Speaker 1: This is Bloombird Law with June Brusso from Bloombird Radio.
Speaker 1: He actually became Abdulah Haking Mohammed. He was no longer
Speaker 1: Carlos Bledso. Martin Blesdoe's son, Carlos wants a bright, happy,
Speaker 1: go lucky hip hop fan, had fallen with Islamic radicals
Speaker 1: as a college student in Tennessee. His sister says they
Speaker 1: transformed him. They instill into your head that what you're
Speaker 1: doing is right, and you're doing it for your new family,
Speaker 1: which is the extremists. When Carlos shot and killed a
Speaker 1: soldier at a US military recruiting office in two thousand nine,
Speaker 1: the family struggled with anger and grief. With nowhere to turn,
Speaker 1: they decided to help others who faced the same question
Speaker 1: they had. What do you do when a loved one
Speaker 1: subscribes to a radical idea of g whether it's jihad,
Speaker 1: white supremacy, q and on or something else. Parents for Peace.
Speaker 1: I feel like it's going to bring these families closer
Speaker 1: so that we can cry on each other showers, and
Speaker 1: for those that may be questioning what their child are doing,
Speaker 1: I think this will open their eyes. The demand for
Speaker 1: the services of Parents for Peace has never been higher.
Speaker 1: Joining me is Bloomberg Legal reporter David Yaffee Bellini, who's
Speaker 1: written about the group. David start by telling us about
Speaker 1: the raid on the house of a young man who
Speaker 1: also had been radicalized. This was back in November of
Speaker 1: and a mother in the southern US who were calling
Speaker 1: any and the story wakes up to the sound of
Speaker 1: pounding on her front door at the early hours the
Speaker 1: morning and outside the house or a group of FBI
Speaker 1: adem and they've come looking for her teenage son who
Speaker 1: are calling Jack and the story and the reason is
Speaker 1: that Jack has been stuck into the world of Islamic
Speaker 1: radical them online. He's talking in forums with supporters of
Speaker 1: the Atlantic State. He's discussing the possibility of attacks on
Speaker 1: national landmarks like the White House and the Washington Monument,
Speaker 1: and all of this has gotten the attention of the FBI,
Speaker 1: which shows up to read the house and see whether
Speaker 1: there's any sign that Jack is actually preparing to launch
Speaker 1: a real terror attack. Was he charged. He was eventually
Speaker 1: charged in the juvenile court with making terrorist threats against
Speaker 1: the US and also with essentially obstructing investigation because he
Speaker 1: deleted a chat app from his phone after the FBI
Speaker 1: showed up, But ultimately he received a year of probation
Speaker 1: that says didn't really find any solid evidence that he
Speaker 1: was actually about to launch this sort of attack. And
Speaker 1: he was sixteen at the time, so, you know, luckily
Speaker 1: for him, the case ended up in juvenile court. His
Speaker 1: mom said, people understand porn, they don't understand your kid
Speaker 1: is doing isis. But she was talking about this as
Speaker 1: an addiction. Yeah, So a lot of people who struggle
Speaker 1: with extraism and members of extremist groups compare the kind
Speaker 1: of psychological experiences being part of one of these movements
Speaker 1: to an addiction. You know, trying to break out of
Speaker 1: it produces similar kind of lingering effects as if you're
Speaker 1: breaking an addiction to drugs or alcohol, and this kind
Speaker 1: of thrill or the high get from being part of
Speaker 1: it is also akin to the sort of experiences being
Speaker 1: on drugs or being drunk or what have you. And
Speaker 1: so that's a way of thinking about this problem that
Speaker 1: anecdotal evidence supports, from which academics are beginning to study
Speaker 1: in a more systematic way to see if there are
Speaker 1: lessons of how you can combat this problem that stems
Speaker 1: from that recognition of their similarities with addiction, and the
Speaker 1: mom tried all sorts of things before she found Parents
Speaker 1: for Peace. Her son Jack is autistic, and people who
Speaker 1: are autistic are sometimes susceptible to the type of predatory
Speaker 1: recruitment that can lead to extremism, and so she saw
Speaker 1: all sorts of treatments for him. Him to a residential
Speaker 1: school for kids that behavioral problems. She introduced him to
Speaker 1: a rotating asks of doctors and therapists to try to
Speaker 1: treat this problem, and eventually she found a group called
Speaker 1: Parents for Peace, which is a nonprofit that has been
Speaker 1: around and which specializes in helping people do radicalize, in
Speaker 1: that sort of lurring and kind of coaxing them away
Speaker 1: from extremist groups. How would you describe their treatment method.
