site banner

Culture War Roundup for the week of March 6, 2023

This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.

Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.

We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:

  • Shaming.

  • Attempting to 'build consensus' or enforce ideological conformity.

  • Making sweeping generalizations to vilify a group you dislike.

  • Recruiting for a cause.

  • Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.

In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:

  • Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.

  • Be as precise and charitable as you can. Don't paraphrase unflatteringly.

  • Don't imply that someone said something they did not say, even if you think it follows from what they said.

  • Write like everyone is reading and you want them to be included in the discussion.

On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.

16
Jump in the discussion.

No email address required.

Much of the criminal justice systems operates on an assumption (or rather, an aspiration) that prosecutors and law enforcement should be trusted to carry out their duties honestly. While I don't believe this assumption is worth much, it's the reality we live in given the limited avenues for redress available. For one, prosecutors and judges have absolute immunity for misconduct, and law enforcement has qualified immunity for misconduct (which, practically speaking is basically absolute immunity with a few extra steps Edit: as @Gdanning mentions here, I significantly overstated the equivalence here). If you get fucked over by any of them, tough luck. Two, law enforcement has a close working relationship with prosecutors, and most judges are former prosecutors. Because of how the adversarial system is structured, there's a systemic bias against ruling in favor of defendants' (read: criminal's) rights. This is especially a problem when you consider that literally the only source of search and seizure precedent comes by definition from criminals asking a court to ignore damning evidence because it was illegally seized.

I just described a system where the levers of power are held by a fairly cloistered group of people, and it all skews heavily on the side against the meek defendant. There are indeed some attempts to artificially inject fairness into the system. Because civil lawsuits are assumed (not always reasonably) to involve two opposing parties on roughly equivalent footing, the evidentiary standard there is preponderance, which is basically 50% plus one. But for criminal trials, where it's the full weight of the government bearing down on a single person, it's beyond a reasonable doubt, which is basically you better goddamn be real fucking sure. Another difference pertinent for this post is what would be referred to as Brady obligations, where prosecutors are obligated to turn over every evidence which might be helpful to the defendant (who, unlike a civil litigant, has no equivalent obligation to the other side).

For the most part, verifying that a prosecutor has met their Brady obligations is near-impossible. Prosecutors are considered part of law enforcement, and they naturally have access to an entire universe of information which the other side will never see (for example, details about ongoing investigations which would tip off the subjects if it was revealed prematurely) so whether or not they've turned over every Brady material is an exercise in trust. I have to trust that the prosecutors aren't lying, and that they reviewed all the evidence they have and made a fair assessment on whether or not it's exculpatory. This is why virtually every Brady scandal involves exculpatory evidence that came to light accidentally. A fuck-up, in other words.

And oh man was there ever a fuck-up.

This happened this week during the jury trial of Ethan Nordean, a Proud Boys leader charged with seditious conspiracy stemming from his actions in January 6th. I haven't followed his case at all, but his defense attorney just filed this banger of a notice regarding the testimony of FBI agent Nicole Miller. As a government witness, Miller has an obligation to turn over any written statements she made regarding the subject of her testimony (this is known as a Jencks obligation). FBI agents use an instant messaging system called Lync, and Miller handed over a spreadsheet with 25 rows of Lync messages. Miller testified that this was her entire Jencks obligations, and she denied withholding any messages about Nordean's conspiracy charges, denied withholding any messages about whether anyone listened in on attorney-client calls, and denied withholding any messages about whether any reports (dear heavens) were falsified. And so forth. Miller just said no, absolutely not, no way.

Normally this is where the story would end, except Nordean's attorney revealed that the spreadsheet Miller had sent contained about a thousand hidden Excel rows, many of which absolutely one hundred percent directly contradicted Miller's testimony. For example, there were messages about:

  • An agent asking Miller to edit a confidential informant report to remove mentioning the agent was present

  • An agent reviewing attorney-client communication about trial strategy

  • Agents openly expressing doubt about a Proud Boys leader's involvement in a conspiracy

And so on.

