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naraburns  nihil supernum  1yr ago (text post)   32430 thread views

Culture War Roundup for the week of February 13, 2023

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Remember Seattle's CHAZ/CHOP? After the place was cleared, a bunch of local businesses and property owners sued the city and now they all reached a settlement. One part that definitely didn't help Seattle were tens of thousands of deleted text messages:

The city of Seattle has settled a lawsuit that took aim at officials’ handling of the three-week Capitol Hill Organized Protests and further ensnared the former mayor and police chief, among others, in a scandal over thousands of deleted text messages. The Seattle City Attorney’s Office filed notice of a settlement Wednesday in U.S. District Court, just three weeks after a federal judge levied severe legal sanctions against the city for deleting texts between high-ranking officials during the protests and zone that sprung up around them, known as CHOP.

[...]

Attorneys for the more than a dozen businesses that sued the city, led by Seattle developer Hunters Capital, sent a series of letters to the city in July 2020 — after another lawsuit over the violent police response to the protests — demanding that any evidence pertaining to the city’s alleged support and encouragement of the zone’s creation be retained, according to the court docket and pleadings.

U.S. District Judge Thomas Zilly concluded last month that officials ignored the notifications, sending the so-called Hunters Capital lawsuit to trial on two of five claims and dismissing three others. In doing so, Zilly issued a blistering order that leveled crippling sanctions against the city for the deletion of tens of thousands of text messages from city phones sent between former Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other ranking city officials during the protests.

The judge found significant evidence that the destruction of CHOP evidence was intentional and that officials tried for months to hide the text deletions from opposing attorneys.

Is Alex Jones the appropriate comparison here? IIRC, Jones was perceived as causing harm because unrelated people harassed the people he was talking about, and the highly unusual scale of the penalty was justified by claiming that he failed to comply with the court's instructions in delivering evidence to the plaintiffs. Here the scale of the harm is much higher, and the connection to those committing it plausibly much more direct.

Does it really come down to "government agents are above the law?"

The scale of the punishment had exactly zero to do with his failure to comply with discovery. That failure resulted in a default judgment on the issue of liability alone.

The scale of the harm is not greater here. The parents were subjected to years of egregious harassment. In contrast, the CHOP was in existence for less than a month.

  • -14

How many people did Alex Jone's listeners shoot as a result of the Sandy Hook Controversy? How many did they kill. How many business did they force out. How many buildings did they burn?

Temporal length is not the only means of measuring "damage."

No, temporal length is not the only measure of damage. That is why I said "egregious harassment."

How many did they kill.

None, but the Seattle lawsuit in question did not seek damages for the death of anyone, so that is irrelevant.

How many business did they force out.

As I recall, many of the Sandy Hook parents were forced out of their homes.

How many buildings did they burn?

None, but the lawsuit does not allege that the CHOP people did so either, so that is not relevant.

As I noted earlier, proving damages was going to be difficult for the Seattle plaintiffs, and if they had any realistic expectation of being able to prove huge damages, they would not have settled (of course, we don't know yet how large the settlement is; perhaps the settlement is indeed huge).

As I noted earlier, proving damages was going to be difficult for the Seattle plaintiffs, and if they had any realistic expectation of being able to prove huge damages, they would not have settled (of course, we don't know yet how large the settlement is; perhaps the settlement is indeed huge).

Everything you've said seems correct, as far as it goes. Do you see the disconnect between the questions being asked, and the answers you're providing, though? If so, do you think that disconnect is worth bridging?

To spell it out a bit, the core question you're responding to, as I understand it, is "is this outcome just, and if not, what went wrong?" Many here, myself included, believe that the city either directly or indirectly facilitated a very, very serious crime, and we would like to believe that our existing social mechanisms are capable of holding those who did so responsible. If they aren't going to be held responsible, it would be good to examine why that is: did the plaintiffs file the wrong type of suit? Hire the wrong lawyer? Something else?

People balk at the plain reading, which is that in many places in this country, state and local governments will allow leftist thugs to threaten, beat and murder ordinary citizens, and then carefully avoid investigating, arresting or prosecuting those responsible, either because they're too afraid or because they are allied with the thugs. Most people here lack legal training, but retain a belief that the situation isn't quite so bad that large-scale insurrection and public murder can be swept under the rug by the powers that be so long as the criminals are their criminals. So when they see exactly that happening, they grope for some alternate explanation, some way to rationalize the apparent madness. Responses like yours, while impeccably factual, do not actually resolve the deeper question.