Speaker 1: It's difficult to describe precisely, but it's somewhere at the
Speaker 1: intersection of addiction treatment, family counseling therapy, the kind of
Speaker 1: cult deprogramming efforts of the nineties seventies. It's this sort
Speaker 1: of hybrid approach. A lot of it is about figuring
Speaker 1: out what the underlying problem is and trying to address that.
Speaker 1: You know, maybe this person is drawn to an extremist
Speaker 1: group because of their lonely Let's find a way for
Speaker 1: them to make friends that they get that kind of
Speaker 1: sense of camaraderie from somewhere other than a dangerous extremist group.
Speaker 1: Some of it is about coaching the family to respond
Speaker 1: to the loved ones extremism and productive way instead of
Speaker 1: freaking out every time they show up you and on
Speaker 1: video on their phone. Try to ask them open and
Speaker 1: the questions about why they're drawn to that video, Try
Speaker 1: to understand them, show them loves and attention and trying
Speaker 1: to combat this underlying issue that might make them vulnerable
Speaker 1: to conspiracy theories. That's sort of thing and the ultimately
Speaker 1: what this group will sometime to do is introduce someone
Speaker 1: who's in an extremist group to a former extremists, somebody
Speaker 1: who's been in the group and left will kind of
Speaker 1: mentor them the friend of them and try to coach
Speaker 1: them away. The woman now in charge, Miriam Churchill, said,
Speaker 1: I thought this is really interesting. Never argue with extremists,
Speaker 1: don't react to angrily. It's tough not to try to
Speaker 1: argue someone out of something. Yeah, definitely, I mean, certainly
Speaker 1: the temptation when somebody starts voicing horrible white supremacist ideas
Speaker 1: or kind of anti vactor sentiment is to fight back
Speaker 1: and argue and prove them wrong. But what Miriam has
Speaker 1: found and hurt kind of working with families is that
Speaker 1: ultimately that's counterproductive. That feeling like you're under assault will
Speaker 1: just make you want to dig in even further and
Speaker 1: make you less likely to leave that type of conspiracy behind.
Speaker 1: And you know, that kind of makes sense on a
Speaker 1: sort of intuitive level, and so her advice is not
Speaker 1: to do that again, to try to kind of understand
Speaker 1: the underlying problems that might make you susceptible to believe
Speaker 1: in these things, and then to try to combat those.
Speaker 1: So extremism is the drug of choice. And in Jack's case,
Speaker 1: he went from one extreme ideology to another. Yes, so
Speaker 1: this is something that the group parents or piece actually
Speaker 1: sees quite a lot, that people will switch from one
Speaker 1: ideology to the other. And you know, certainly when I
Speaker 1: was beginning my reporting, you know, I didn't understand that
Speaker 1: at all. It seemed it didn't seem to make sense
Speaker 1: to me how somebody could go from being an Islamic
Speaker 1: radical one day to being a white supremacist the next day.
Speaker 1: It didn't fit with my understanding of how this works.
Speaker 1: But you know, actually when you when you think about
Speaker 1: it more deeply, it does makes sense. You know, people
Speaker 1: are drawn to extremism often not because of the substance
Speaker 1: of the idea oology, but because being a part of
Speaker 1: a group filled some sort of spiritual void and and
Speaker 1: and the substance of the ideology is almost secondary to
Speaker 1: the experience of subscribing to the ideology at all. And
Speaker 1: so it makes sense that somebody might switch from from
Speaker 1: from one form to another, and that's something that the
Speaker 1: group seed a lot. So in Jack's kid, you know,
Speaker 1: with the help of the lessons his mom and some
Speaker 1: parents or peace and some of his kind of own
Speaker 1: independent research videos he was watching online, he gradually starts
Speaker 1: drifting away from Islamic extremism, eventually kind of renounces the Kuran,
Speaker 1: become a sort of urgently anti Muslim, which is its
Speaker 1: own sort of problem um. But then also at the
Speaker 1: same time begins embracing we're at least flirting with light
Speaker 1: wing extremism. Um. He gives ancestors who's gone to the
Speaker 1: Confederacy in the Civil War and starts wearing a Confederate
Speaker 1: flag baseball cap everywhere. He decorates his room with Confederate flags. UM.