I'm certainly excited to see how Miller tries to get out of this vise. My assumption is that the prosecutor will dismiss charges against Nordean in a feeble attempt to make this go away (or a judge can do it for them, which is what happened with the Bundy ranchers).

It's certainly fucking funny that an FBI agent tried hiding Excel rows thinking they were deleted (this is known as the peek-a-boo fallacy). More seriously, FBI agents are acting this brazenly even though they're well aware how much public scrutiny is directed towards J6 cases. I think one can reasonably assume they'd have even fewer scruples in cases involving defendants no one gives a shit about.

Some jurisdictions (starting with North Carolina in 2004) have what's called an open-file discovery rule where everything in the case file (no matter how banal) is provided to the defendant by default. Tucker Carlson got access to and released footage of Jacob Chansley (aka QAnon shaman who was sentenced to 41 months in prison) calmly walking inside the capitol, which appears to contradict his charging documents. More relevantly, Chansley's attorney apparently never got that footage before. I assume the government will now argue that the footage they kept hidden wasn't that exculpatory but really, that should always be up to the defense attorney to decide.

Of course, even if open-file became the norm, law enforcement will get wise not to put incriminating statements on paper (hot tip: when doing FOIA requests, pay attention to any email or text that asks to speak on the phone about a sensitive subject). So beyond open-file discovery, I'd also keep riding my other cute little hobby horses and argue this is another reason to jettison qualified/absolute immunity. Anyone disagree?

As an update, (since I've mentioned it here), all found guilty for most of the relevant charges, with a few bits still being deliberated.

I'm certainly excited to see how Miller tries to get out of this vise.

The government's response to the Jencks material problems is here, and to the later revelation the defense's witnesses including confidential human sources working for the government that were not disclosed by the government until after trial commenced here. I'm not seeing any written orders specific to these motions; it's possible they were resolved orally during the trial.

So, uh, 'not very hard' and 'successful anyway'.

Thank you so much for the update and for the links. My prediction that this episode would result in a dismissal was off-base (although I guess there's always the possibility of appeal). I'll have to dig through the briefings and related record to figure out exactly why I was wrong. My initial guess is that I relied too heavily on how one side made its arguments. That said, I don't believe this changes much of my overall thesis though: bad conduct is extremely hard to ferret out.

Qualified immunity is absolute travesty, but I understand it protects from civil lawsuit in situations where it is not clearly established the government official was acting unlawfully. Here it is a clear case of perjury, which as far as I know is a criminal matter, and I think it is pretty clear to a law enforcement officer testifying in court that outright lying is not lawful? I don't think there's any principle that justify this, it's just how it happens that there's no consequences for government officials.

Unfortunately, an action being 'merely' criminal does not prevent QI from applying. See Jessop for some unusually severe examples, where the Ninth Circuit specifically held that :

The absence of “any cases of controlling authority” or a “consensus of cases of persuasive authority” on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. Wilson v. Layne, 526 U.S. 603, 617 (1999). Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins would be improper, they did not have clear notice that it violated the Fourth Amendment.

Cops are almost never criminally prosecuted for anything done in the course of their job (in part because prosecutors and cops work closely together), and perjury is virtually never prosecuted against anyone period. You're right that QI might not apply towards Miller's specific actions, because lying on the stand is clearly established as bad. However, I can't really articulate the specific harm that Miller's lying (what we know about) directly caused, so I'm not sure that Nordean can recover much. And because the discovery happened by accident, it doesn't really affect how other agents are deterred from pulling the same shit.

In terms of other consequences, I do expect Miller's career to be somewhat stunted. She can never again be called to testify in any case without the defense attorney being able to impeach her credibility by bringing up the Nordean trial saga.