Okay, so the local government allowed insurrection and murder, and then they destroyed large amounts of evidence of their deliberations and orders when they were sued over it. What follows? What should follow? What should we learn from this incident?

If they aren't going to be held responsible, it would be good to examine why that is

The most obvious answer is that you're legally shit out of luck if the government fails you. @gattsuru posted clear and egregious examples of governments utterly failing at their most basic duty of protecting their citizens, including Warren v. DC. That's a case where three women called the police during a home invasion. The cops showed up, casually looked around, then shrugged and left. The three women were beaten and raped over the next 14 hours. SCOTUS told everyone to pound sand because the state doesn't owe you shit.

Though practically abhorrent, the ruling is legally well-founded. With sovereign immunity as the well-established default, there's nothing within the four corners of the constitution that imposes any obligation on the state to lift a finger. The attenuated recourse is that maybe someday enough people are pissed that they get voted out of power. Passing a law or an amendment could fix this issue, but there isn't much appetite for it.

I remain deeply ammused that not only is "Social Contract Theory" bunk, but its official court doctrine that its bunk.

The state is under no obligation to protect you. You pay taxes and obey it because you are its slave. There is no exchange of of any good or service for you're obedience... you're just a coward who obeys because you're afraid

I actually think the federal government had an obligation to intervene under the Republican government guarantee. CHOP claimed to be a new government that failed that guarantee and therefore there was an obligation by the federal government to crush this new government.

the core question you're responding to, as I understand it, is "is this outcome just, and if not, what went wrong?"

Well, if that is the question, it is a bit misguided, in the following sense: The Seattle lawsuit was not seeking justice in the abstract; it was seeking compensation for the financial losses suffered by a very specific set of plaintiffs. You asked, "Is Alex Jones the appropriate comparison here?" -- The answer to that has to be "no," because the damages suffered by the plaintiffs in the two cases is very, very different. So, of course the outcomes will be very different (though we don't yet know the precise outcome of the Seattle case).

Responses like yours, while impeccably factual, do not actually resolve the deeper question.

No, but it wasn't meant to. That deeper question is not a legal one, so the comparison to Alex Jones is not particularly fruitful. Whether the Seattle govt officials should be punished for the larger ostensible harm is a political question that ultimately must be decided at the ballot box; in contrast, whether Alex Jones should pay for the damages suffered by the parents is very much a legal question.

I think the objections you bring are reasonable and accurate: the people in this trial represent a handful of businesses with relatively minor harms over a shorter period.

There's a deeper question that is, if not legal, at least practical rather than political: under the neutral rules of our justice system, is there anyone bringing comparable tort here as in Jone's case? And that's actually kinda interesting, because there are!

Both the mother and father of Lorenzo Anderson, the 19-year-old killed at CHOP, have brought separate torts against, and while the mother's case is unlikely to succeed, the father's case received a half-million settlement. The father of Antonio Mays, the 16-year-old killed later in CHOP, only recently filed notice for a lawsuit; I'm not able to find much other information about that, or about the 14-year-old killed at the same time.

There's still some fun questions here that are descriptive, rather than normative, underneath that!

Why are these cases not being brought quickly and at high profile, and sometimes not being brought competently or at all? (The rioting goon squads are often judgement proof and difficult to identify for either political alignment, but where progressive defamation tends to mix a very distributed message by a variety of actors where the rich ones near-universally have deep legal defenses, Jones had a lot of cash and an obvious single name and a shallow/incompetent/intentionally-bad legal defense, and you don't even have to notice where the judges have a skeptical eye, or how the politics of the legal profession might have made pro bono or contingency services more available in one case than the other.)

Others are legal, rather than political -- are there no state claims that would not be subject to federal qualified immunity or state discretionary immunity doctrines, and if so, why are they not used against politicians and police in cases like this? (The Washington Tort Claims Act is theoretically broadly available, and there are relevant torts, but even after a successful trial judgement can not be served against the state against the will of its legislature, and the state attorney general is required to provide costs for individual state employee defenses if "purported to be in good faith" and "in the scope of official duties", and "any employees who receive such a defense can not have a valid judgement executed against them" instead being covered by the state at its choice.)

Didn't people get murdered in CHOP/CHAZ? It may not have lasted long, but there was quite a bit of damage.