Speaker 1: And his mom, you know, doesn't think that he's becoming
Speaker 1: a white supremacist exactly, you know, not expressing animus towards
Speaker 1: other races or anything like that, but he is sort
Speaker 1: of beginning to adopt some of the some of the
Speaker 1: trappings of white supremacy UM, and you know, at times
Speaker 1: or like express views that seems that seemed potentially problematic.
Speaker 1: At one point he uses the phrase white power and
Speaker 1: an argument with the sibling. Another time, his mom is
Speaker 1: sort of urging him to stop wearing his Confederate tap
Speaker 1: out in public, and he says, no, no, this is
Speaker 1: my history, this is my heritage. So you can see
Speaker 1: how that, you know, could easily, especially for someone with
Speaker 1: his history, turn into um, a real real problem. Do
Speaker 1: they call it deep programming or does that sound too cultish? Yeah,
Speaker 1: parents are piece prefers. The term de radicalization, you know,
Speaker 1: deep programming. It's never a term that's really been precisely defined,
Speaker 1: but it's definitely associated with those kind of extreme methods
Speaker 1: of in eighteen seventies when cult deprogrammers would literally kidnap
Speaker 1: people who were in cults who subscribes to strange, exotic
Speaker 1: religious principles that their parents didn't understand. They would kidnap
Speaker 1: those people and deprived them of food until they were
Speaker 1: prepared to leave behind whatever that the cult was. And
Speaker 1: so a lot of the groups that are doing this
Speaker 1: type of work now want to stay away from that
Speaker 1: type of terminology, so they use still use the word
Speaker 1: radicalization instead. Is there a lot of money in this,
Speaker 1: So groups like Parents or Peace and another similar group
Speaker 1: called Life After Hate our nonprofits that don't charge money.
Speaker 1: They generate income through donations and government grants and those
Speaker 1: works of means. But there's also a cadre of for
Speaker 1: profit deprogrammers de radicalizers out there, and these tend to
Speaker 1: be the sort of final legacy of that nineteen seventies era.
Speaker 1: You know, these are people who are in cults and
Speaker 1: who then made careers out of deep programming, and they
Speaker 1: don't use the same extreme techniques at that period, but
Speaker 1: they charge family tens of thousands of dollars to conduct
Speaker 1: interventions to kind of insinuate themselves into the life of
Speaker 1: a cult member and then eventually reveal themselves as you
Speaker 1: know Ham as deprogrammer. And I'm here to take you
Speaker 1: away from this, and I'm the persuade you why you
Speaker 1: should leave. And this is fraught with risks. Obviously there's
Speaker 1: no guarantee of success. You could spend twenty thousand dollars
Speaker 1: one of these projects and then end up no better
Speaker 1: than when you started. Or I heard stories about the
Speaker 1: programs botching interventions, and so families leaves a lot of money,
Speaker 1: and then also their family member who they were trying
Speaker 1: to help is actually even more alienated ultimately, and so
Speaker 1: there are all sorts of problems associated with this. So
Speaker 1: Stephen Hassan is UM, you know, one of the most
Speaker 1: well known kind of for profit deep programmers, the radicalizers.
Speaker 1: He was a member of the Unification Church, you know,
Speaker 1: back decades ago. You know, he considered a mooney UM.
Speaker 1: He ended up leaving, leaving that group and starting a
Speaker 1: career as a as a deep programmer UM. And so
Speaker 1: he charged his five thousand dollars a day to work
Speaker 1: with families who are trying to extract somebody from an
Speaker 1: extremist group or from you know, a cult. UM. He's
Speaker 1: recently kind of pivoted more from helping cult members to
Speaker 1: helping people who are kind of stuck down the you
Speaker 1: and on rabbit hole. Um. He published a book recently
Speaker 1: called The Cult of Trump. Um, he's the sort of
Speaker 1: guy who's on TB all the time talking about how,
Speaker 1: you know, Trump supporters are brainwashed and that sort of thing.
Speaker 1: He's basically trafficking in kind of theories about how this
Speaker 1: works that are disputed by academics and then charging huge
Speaker 1: amounts of money to try to help people. I mean,
Speaker 1: there are certainly, you know, records of that kind of
Speaker 1: successful cases that that he's worked on. But UM, it's
Speaker 1: definitely a different, you know, costlier approach than what what
Speaker 1: other groups are offered. Is that extreme cult deep programming
Speaker 1: happening anymore. You know, there may be kind of anecdotal
Speaker 1: examples of that happening occasionally now, but that's it's not
Speaker 1: happening at anywhere near at the level that it did
Speaker 1: in the seventies. And that's partly because there were legal
Speaker 1: repercussions for the people who were doing this. There were
Speaker 1: criminal prosecutions, there were civil suits, and and that you know,
Speaker 1: really kind of changed how this works. Um. And you
Speaker 1: know it's happening, it's happening much less often, if at all, anymore.
