on qualified immunity. Recall that qualified immunity has been a big issue of contention in this year’s protests over police brutality. In this case, the Court’s per curiam opinion held that the doctrine of qualified immunity does not protect prison officials sued in their individual capacities for housing a prisoner in an unsanitary cell. The operative paragraphs are as follows:

The Fifth Circuit erred in granting the officers qualified immunity on this basis. “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time. See Hope, 536 U.S., at 741 (explaining that “‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’” (quoting United States v. Lanier, 520 U. S. 259, 271 (1997))); 536 U. S., at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment). The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency. Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration. And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells. See, e.g., 946 F. 3d, at 218 (one officer, upon placing Taylor in the first feces-covered cell, remarked to another that Taylor was “‘going to have a long weekend’”); ibid., and n. 9 (another officer, upon placing Taylor in the second cell, told Taylor he hoped Taylor would “‘f***ing freeze’”).

Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution. [Footnote omitted.] We therefore grant Taylor’s petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand the case for further proceedings consistent with this opinion.

The decision was 7-1, with only Justice Thomas dissenting. Justice Amy Coney Barrett took no part in the consideration or decision of this case.

A September 22, 2021 Politico article (https://www.politico.com/news/2021/09...) addresses, in some detail, a proposed amendment to the Minneapolis city charter that would overhaul the city’s police department in line with demands by activist groups. The article also discusses opposition to the amendment by the Minneapolis mayor, Minnesota’s governor, and Senator Amy Klobuchar.

CRITICAL THINKING vs. IDEOLOGY AND GROUPTHINK

This inaugural February 5, 2023 New York Times column by David French is a good exposition of the perils of ideology and groupthink, with particular application to police and educational issues: see https://www.nytimes.com/2023/02/05/op.... (As a result of my New York Times subscription, the foregoing link can be accessed without charge for fourteen days, notwithstanding the usual New York Times paywall.)

I am cross-filing the present comment in the “Reason, Informal Logic, Evidence, and Critical Thinking,” “Education,” and “Police” topics of this Goodreads group.

In NY state, the governor has authorized State Troopers and NY National Guardsmen to patrol New York City subways due to the soaring crime rate.

Subway authorities had previously vowed that 'adding overtime hours for local transit police (notwithstanding the city budget crunch) and 'installation of more surveillance cameras' would abate the crisis .

Newspaper headlines just getting zanier and zanier. I'm no expert on New York City (not being a native) but I'm unsure whether such a thing has ever happened before?

Chicago riots, LA riots, New Orleans (hurricane) and even DC --but 'troops' keeping order in an East Coast metro area?