In the western legal tradition, violent crime is not a tort, or at least not exclusively a tort. If Brown murders Jones, the case is The State of Maryland vs Brown not Jones vs Brown. This is because violent crime causes lasting damage to the social fabric. I would argue that just the establishment of a law-free zone without any violent crime does a ton of damage to the social fabric. The knock on effects of delegitimizing the state's agents of violence are where most of the damage was.

Didn't people get murdered in CHOP/CHAZ?

Yes, but the plaintiffs were not seeking damages for that.

I would argue that just the establishment of a law-free zone without any violent crime does a ton of damage to the social fabric

Yes, absolutely. But, again, the plaintiffs were not seeking damages for that.

The issue raised by the OP was why the two lawsuits led to differing amounts of damages. How "bad" an event is in the abstract is rarely an issue in a lawsuit. A lawsuit is about whether the defendant wrongfully caused damage to the plaintiff.

Seattle police have given few details about the shooting and said the crime scene was disturbed before they arrived. They’ve declined to answer questions, saying it remains an active investigation. No one has been arrested.

one man says, standing next to the crashed Jeep, blood stains on his sweatshirt. “And our people weren’t having it. We already had their right tire out and we [expletive] drew down and took them out the car and we gave them the service.”

And three years later nobody has been arrested, because leftist street gangs can confess to murder on camera knowing the prosecutor won't go after them. That's a bigger deal than some capitol hill hipster business losing a few dollars in knick knack sales, but we get accountability for one and not the other.

If I’m reading this right, Hunters Capital kind of slung every accusation they could manage, and now at least one has reached settlement.

  • allegations that the city violated their right to due process

  • allegations of negligence

  • illegal taking of their property and civil rights

  • the city “directly participated” in creating CHOP through its decision to provide… accommodations during the three-week protest.

  • “right-of-access taking”

I think these correspond to the 5 claims mentioned, but I’m having a hard time getting the order to load. If so, the first three were dismissed; the other two went to jury trial, and this settlement must be one or both of them. Any guesses? As a layman, I’d expect the right-of-access claim to be more damning, but that’s just because it’s harder to follow.

Also, I shared the ghola’s reaction to BLISTERING judicial smackdowns. Quite the turn of phrase.

The order divides them into

  1. allegations of violations of due process (of "right of free movement and the right to remain in a public place of one’s choosing")

  2. allegations of violations of substantive due process (of "state-created dangers" that "increased the likelihood of property damage, loss of business revenue and rental income, personal injury, loss of use of property, and other damages".)

  3. a) unlawful per se taking ("of the right to exclude others from their properties") and b) right-of-access taking ("deprived them of the right to access their properties")

  4. negligence (which seemed to focus for procedural reasons on Seattle's non-enforcement of fire code and street public meeting safety laws?)

  5. nuisance (for not-directly-statutorily-authorized-actions that blocked roads and, indirectly, lead to graffiti, damages, loud noises, etc)

Claims 1, 2, 3a), and 4 were dismissed with prejudice. Claims 3b and 5 held to rest on matters of contested fact to be determined by jury.

Right of access is a Washington-specific variant of the right, and it requires that "access to their properties was eliminated or substantially impaired", and that "the government action in question has actually interfered with the right of access", and "was more than mere inconvenience at having to travel a further distance". It could be relatively lucrative if pressed successfully, but it's very dependent on how much the jury believed people were unable to get to a building and how much those interference were closely tied to state action.

The nuisance claim's... complicated. The law-school answer is that public nuisances don't give a right of action under common law, but in practice there's a sieve of exceptions and Wisconsin's law Washington's law explicitly allows anyone with particularized harm to bring a suit. But there's a host of immunities and exceptions. Seattle focused on the theory that municipalities are immunized from the negligence of their employees, and nuisances that were 'really' negligence wrapped in a fancier word don't escape that. But the plaintiffs at least claimed that the nuisances were actively caused and abetted by Seattle's actions and policies rather than mere failure to enforce, so this didn't work. In turn, though, the nuisance claim's damages are much smaller, and harder to show as caused proximately by Seattle's actions. As a layman, I think it's more likely to get some acceptance by a jury, but I have no idea what the actual damages could be, and for a variety of reasons the normal target of an injunction isn't very useful.

That said, I'm not a fan of the case law that restricted claims 1 and 2 to their limited form, and that resulted in them being thrown out so quickly.

Washington State is a land grant University in Pullman. Go cougs.