Speaker 1: When when and when you talk to people who are
Speaker 1: in the kind of culty programming space now, they don't say, oh,
Speaker 1: we would never do anything like that. So as far
Speaker 1: as groups that are free of charge, how many are
Speaker 1: they're out there? It's really a handful, you know. I
Speaker 1: know of two or three off the top and I
Speaker 1: have there. Maybe there may be others, but it's a
Speaker 1: very kind of small and and and still sort of
Speaker 1: growing community. Um. This sort of work is really pioneered
Speaker 1: in Europe. In the late nineties, there was an effort
Speaker 1: in Norway to help right wing extremeists leave these sorts
Speaker 1: of groups, and it only really these sorts of efforts
Speaker 1: only really a game traction and that you asked over
Speaker 1: the last decade. So we're sort of behind where we're
Speaker 1: Europe is on this type of ward, and some defendants
Speaker 1: charged in the January six riots are using this idea
Speaker 1: of de radicalization at sentencing to try to get a
Speaker 1: more lenient sentence. I mean, this is a fascinating aspect
Speaker 1: of this type of work. What you're seeing is that
Speaker 1: people who are facing prison sentences because of extremist activity
Speaker 1: are able to say to judges, look, I'm trying to
Speaker 1: get you outequalise I'm working with a group like Parents
Speaker 1: for Peace, or I'm re educating myself and reading all
Speaker 1: sorts of literature about racial inequality in America sentance and
Speaker 1: that shows that I deserve a more lenient sentence. It's
Speaker 1: really similar to someone who's charged with drunk driving who
Speaker 1: starts going to a meetings and said, so ject, look,
Speaker 1: I'm trying to get treatment. Give me a lenient sentence
Speaker 1: and proving to you that if I'm allowed to return
Speaker 1: to society all behave myself and won't be a threat
Speaker 1: to other people. Now, of course there's a risk here.
Speaker 1: There's a risk of dishonesty and manipulation and people abusing
Speaker 1: these sorts of resources, and you know, that's something that
Speaker 1: the courts are going to have to kind of figure
Speaker 1: out how to sort of protect. And has Parents for
Speaker 1: Peace been involved in any of these sentencings. The one
Speaker 1: case that we're we've seen this play out kind of
Speaker 1: most obviously is in Michigan. Tye Garbon, who was one
Speaker 1: of the right wing extreamists who was charged with the
Speaker 1: Gretchen Whitmer kidnapping plot back in twenty twenty. He was
Speaker 1: the first of that group of conspirators to plead guilty,
Speaker 1: and his lawyers reached out to Parents for Peace and
Speaker 1: he spoke with the organization over zoom and had various
Speaker 1: meetings with them talking about his personal history. They were
Speaker 1: trying to kind of help him get to a place
Speaker 1: where he's not further radicalized in prison. And then during
Speaker 1: his sentencing, his lawyers brought this up repeatedly and argued
Speaker 1: to the judge that he deserved more leading a sentence.
Speaker 1: And it's difficult to pinpoint where that outreach fit into
Speaker 1: the broader picture of his case, but he did end
Speaker 1: up receiving a sentence that was significantly below the maximum
Speaker 1: possible that he could have received. It was also because
Speaker 1: he was the first in this group to police guilty.
Speaker 1: He was cooperating that type of thing, but it certainly
Speaker 1: didn't hurt that he was speaking the sort of help.
Speaker 1: Is there any study being done to back up that
Speaker 1: this is a process that works long term? So there's
Speaker 1: some data from European efforts that suggests that it works
Speaker 1: pretty well in terms of the work that parents pieces doing.
Speaker 1: There's just way less data on that, and it's a
Speaker 1: real quest and mark they're certainly anecdotal examples of this working,
Speaker 1: But can they show systematically that they have refined an
Speaker 1: approach that really addresses this issue in a meaningful way.