But perjury is a criminal matter, is it not? So there shouldn't be the need to demonstrate anybody specifically harmed by it, at least in theory? In practice, of course, cops routinely get away with crimes much more heinous than perjury. I wonder though why there's no interest in prosecuting perjury at all and why we are still pretending testimony is worth anything if lying under oath has almost no consequences.

I wonder though why there's no interest in prosecuting perjury at all and why we are still pretending testimony is worth anything if lying under oath has almost no consequences.

Many reasons. Perjury is extremely difficult to prove because of the knowledge element: someone has to make a statement that they knew was false at the time. How do we know that they didn't just misremember, or that they were mistaken, or that they were misled? Etc. Getting slam dunk evidence otherwise is very rare.

The other reason is that if the lying was self-evident, the negative consequences are already ensured. A lying defendant gets convicted. A lying victim gets their aggressor acquitted. A lying businessman loses the contract dispute lawsuit. A lying cop will likely never get to testify again, which means basically permanent desk duty or finding another job. And so on.

This approach seems different from how the law works in other areas. If you steal something and you are caught, the law doesn't say "it's enough that we took back what you have stolen and also everybody knows you're a thief". It you forge a check - the law doesn't say "enough that bank detected it and didn't pay out anything". Usually restitution and reversing the immediate consequences of a crime is only a small part of what happens, and there's a punitive aspect which is aimed to deter people from defecting. Usually the argument is because otherwise there's no deterrent for me to not commit the crime - i.e. if I lie on the stand, worst thing they catch me and I lose the case. But if I tell the truth, I'll lose the case anyway, so there's no downside for me not to lie - absent the punitive deterrent. Why doesn't it apply in the case of perjury?

How do we know that they didn't just misremember, or that they were mistaken, or that they were misled? Etc. Getting slam dunk evidence otherwise is very rare.

But 95% of criminal convictions don't even see the trial - why nobody tries to at least get some guilty pleas on perjury?

As for knowledge - in the specific case Miller testified that the messages that she was part of don't exist. I think unless she proves she was struck by a bout of very convenient amnesia, it is pretty clear she knew the messages in fact existed. I mean, if somebody actually wanted to do it.

If you steal something and you are caught, the law doesn't say "it's enough that we took back what you have stolen and also everybody knows you're a thief".

This is actually often the case. Shoplifting is a hassle to prosecute unless it involves high-value items or becomes enough of a nuisance for the store. My shoplifting clients (almost always drug addicts) have gotten caught perhaps a dozen times for each prosecution they face. I've personally seen security guards forcefully take back the items and then let the person go because it wasn't worth calling the cops over it. Same with many other low-level crimes like trespassing or whatnot. Unless the business or the local authority is willing to eat the costs of enforcement (and certain places are if they're rich enough) a lot of petty crime will go unpunished.

(Side note: a lot of places explicitly prohibit their security from placing hands on thieves for lawsuits reasons, but not from the thieves, but rather from their workers getting injured).

But 95% of criminal convictions don't even see the trial - why nobody tries to at least get some guilty pleas on perjury?

It's just unusually hard to prove. Specific intent crimes are hard, proving materiality is hard, and combine that with all the other rules of evidence hurdles and it's rarely worth it. If there's clear evidence of perjury, they likely also committed other more serious crimes, so why bother? One recent prominent exception involved the police officer who arrested Sandra Bland, probably because it was a high profile case and the only thing they could really nail him on. The link cites an article that found between 1966 to 1970 there were only 335 criminal perjury cases total.

I think unless she proves she was struck by a bout of very convenient amnesia, it is pretty clear she knew the messages in fact existed. I mean, if somebody actually wanted to do it.

Miller's case is a slam dunk example of perjury, she would have no defense. The only remaining question is whether the prosecutors will bother.

The other reason is that if the lying was self-evident, the negative consequences are already ensured. .... A lying victim gets their aggressor acquitted.

A lying "victim" using the legal system to harass their innocent alleged aggressor already at least partially achieved their goal however. Not securing a conviction is a negative consequence in the sense that the harassment wasn't as severe as it could have been, but just getting through the process without sanction is still a net positive for the harasser.