Washington is a state of the union.

And your link goes to Wisconsin, for some reason.

Whoops. Corrected, and thanks.

Are takings claims ever not thrown out? I never understood why people even make them with the reception they get.

In this case, the right-of-access taking is one of the two (along with 'nuisance') that didn't get thrown out and is a takings claim, if a weird one, though I don't know how well it would have lasted in a Seattle jury had it not been settled.

For takings per say, the very simple cases -- state grabbed 'real' (aka land) property for public use, no process or procedures, not even a fig leaf of a police purpose -- have decent odds of surviving to trial (or get settled earlier than that), and we just don't hear much about them because they end up depending on facts-of-case matters that usually aren't outrageous even when they're wrong. Or in the case of the federal government, get eaten by the Tucker Act and that's its own mess in a different way.

But most of what you hear about is complicated in some way: either a regulatory taking, or at least claimed to fall under the police purpose exception, or it's not a permanent or whole taking, or it's an item rather than 'real' property. Sometimes the courts have been willing to accept these, a la Koontz; other times, they're pretty much left fallow. Some part of that's just hoping to get lucky. Another part of that's 'only port in a storm', as the takings clause is very nearly the only remotely likely approach to recovering direct removal of property, since property-based due-process and substantive-due-process claims tend to have even worse odds.

The bigger driver's just that they've got much clearer and generally larger damages. How much do you hope to get from a jury over "bad traffic, unsanitary conditions, and loud noises" as a nuisance in Seattle?

Times are a changing. A lot of the issues related to having to bring suit within the state first and then collateral estoppel. My recollection (could be wrong) is that fed judiciary is re thinking that. The current scotus is much more friendly towards takings claims.

It's Charlie Brown and the football. There's just enough good case law stemming from Lucas and Loretto to make you think that maybe you've got a shot, or maybe the Supreme Court will decide to return to the glory days of the mid 90s and save you from bad precedent. (Hey, it even sometimes works! Cedar Point was a massive win for property rights advocates). There's a small glimmer of hope, so people will keep making the argument and keep getting shot down.

U.S. District Judge Thomas Zilly concluded last month that officials ignored the notifications

The city didn't ignore notifications, officials did.

Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other ranking city officials during the protests.

Don't sanction the city, sanction the people. The city didn't delete texts, people did. Throw those people in jail, fine them until they are destitute, and make an example that misconduct is punished personally.

Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other ranking city officials during the protests.

Believe it or not, those people were the moderates who were trying to keep things sane. If you go to /r/Seattle they are trying to throw Durkan and Best under the bus because they are not left-wing enough.

Durkan and Best, to their credit, did eventually dismantle the zone after the two teenagers were murdered by Antifa. Other voices, especially radical members of the city council, deserve much more blame.

Don't sanction the city, sanction the people. The city didn't delete texts, people did. Throw those people in jail, fine them until they are destitute, and make an example that misconduct is punished personally.

I completely agree, but Qualified immunity would like to have a word with you. If cops can steal $225k during the execution of a search warrant with no repercussions, what makes you think anything anything would happen here?

Explain to me why Chauvin wasn't protected by Qualified Immunity, then. Or the cops in Memphis.

Your example does little to influence me other than to raise the level of contempt I have for judges and courts. That seems blatantly against the Fourth Amendment, but what good are parchment rights in treacherous hands?

Qualified immunity traces back to 1982, when the U.S. Supreme Court announced a rule that government officials would be liable only if their specific actions had already been held unconstitutional in an earlier court case. They called the new rule “qualified immunity.” The Court’s decision was a drastic departure from the historical standards of government accountability. At the founding and throughout the nineteenth and earlier twentieth centuries, courts simply decided whether a government official’s actions were unlawful and, if they were, ordered a remedy. It was up to the other branches of government to decide whether the official should be reimbursed (if he had acted justifiably) or not (if he had acted in bad faith).

Treacherous indeed. I was going to blame Burger, but he was the only one dissenting.

Explain to me why Chauvin wasn't protected by Qualified Immunity

  1. Qualified immunity does not apply to criminal charges.

  2. "qualified immunity, as a federal doctrine, does not protect government officials from liability under state law. E.g., Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013); Jenkins v. City of New York, 478 F.3d 76, 86 (2d Cir. 2007); Samuel v. Holmes, 138 F.3d 173, 179 (5th Cir. 1998); Andreu v. Sapp, 919 F.2d 637, 640 (11th Cir. 1990)." Mack v. Williams, 138 Nev. Adv. Op. 86 (2022).