Speaker 1: And they're working with researchers at Harvard and Boston University
Speaker 1: who are just now beginning to work. Is like tracking
Speaker 1: cases over the long term, and that means not just
Speaker 1: does this person leave the extremist group and reject terrorism
Speaker 1: or white supremacy or whatever two months later, it's like
Speaker 1: where are they two years later? Where are they four
Speaker 1: years later? You know, how does their life change after
Speaker 1: the group's intervention. That's work they'll take a really long
Speaker 1: time to do and it's only only really starting now.
Speaker 1: How much call is there for this type of intervention.
Speaker 1: I think there's a huge amount of demand that Parents
Speaker 1: or Peace saw threefold increase and calls to its national
Speaker 1: hotline during the pandemic from before the pandemic. You know,
Speaker 1: it's people stay at home, are spending more time online,
Speaker 1: you know, all this sorts of phenomena that we're familiar with.
Speaker 1: And after January six, you're also seeing assert in family
Speaker 1: seeking treatments for loved ones who are being stuck down
Speaker 1: these rabbits. So it's certainly something that's in demand. There's
Speaker 1: no question that extremism is a big problem in the
Speaker 1: modern US and that we need to figure out a
Speaker 1: way to deal with it. And a lot of attention
Speaker 1: has focused on how do we get social media companies
Speaker 1: to stop spreading this information that leads to extremism, and
Speaker 1: that's certainly a big problem and one that needs to
Speaker 1: be addressed. But what these groups are trying to do
Speaker 1: is address a different sort of problem, which is, Okay,
Speaker 1: you've got a family member who is already an extremist.
Speaker 1: What do you do then? And that's a complicated question.
Speaker 1: Thanks David. That's David Yaffie Bellani, Bloomberg Legal reporter. The
Speaker 1: demands for justice and police accountability during the demonstrations following
Speaker 1: George Floyd's murder revived questions about the controversial doctrine of
Speaker 1: qualified immunity, But this week the Supreme Court sided with
Speaker 1: police in a pair of cases alleging excessive force by
Speaker 1: officers in California and Oklahoma. The Justice has ruled unanimously
Speaker 1: that the officers were protected by qualified immunity and could
Speaker 1: not be sued because previous case law hadn't given them
Speaker 1: clear guidance that their conduct violated the constitution. Joining me
Speaker 1: as an expert on qualified immunity, Joanna Schwartz, a professor
Speaker 1: at u c l A Law School, Joanna explain what
Speaker 1: qualified immunity is. So. Qualified immunity is a legal defense
Speaker 1: in civil cases, and the defense means that a police
Speaker 1: officer or other government official who has violated the Constitution
Speaker 1: is protected from being sued unless there's clearly established law
Speaker 1: showing that what they did was unconstitutional. And the Supreme
Speaker 1: Court in recent years has offered more and more restrictive
Speaker 1: descriptions of what it means to clearly establish the law,
Speaker 1: so that they've now really sent a message that you
Speaker 1: need a prior court case where the almost exact same
Speaker 1: thing happened before and ruled unconstitutional in order to clearly
Speaker 1: establish the law. In both cases, the justices overturned lower
Speaker 1: court decisions that went against the officers. Can you just
Speaker 1: tell us a little bit about the cases. One was
Speaker 1: from the Ninth Circuit, one was from the Tenth Circuit.
Speaker 1: They were both cases where police were called about some
Speaker 1: domestic incident. You know the fact in a slightly difference
Speaker 1: in the case out of the Ninth Circuit, officers in
Speaker 1: arresting person put them down on the ground and put
Speaker 1: their knee on the person's back, albeit briefly. And in
Speaker 1: the case out of the Tenth Circuit, the man was
Speaker 1: near his garage the police arrived, and it sounds like
Speaker 1: the man sort of stepped back into his garage, had
Speaker 1: a hammer that he swung sort of like a baseball bat,
Speaker 1: it says in the opinion, several feet away from the officers,
Speaker 1: and then the officers shot him. The Court said, it's
Speaker 1: not enough that rule be suggested by then existing precedent.
Speaker 1: The rules contours must be so well defined that it's
Speaker 1: clear to a reasonable officer that his conduct was unlawful
Speaker 1: in the situation he confronted. Our officers really aware of
Speaker 1: what these court cases say, or is this standard sort
Speaker 1: of a ruse on the Court's part. It's a terrific question.