This is true, but it's a hard balance to strike. For example there's this case from 2009 in Washington state where a woman claimed to have been raped at knifepoint. The cops didn't believe her and threatened her with criminal charges for filing a false police report if she didn't retract her story. She retracted, and it wasn't until many years later that they caught the rapist in another state and found in his possession photos of the woman tied up in her apartment — exactly as she first reported it.

In addition to the Bundy trial, I like pointed to the Ted Stevens fiasco, since it was even higher profile than anything else, very likely turned the Senate's 60th seat that year, and have even more clearly unlawful behavior from the FBI's agents that was even more clearly interested in convicting someone high-profile for something than actually getting the guilty.

And also because no one cares. Even among the right-wing, this isn't a cause celebre, or even terribly well-known; I assume the left has their equivalents, and I know some of them, and I know they're often forgotten.

Because of how the adversarial system is structured, there's a systemic bias against ruling in favor of defendants' (read: criminal's) rights. This is especially a problem when you consider that literally the only source of search and seizure precedent comes by definition from criminals asking a court to ignore damning evidence because it was illegally seized.

The other damning problem is that the innocent have everything to fear. "Ignore damning evidence because it was illegally seized" isn't just a hard ask for judges faced with the obviously guilty; it does nothing if the unlawfully-collected gains wouldn't be presented as evidence to start with, whether that's the police 'lawfully' essential property and taking months or years to return it, publicizing humiliating personal information and saying oops, or simply stealing things and never being responsible for it.

It's nice to hear that -- if everything works properly, which it doesn't always -- you might not get wrongly convicted by prosecutors who knew or had reason to believe you were innocent, but it doesn't actually undo the tremendous amount of harm that this sort of exploitative efforts can do even and especially to the innocent, in a system where there is not even a mechanism to try to get made whole.

More seriously, FBI agents are acting this brazenly even though they're well aware how much public scrutiny is directed towards J6 cases. I think one can reasonably assume they'd have even fewer scruples in cases involving defendants no one gives a shit about.

I'm not sure.

I mean, one easy and Occam-compatible explanation's that 90+% of investigatory paperwork never goes anywhere, 90%+ of pretrial paperwork any further than a grand jury, and it's just meant most cases -- whether 'good' or not -- even very egregious abuses aren't going to get caught or even inspected. And that includes most J6 cases. Chansley plead guilty, as a specific example. They don't care because most of the time it doesn't matter, and even when they do make a mistake 'the bad guys must be guilty of something'.

But another possibility is that regardless of how much public scrutiny their might by in terms of population numbers, there's not going to be any meaningful outrage in ways that matter, and more importantly the scrutiny that they do get they want. Even today, anyone defending Ted Stevens sounds, to mainstream readers, as a defense of hilarious bridge-to-nowhere corruption. Chansley is still absolutely guilty of leaving threats, in addition to just generally being a putz. Making a ton of Carlson viewers pissed isn't a downside, in the way that even getting a lot of well-lawyered ACLU fans would, especially if it simulatneously gets a lot of approval from a normally police-skeptical field. I don't mean to claim that this is an intentional plan, but I don't think you can reasonably look at the modern FBI and think anyone, even those at middle managements levels, are unaware of the political calculus.

That's optimistic, in a sense, compared to the 'FBI can't match up with Inspector Clouseau'-level failures, where there's a teeming morass of unobserved and unwhistleblown goatfucking behind every moderately difficult federal investigation. But it's a little more pessimistic, in that it would indicate a federal investigatory force that's quite happy to see politics as part of their day job.

So beyond open-file discovery, I'd also keep riding my other cute little hobby horses and argue this is another reason to jettison qualified/absolute immunity. Anyone disagree?