  3. Qualified immunity is qualified. It does not apply to clearly established rights.

I would give a caveat to 2: many states have their own statutory or common-law qualified immunity doctrines, or other doctrines with similar effects. Washington State's discretionary immunity rule isn't the worst, but while the standard of 'good faith' is somewhat stricter, it's not that strict. But, yes, the general 1983-style rule is mostly federal.

Isn't 3 pretty worthless as a restriction in practice? They keep making each rights violation more and more specific so that it's never been violated before. I'm on mobile and can't pull up specific examples, but I do remember there being some ridiculously specific rights violations.

Worthless? No. Courts deny qualified immunity all the time. See this study finding that it is relatively rarely successful. Which is not to say that it is not nevertheless successful too often.

But it is almost certainly true that the bad cases in which QI is granted get plenty of press, but unless you follow Short Circuit, you never hear about the cases in which QI is denied.

I don't think "relatively rarely successful" is an accurate summary, as much as the lead-in might want to play otherwise. The surprisingly low 'success' rate of QI it highlights in the header comes from taking a list of 1983 claims in five jurisdictions "brought by civilians, alleging constitutional violations by state and local law enforcement agencies and their employees" that reached the trial phase where QI could have been brought, and then counting only those where it was brought and resulted in a complete dismissal of all claims on QI-specific nexuses.

((Also, its procedures are 'did Bloomberg specifically catch a QI motion', which... likely undercounts.))

If you're actually interested in how often QI motions are brought and completely denied, the study gives a number closer to 30-40%. Which is still higher than I'd expect! (I don't think it breaks out those denied on "not clear) But still much larger than "relatively rarely successful", or the 3.6%/3.9% it brings in the earlier summary. There are some valid reasons to include cases dismissed for other reasons in the denominator, or where QI 'only' eliminated most counts, or where the defense did not bring QI (and maybe some cases where the LEOs were not acting under official duties?); there are valid reasons to exclude non-LEO cases. But it limits the study heavily, as does its inability to break out why those denials occurred.

Nevertheless, a 30-40% rate is a far cry from "worthless." And this Reuters data looking at appellate court decisions on excessive force shows them letting cops off on QI in a minority of cases, though 1) it varies by circuit; and 2) it is nevertheless too high, probably.

More comments

You're correct to point out that my answer was incomplete. The default state is sovereign immunity, where anything the government does is by definition not illegal or criminal. Of course, governments can choose to waive immunity, which is why people are allowed to sue a city bus for running them over or something. For criminal prosecutions, there is a legal obstacle and a practical one. Sovereign immunity protects criminal prosecutions, as is the case in a recent SCOTUS case involving prosecution of a Turkish bank and as Nicaraguan President Manuel Noriega tried to have happen. Those examples are both foreign sovereigns, and the law for domestic sovereigns is a bit more complicated and depends on the jurisdiction. Sometimes criminal laws create an intentional double standard depending on whether the person committing the act is an agent of the state or not, as was the case until recently in Washington state where a police officer charged with murder required the prosecutor to prove "evil intent" (something not required when prosecuting a peasant). Beyond the state-specific carve-outs, there's the practical reality of governments generally being reluctant to punish one of their own. This reluctance is sharpest with police officers given the intimate working relationship they have with prosecutors. It still happens (as it did with Chauvin) but only in extreme circumstances, not as a matter of course.

Those reasons explain why criminal prosecutions are both legally and practically rare, something which would be politically difficult to change, because why would the government choose to ruin a good thing? At this point the only alternative method of redress if a government official commits a wrong is a civil suit. §1983 and similar laws explicitly waive sovereign immunity to allow civil suits, and made the field wide open. The text plainly stated that any citizen could sue every official acting under color of any law for any violations of any rights. And as relative outsiders, civil attorneys wouldn't have the same reluctance about going after "one of their own". That's at least the ideal, except as you saw, Qualified Immunity has significantly gutted §1983's previously open field to the point where it's functionally worthless.

Qualified immunity doesn't explain the whole story, but it is a significant reason behind the nobility's lack of accountability.

Qualified Immunity has significantly gutted §1983's previously open field to the point where it's functionally worthless.

That seems like a gross overstatement, given the number of lawyers who seem to make a good living filing 1983 actions, including actions for police misconduct.

Qualified immunity only covers civil trials (mostly in the context of S 1983 and Bivens torts), not criminal charges. The problem for criminal charges and cases like Jessop is more that there's no chance of the state wanting to bring a theft charge against its own employees, even where, as in Jessop, one employee had already plead guilty for a different crime committed on the job, just one that the government cared about because it interfered with a drug trial.

((And along with the special Fuck Kim Davis clause, "don't harm marginally-resisting arrestees, even on 'accident'" is one of the few things judges sometimes consider "well-established law", though sometimes not.))

You can look up the current King County prosecutor (Leesa Manion) and Washington State attorney general (Bob Ferguson), but I don't think you'd need to make too many guesses about their political alignments.

I was born and raised in the state. I'm familiar with Ferguson. He's likely to run for Governor when Inslee decides to move on (please, soon). Manion doesn't ring any bells, but King County is blue as the deep sea. The KC Exec is going on fifteen years in office, and the KC Council are dominated by Dems year in, year out.

Don't sanction the city, sanction the people. The city didn't delete texts, people did. Throw those people in jail

I said it with regards to a suggestion last month about making examples of gain-of-function researchers for Covid, and I'll say it again here: you can't fine people for fucking up on high-skills jobs, because if you do you'll never get competent applicants for those positions - they'll go study a discipline with a career path that doesn't carry a jail risk, instead. So then you'll only get incompetent applicants who didn't have the brains to switch to a less risky career, having incompetent people in the position is more dangerous than having criminal people in the position.

This sort of thing is one sphere of human activity where holding people responsible for their crimes is actively detrimental to the greater good.

Sorry, but the current (terrible) practice of punishing a faceless organisation is nevertheless the least terrible of all the options. Well, aside from encouraging voters to stop electing crooks, but no-one's cracked that problem since Pericles.

If you're one of the umpteen US generals who lied to the public and the politicians about winning the war in Afghanistan, making progress and so on, then you ought to be punished. There's already a problem of there being too many suck-ups in the military, there are only so many slots open to become a general so they have to please all of their superiors. But the way to fix this isn't to make the system even more uncompetitive and stratified. We need to open up more new posts, appoint people who get results. Real-world success should be rewarded and failure punished. If we don't get rid of the old guard who lose wars to illiterate goatherders with 1/1000 of our resources, how can we expect to win wars against strong opponents?

These people and systems are not functioning at anything near peak performance. It is possible to win wars against opponents you massively outclass, though this might be a novel concept to the average NATO commander. Or even if we can't reach a vaguely decent level of performance, could we aim for 'dignified exit within a year of realizing we can't achieve our political goals' as opposed to 'subsidizing a pedophile-run army and funding corrupt Afghan officials for hundreds of billions in the vain hope something will change and we'll suddenly achieve our goals'?

People obey incentives. If we don't provide a serious negative incentive for global failures like 'losing the war', they'll simply optimize for avoiding local failures like 'bad press coverage' or 'falling behind schedule' or 'looking bad to my superiors'. But these local failures are there precisely to avoid global failures. The whole point of press coverage and oversight is to correct mistakes rather than letting them get entrenched. Only a severe punishment for global failure can get people to acknowledge local failure. If admirals and top brass knew they'd face serious punishment if their warships crash into civilian freighters (and kill seven sailors in the case of the USS Fitzgerald), they'd take the time to train them better and maintain their fleet properly rather than accept every political request to do missions and run themselves ragged.

If we don't punish the gain-of-function researchers who unleashed this catastrophic disaster, they will do it again and again. We already obliterate the careers of geniuses who have sex in the workplace. And then we wonder why fertility rates are falling... If we're going to punish people, it should be for some kind of actual failure.

I'd be very happy to see a world where there wasn't a single gain-of-function researcher, we should be moving towards that scenario at great speed. Militaries do need generals - but there's a lot of competition to become a general. There are plenty of aspiring officers.

On the other hand, if you save the govt 500K or 1M through some method, you should get a large bonus for your work.

So then you'll only get incompetent applicants who didn't have the brains to switch to a less risky career

No, I think it's the reverse.

The competent applicants are all in the private sector (where punishments for incompetence or malice exist- wages are higher as a result), and the incompetent applicants are all in the public sector (where the protections you described exist- ignoring the black swan event that is "the public gets so angry they just kill you").