I'm not a fan of either doctrine, but ultimately I'm not sure how much they'd help, here. We're positing an environment where, despite basically zero personal or career punishment for even egregious cases, only the highest-profile and the most-lucky defendants catch wind of anything, and even of those most sound like conspiracy theorists. And even where no one presently in office would face serious social or political fallout, we still see serious resistance in even clear-cut cases.

In a world where both the state and the individual investigator or prosecutor could be liable for large amounts, does this result in more enforcement? Or does it result in a far heavier thick blue line, where every release to defense attornies goes through four layers of 'did you redact that important thing /right/' (and also conveniently distributing responsibility should it leak and a civil case show up!), and whistleblowers end up with mysteriously large problems (hopefully not with their brakes) or the feds blocking them?

But another possibility is that regardless of how much public scrutiny their might by in terms of population numbers, there's not going to be any meaningful outrage in ways that matter, and more importantly the scrutiny that they do get they want.

This is a fair point, speaking generally. I'd like to think that every new scandal of outright venality moves the impression slightly at the margins. And the scrutiny I'm referring to applies to the defense attorney's role as well. The federal public defender bar (private and public) have a well-earned reputation of being the gold standard in the field, and that's only maximized when each one knows that every filing of theirs is going to be picked apart by an interested public (as happened in the post above!). To your point however, despite a cavalcade of outrageous conduct, there hasn't been much broad appetite to meaningfully change how the FBI operates. Just like prosecutorial misconduct, any spike in interested remains niche and therefore easy to ignore.

In a world where both the state and the individual investigator or prosecutor could be liable for large amounts, does this result in more enforcement? Or does it result in a far heavier thick blue line, where every release to defense attornies goes through four layers of 'did you redact that important thing

I didn't think about this point and I have to concede that's a strong possibility. It's basically a battle of equilibria to see whether greater openness forces greater transparency or higher efforts to maintain secrecy.

It's a bit hard to parse, what was the agent's motivation here?

In any case, I believe this is not a peek-a-boo fallacy but merely preserving plausible deniability. Outright falsifying the record would have been more effective, but the cost in case of the original document surfacing would have been far greater. Here it is possible, with some reasonable cooperation, to pretend the rows were hidden for some innocuous technical reason, and the idea was that given the amount of data nobody will look very closely at it. A bit childish, but had a chance of working.

From the Politico story I saw linked elsewhere about this, it looks like Miller used some Excel filters to get the file to only show what they wanted but then forgot or didn't realize that filters don't actually remove any content.

After defense attorneys began to press Miller about the attorney-client messages on Wednesday afternoon, prosecutors objected, and Kelly halted the trial to permit the parties to debate the matter.

lolol this is apex whining

I can't think of any explanation except that it was a fuck-up. The original plan was to create a new log of messages with almost everything deleted and then pretend that's the only log in existence. The defense attorney would have no way of knowing any better. The plausible deniability idea doesn't make sense here because the hidden rows directly contradicted the testimony she gave in court (which Judges actually do tend to care about).

It's certainly fucking funny that an FBI agent tried hiding Excel rows thinking they were deleted (this is known as the peek-a-boo fallacy).

Serious lack of competence. Basic scheming of an entry level type requires that you concoct two sets of books, or Excel spreadsheets as in this case; one with the real data, and the edited one that only contains what you want outsiders to see. If Agent Miller couldn't even get this much right, is she really capable of doing her job? This is what happens when you hire to fill diversity quotas! 😁

Sarcasm off, seriously, that's ridiculous. You expect a moderate amount of being economical with the actualité when it's the cops or Feds giving their version of events, but that is both incompetent and infuriating. Heads should roll, but it probably will only start and stop with Miller if anything ever happens, She can't be the only one pulling this kind of stunt, and the superiors must know about it.

Basic scheming of an entry level type requires that you concoct two sets of books

Why?

Standard fraudulent accounting practice: make one book that shows records that let you dodge taxes, the other book keeps track of the actual money flow so that you don't get confused.

Serious lack of competence.

It's so incompetent, it makes me wonder if this document was prepared by a whistleblower technician.

Probably not- it is the government, and probably has lots of people who are simply lazy and expect not to be caught taking shortcuts.

Regarding the Nicole Miller lync messages - what are the chances a mistrial happens?

I can’t believe the Govt is spinning it that message regarding deleting evidence is about something related…

This is a bit splitting hairs over lingo but you're probably not asking about mistrials. They're virtually never in the defendant's favor because it gives the prosecution an opportunity to start over, which generally gives the government an advantage since they had a glimpse into the defense strategy. The ideal resolution here would be a dismissal, which would be final because jeopardy has attached due to the jury trial starting.

law enforcement has qualified immunity for misconduct (which, practically speaking is basically absolute immunity with a few extra steps)

Not really. A Reuters study found that, in excessive force cases against police, appellate courts granted qualified immunity in 44% of cases in 2005-2007 and 57% of cases in 2017-2019. Another study found lower numbers. And Short Circuit's weekly case summary usually includes a fair number of denials, as well as grants.

The grants of immunity are nevertheless too frequent, IMHO. But it is hardly automatic.

In how many of the cases where they did not grant qualified immunity, was it because they dismissed the case on other grounds first?

I believe the second link includes relevant data on that IIRC.

These are great resources and it's a big omission on my end that I neglected to find them on my own. Had I been asked to estimate how often QI is granted, I probably would've said 70-80%, which is clearly erroneous on my part. I'm guessing my mistake was probably borne out of the availability heuristic combined with never thinking to conduct a systemic research (something I regularly excoriate others for not doing). QI is still prevalent, and I do wonder how much it discourages marginal cases from ever being filed. Either way, I was wrong with my comparison so thanks for bringing this to my attention, I will edit my post above.

QI is still prevalent, and I do wonder how much it discourages marginal cases from ever being filed.

That's a good question, though there do seem to be plenty of plaintiff's attorneys who make a living filing these types of suits. But maybe less so in, eg, the Fifth Circuit, which one of the links indicates has a high level of QI grants.

It's true that there are plenty of attorneys who make a good living off of §1983 (see Benjamin Crump) but that's not really indicative of anything on its own. Lawyers are able to shift between practice areas fairly easily, and so each practice area has a self-correction mechanism in place in case any particular market gets too saturated. Ideally we'd compare the number of attorneys pursuing §1983 claims to some sort of baseline expectation, but I admit I don't have a good suggestion.

My law practice is not criminal-focused, and I'm not an expert on immunities. So caveat emptor.

With that said, your post really reads like a really interesting story about open and obvious law enforcement malfeasance, with a complete non-sequitur tacked on at the end. Ending qualified immunity (as I understand that doctrine to exist) would not change the result of this investigation. It would not provide any additional substantive or procedural rights to Mr. Nordean with regard to his membership in the Proud Boys, his actions on or relating to J6, or any other conduct of his that is at issue here.

The only thing it would do would be to enable Mr. Nordean to personally sue individual agents/officers for money damages arising from their bad conduct. And given that law enforcement is a decently-paying, but not overwhelmingly-lucrative profession, the likelihood of Mr. Nordean actually being able to recover any sizeable amount pursuant to a judgment in his favor would seem to be rather small.

Getting money damages against the agents wouldn't get them fired, and such a judgment wouldn't even necessarily result in policy changes at the agencies in question. So I fail to see how ending qualified immunity would resolve the issue of FBI agents behaving badly and hiding Brady info. Even if you want to argue that exposing agents to individual liability would incentivize them to change their behavior, I fail to see how that kind of bankshot is better than the more obvious remedy of directly attacking the problem through suits against the governmental agencies themselves (e.g. "pattern and practice" civil rights litigation).

Can you tell me what I'm missing?