The public sector also has a unique failure mode where incompetence and political motivation are indistinguishable from one another, and intentionally not punishing those things just serves to amplify the power of whatever political opinion can best leverage who/whom. Additionally, the public sector can excuse the same sort of who/whom bad behavior from the private sector in a way the private sector can't do to the public sector (outside of news media, of course), so the consequences of not reining them in are worse.

I think the framework for civil engineering demonstrates a pretty strong case against this: criminal charges for negligent construction or operation of a business are rare, but they're not unheard of, and fines or suspensions of licenses targeting individuals are fairly common. And civil engineers are very aware that even if things like the Hyatt Regency collapse weren't brought to court, that was as much by the grace of grand jury as by law or norm.

Yet, despite being a difficult and math-heavy field, civil engineering remains a popular career path, and the Sword of Damocles has not frightened away all of the competent or risk-averse candidates. There's certainly some point where a lower standard of proof, or broader concept of liability would, but given that the Hyatt Regency guys weren't tarred and feathered I'd argue we're a little on the too-soft side even recognizing Joint Over- and Under-Diagnosis.

This also isn't really specific to any one field. You have to fuck up really bad to get twenty-five counts of involuntary manslaughter running a food processing plant! But people have done it.

Huh? If I committed even unintentional negligence in my private sector business I could be fined and lose my licenses and my industry has no shortage of applicants - why would it be different for public sector employees?

but no-one's cracked that problem since Pericles.

I don't know, the Venetians had a decent system

People in the private sector get fined and jailed for fucking up all the time, and there doesn't seem to be a shortage of competent applicants for those positions despite the risk. Why not?

CHAZ wasn’t just an oopsie of city leadership. They deliberately decided to keep it up. It wasn’t an innocent mistake, an accidental screwup. It is totally fine to sanction people for deliberately using the power of their position for evil.

More specifically, they embarked on an easily foreseeable train wreck, and should be held accountable. Just like a doctor or engineer who makes the same category of deliberate unforced error.

In doing so, Zilly issued a blistering order that leveled crippling sanctions against the city

I'm imagining the judge as some sort of Godzilla-sized ant creature spewing jets of hot acid across Pioneer Square, BLISTERING hundreds of bystanders! And permanently CRIPPLING many more! Disfigured and mamed for life! Let's hope the judge doesn't start SLAMMING people into the pavement, EVISCERATING and GUTTING them with his mandibles, or BLASTING them with additional acid streams.

The absolute state of modern journalism.

And yet I still don't know what the sanctions actually were. Deleting text messages that are pertinent to a case is destroying evidence, which is a crime, right? So the people who did it are going to prison, right? Right?

I mean, that certainly could be the prompt behind a political cartoon.

Why won’t there also be criminal proceedings for the people who destroyed evidence?

Ever heard of Qualified Immunity? It protects state agents from consequences of conduct which, if done by a peasant, would otherwise result in criminal sanctions. Detectives can lie on the stand, prosecutors can hide exculpatory evidence, jail officers can scald the skin off a prisoner, cops can even kill people, and there's basically nothing you can do about it.

edit: this answer was incomplete, I expand upon it here.

Qualified immunity only covers civil trials, so in theory criminal charges wouldn't be impossible. One of the parts that makes Jessop go from tragic to tragicomedic is the detective in charge of the search, who almost certainly would have been involved in the alleged theft, had already plead guilty to other on-duty-crimes by the time the case had gone to the 9th Circuit. Of course, there's no private right to bring criminal charges in California, and criminal law isn't particularly focused on making people whole, so gfl.

((Also, technically, prosecutors fall under prosecutorial "absolute immunity", as do judges fall under judicial absolute immunity, which manages to be worse: even clear and knowing violations of well-established law can not be brought to heel in civil courts, so long as those actions are done under their official duties. But that's mostly a nitpick, given that "knowing violations of well-established law" might as well be a black hole.))

You're correct, I linked to a more complete answer.

Because all the new city officials who would bring those criminal proceedings think "There but for the grace of God go I".

It's the same reason that normal Presidential administrations don't dig through the dirty laundry of previous Presidential administrations - because if you do it to the last guy, what's to stop the next guy doing it to you? Sure, the guilty go free, but that's better than e.g. Brazilification, where everyone's campaigning from their prison cells so they can overturn their own politicised convictions.

Because there's no crime to speak of. The only thing that comes close is Obstruction of Justice, but that only applies in criminal cases, not civil. Spoliation of evidence in a civil case is shitty, but it's a civil wrong, not a criminal one, and the appropriate punishment is sanction by the civil court.