The purpose of these lawsuits isn't so much to make the victim whole as it is to serve as a deterrent for future bad behavior. No, a police officer probably isn't ever going to be able to pay a two million dollar judgment. But in some ways that's a stronger deterrent—any officer who gets such a judgment against him will spend the rest of his life hiding from it. He wakes up every morning not knowing if the contents of his bank account will gone, the subject of a court levy. Any property he owns will have liens on it. If he lives in a state with wage garnishment, he'll see 25% of his paycheck cut out until the judgment is paid off. And since he's never paying it off, it's going to accumulate interest at a statutory rate (usually around 6%) every year; on a cop's salary, he won't be able to even service the interest on a multi-million dollar judgment let alone make a dent in the principle. And bankruptcy? Judgments for intentional torts aren't dischargeable. And if by some grace of God it's not an intentional tort, he better pass the means test for Chapter 7 because he's over the debt limits for a 13 and will be forced into an expensive and grueling personal Chapter 11.

The thought is that police departments will be forced to provide liability insurance to cover such verdicts, and as such will be under pressure from insurance companies to make sure that officers with a ton of complaints will be too risky to insure and this will force police departments to either get rid of them or put them on desk jobs where they can't do any real damage. The reality is that joint and several liability would largely protect individual officers anyway; since most lawsuits will also name the department as a defendant the department will be liable for the whole award regardless of its individual contribution to the damage. The vast majority of states have limited this doctrine under the guise of tort reform, but one area where it's still largely unchanged is intentional torts. That being said, if departments can offload the insurance burden on to individual officers, they might do it.

I think part of the reason Miller was comfortable lying so fragrantly is because she's not used to facing (and can reasonably expect to never) any real sort of consequence for misconduct. Part of that reason is because of the insular nature of the field (who among the people she works with are going to rat her out?) and part of it is the lack of discouragement that comes from real accountability (QI). Getting rid of QI on its own won't be enough to help uncover the misconduct, for that you need more open discovery rules such as the open-file rule. I'm indifferent on whether agents or their agency should burden the liability. At minimum, I'd want to see something closer to law enforcement facing the same accountability rules as doctors and I don't care if it's hospitals or malpractice insurers that shoulder the financial hit. Another option is to have a more robust method of criminally prosecuting obvious malfeasance, but given how the apparatus is currently constructed (cops and prosecutors are besties), I don't have a viable plan to put that into action.

I want to hear the steelman for qualified immunity, because the most salient times it comes up are when it’s being abused. In other words, I have the urge to play devil’s advocate, but I’m underqualified.

As for the case itself—good God, the FBI is like a parody of itself. It’s on par with the Alex Jones blunder. I am struggling to imagine the train of thought. The benefit seems so low that the expected cost, the risk of any real consequences for getting caught, must have been minuscule. For all I’ve said about the unlikelihood of election fraud, at least the motive was obvious.

This is what the Supreme Court said:

When government officials abuse their offices, "action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees." Harlow v. Fitzgerald, 457 U. S., at 814. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Ibid. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. See, e. g., Malley v. Briggs, 475 U. S. 335, 341 (1986) (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"); id., at 344-345 (police officers applying for warrants are immune if a 639*639 reasonable officer could have believed that there was probable cause to support the application); Mitchell v. Forsyth, 472 U. S. 511, 528 (1985) (officials are immune unless "the law clearly proscribed the actions" they took); Davis v. Scherer, 468 U. S. 183, 191 (1984); id., at 198 (BRENNAN, J., concurring in part and dissenting in part); Harlow v. Fitzgerald, supra, at 819. Cf., e. g., Procunier v. Navarette, 434 U. S. 555, 562 (1978). Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the "objective legal reasonableness" of the action, Harlow, 457 U. S., at 819, assessed in light of the legal rules that were "clearly established" at the time it was taken, id., at 818.

Note also that, if it is too easy to successfully sue public officials, then those officials will be extremely reluctant to pursue miscreants with deep pockets.

Note also that, if it is too easy to successfully sue public officials, then those officials will be extremely reluctant to pursue miscreants with deep pockets.

I hadn't considered this point before. It seems salient but can you expand upon it a bit?

Well, it seems to me that, in the absence of some sort of immunity, a DA, police department, etc, which had a choice of a) investigating a crime supposedly committed by a wealthy person; and 2) 1nvestigating a crime supposedly committed by a non-wealthy person, would be foolish to choose #1. They would risk being personally sued if they made any mistake at all, or even if they didn't; a wealthy person can afford to file frivolous lawsuits for the purpose of harassment.

I want to hear the steelman for qualified immunity, because the most salient times it comes up are when it’s being abused.

I think there's a place for something resembling a minimal version of qualified immunity: we should protect civil servants from criminal prosecution for carrying out their duties in good faith, or we won't be able to hire any good civil servants. Minor mistakes in the moment, especially for a high-stakes roles like police officers, are unavoidable.

But I will agree with you that current jurisprudence goes way too far in assuming good faith.

I want to hear the steelman for qualified immunity, because the most salient times it comes up are when it’s being abused. In other words, I have the urge to play devil’s advocate, but I’m underqualified.

I'm not well-acquainted enough with the facts and arguments to feel comfortable engaging someone who is, but in case no one else steps up the plate: I think the idea is that you don't want civil servants like police officers to face the possibility of ruinous civil lawsuits for just doing their job and making some sort of honest mistake. I think (although I'm not as confident about this) that you can instead civilly sue the department as opposed to the individual officer. That spreads out the risk and costs of litigating.

It's also extremely important to point out that qualified immunity has absolutely nothing to do with protecting anyone from CRIMINAL culpability. Officers who commit crimes are routinely brought to justice and qualified immunity has no bearing whatsoever on any of it.

the risk of any real consequences for getting caught, must have been minuscule

Yep. It's extremely rare for me to find evidence of police misconduct in my own cases but one of them happened to get news coverage because I got a great ruling all thanks to some very very lucky video footage. But when I first watched the footage I couldn't believe I was interpreting what I was seeing correctly. Everyone seemed to chill that I wondered for a long time "it's not plausible that they're casually [redacted] on video, I must be misunderstanding something."

I'm surprised that you're giving the FBI any good faith at all. Not intending this as some kind of gotcha, but did you pay attention to the crossfire hurricane scandal and the Mueller probe? There's so much bad faith and naked criminality in the FBI that I can't imagine trusting them at all (to say nothing of their hobby of manufacturing terror plots).

Crossfire hurricane scandel? Where can I read more about this?

That's a good question and I honestly don't have a solid resource for you. I followed the scandal as it developed over time, and that means that I can't really give you a single unified source on it - but for the record, the Crossfire Hurricane probe was what eventually got turned into the Mueller special counsel.

Where do you see me giving the FBI any good faith? The post your responding to was a story expressing skepticism to the point of disbelief because the misconduct I witnessed was conducted so casually that I wondered if I was missing something (I wasn't).

Oh, I meant that initial "it's not plausible that they're casually [redacted] on video, I must be misunderstanding something." reaction. That's far more faith than I'd give the FBI.

I don't know if this is missing context but I was talking about my work as a criminal defense attorney. I wasn't talking about FBI agents, these were just some random detectives. Across hundreds and hundreds of cases, I watch a lot of very boring video footage that mostly shows my client acting like a total dipshit and the cops being dutiful about their jobs and I get lulled into a sort of slumber. So when I do see clear instances of casual misconduct, for a moment it feels like I'm the victim of a optical illusion because it's just so damn unusual to get it on video.

The good news in this [real case I'm being super vague about] is that my job is explicitly not to assume good faith. So I conducted my own investigation and felt confident enough I did my homework before launching my broadside motion. The cops did not do well during cross-examination and the judge agreed with my argument and explicitly found them to be lying. They were very much not happy with me given the career consequences involved.