Washington has an evidence tampering criminal statute. Although the statute says physical evidence, there's at least once case where someone was convicted for trying to break a cell phone to hide incriminating text messages. I'm sure a creative prosecutor can find way more relevant statutes.

Those are all very good points. I wouldn't say that a conviction here would be easy, but prosecutors have chased after plenty of far more ethereal charges before (and sometimes won). All I was saying is that if officials are not being prosecuted here, it's not because the statute is lacking. Compare that to the Loudoun County Schoolboard issue, which was stymied by the lack of a witness tampering law on the books in Virginia.

I hope you understand that I'm not disagreeing with you.

All I was saying is that if officials are not being prosecuted here, it's not because the statute is lacking.

I think there are several states with open meetings and records laws (uncertain about the specific one in Washington state) in which this might rise to a criminal act. But that would also depend on the state wanting to bring charges.

I thought about including something like this but I decided against it because these laws don't really apply here. For instance, Pennsylvania has an open records law, but it's only concerned with whether an agency is obligated to provide certain records; it doesn't contemplate that an agency would actually destroy records to prevent disclosure. Furthermore, there are plenty of exceptions to disclosure, notably, a record that reflects

the internal, predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including predecisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations.

If the text messages in question were the mayor and police chief strategizing about how to handle the protest, they could conceivably fall under this exception and thus not be subject to public disclosure. But whether or not they're subject to disclosure has no bearing on whether they have to be produced in discovery, because open records law has no bearing on the discovery process. There is, of course, a separate criminal offense for destroying public records, but that wouldn't really apply here because it's unclear if it would apply to text messages. Historically, all the cases involving this (at least the ones that made the news) involved falsification or destruction of actual records that are required by law to be filed with the state. For example, there was a case a few years back where the operator of a water treatment plant was submitting falsified water quality reports to whatever agency monitors such things to cover up the fact that the water wasn't up to standard. I'm not saying that text messages necessarily couldn't be classified as public records under this law, or under whatever comparable law they have in Washington, but it's not an obvious prosecution.

The one I'm most familiar with is the Texas Open Meetings Act, which seems to place some stricter requirements on "meetings" with although that would depend on the details of city governance (were these "meetings" with the mayor and city council or is the mayor authorized to directly command the police department without deliberation?) and the text messages at play. Anecdotally, I've heard that politicians are advised to not discuss business outside of announced, scheduled meetings, but charges are infrequent (although not non-existent).

Archive link for the article: https://archive.is/pmqAT

Thanks for this, how does it work exactly? Does it always allow you to circumvent paywalls?

I honestly don't know. It has worked in over 90% of cases for me so far. It is also very good in case someone sneak-edits the article in question (which has become rather common lately).

With the concept of adverse inference existing in US law non-criminal law, it seems strange that a mere settlement, instead of verdict finding the City responsible was reached.

According to an article in the linked article, the trial court determined that "he’ll instruct the jury that it may presume the text messages were detrimental to the city’s legal position and that there’s significant circumstantial evidence they were deleted intentionally." That isn't all that helpful.

Plus, the plaintiffs might have a tough time prevailing on appeal, given that this is a civil rights action and their claims -- that the city violated their procedural and substantive due process rights and that the city effected a taking of their property -- are clear stretches under current jurisprudence. And there also might be problems proving causation re damages.

Finally, after trial the attorneys fees award would likely be much larger than the damages, so I would not be surprised if the city agreed to settle for damages + attorneys' fees to date.

Yeah, unfortunately there's an absolute charlie foxtrot when it comes to deprivation of rights where the government ignores or merely assists a bad third-party actor: Castle Rock v. Gonzales Warren v. DC, Lozito v. New York City and Riss v. New York (cw: rape, cops being bastards) are just high-profile examples of the general rule against the public duty to protect any individual meaning basically anything, with DeShaney v Winnebago County (cw: child abuse, 'cops' being bastards) showing how close the state's assistance and negligence could get even in the most extreme of harms.

That's why the motion to dismiss phase of this case had already reduced to some esoteric theories of a "right-of-access" taking and "nuisance", while explicitly blocking any direct due process or conventional takings torts. And honestly I'm not sure how strong those theories could have gone.

Even if you're trouncing your opponents in a lawfight it can be smart to settle because juries are weird and unpredictable.

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