Speaker 1: I think the shortest answer is it is a bit
Speaker 1: of a ruse. When the Supreme Court explains why there
Speaker 1: needs to be a prior court decision with nearly identical fact,
Speaker 1: they talk about notice that the officer needs to be unnoticed,
Speaker 1: that the contours of the constitution are hazy and we
Speaker 1: need a clear articulation of what is unconstitutional for an
Speaker 1: officer to be unnoticed. But you are absolutely right. Officers
Speaker 1: are not educated about the fact and holdings of the
Speaker 1: court decisions that the Supreme Court says are necessary to
Speaker 1: clearly establish the law. And I actually, in an article
Speaker 1: that was published earlier this year, studied hundreds of policy
Speaker 1: and trainings for California law enforcement agencies about the use
Speaker 1: of force, which is the issue that is the basis
Speaker 1: for these two decisions. And what I found was officers
Speaker 1: are trained about the sort of high level framework that
Speaker 1: the Supreme Court articulated in a case called Grand versus
Speaker 1: connor about the reasonableness of force depending on the totality
Speaker 1: of circumstances given the perspective of the officer at the time.
Speaker 1: But they are not trained about the facts and holdings
Speaker 1: of the court decisions that the Supreme Court says are
Speaker 1: necessary to clearly establish the law. Instead, they're taught those
Speaker 1: broad principles and taught how to apply them with various
Speaker 1: hypotheticals that are not drawn some court cases. And if
Speaker 1: you think for a moment about what it would mean
Speaker 1: for officers actually to rely upon these prior decisions, it's fantastical.
Speaker 1: There are hundreds or thousands of opinions that could clearly
Speaker 1: establish the law just for use of force cases. And
Speaker 1: then there's all sorts of other things that police officers
Speaker 1: and other government officials do that also have our own
Speaker 1: bodies of case laws. To learn about those cases. You know,
Speaker 1: in California, you get I think it's twenty four hours
Speaker 1: every two years of training learning about those cases. Spending
Speaker 1: just five minutes on those cases would take up all
Speaker 1: of the training hours that police officers currently have. And
Speaker 1: then you have to expect that officers would actually retain
Speaker 1: and remember the fact and holdings of those cases, and then,
Speaker 1: in the split second that they are required to make
Speaker 1: the kinds of decisions that sometimes lead to use as
Speaker 1: of force, be able to distinguish between the precise facts
Speaker 1: in these various cases. It simply is fantastical. It is implausible.
Speaker 1: It makes no sense at all as a standard, and
Speaker 1: that is justified by notice goals. And so then what
Speaker 1: is the purpose? I returned to where you started with
Speaker 1: your question. It feels like a bit of a route.
Speaker 1: And in the case here involving the California Police officer,
Speaker 1: the Ninth Circuit said that existing precedent did put the
Speaker 1: officer on no notice. And in the case involving the
Speaker 1: Oklahoma police officers, the ten Circuit pointed to several cases
Speaker 1: that it said clearly established that the conduct was unlawful.
Speaker 1: So are the justices saying, no, there has to be
Speaker 1: a case that we decided that's exactly on point. Well,
Speaker 1: the Supreme Court since about has been writing in several
Speaker 1: different qualified immunity opinions that Supreme Court decisions clearly established
Speaker 1: the law, but that they'll only assume for the purposes
Speaker 1: of argument, that Circuit court decisions, Court of Appeals decisions
Speaker 1: can also clearly establish the law. And they've said this
Speaker 1: multiple times. They've never actually come out and said that
Speaker 1: only Supreme Court cases can clearly establish the law. But
Speaker 1: every time they issue a decision that has that kind
Speaker 1: of caveat, it's very shocking and surprising given that the
Speaker 1: Supreme Court only decides a handful of cases, you know,
Speaker 1: involving civil rights issues and the ability to sue every year,
Speaker 1: and when they do, they very rarely rule on the
Speaker 1: question that the Supreme Court says is necessary to clearly
Speaker 1: establish the law, which is a ruling on whether the
Speaker 1: Constitution was violated. And note that in these cases. In
Speaker 1: these decisions that the Supreme Court issued where they said
Speaker 1: there was no clearly established law, there was not a
Speaker 1: prior court case holding similar conduct on constitutional They also
Speaker 1: didn't rule on the constitutionality of the conduct in these cases,
Speaker 1: so they did nothing to clarify the law moving forward.
Speaker 1: There was no noted dissent. Did that surprise you at all?
Speaker 1: It didn't. It didn't. There have been rumbling within the
Speaker 1: Supreme Court that qualified immunity doctrine should change. Justice Thomas
Speaker 1: has said that it should be reconsidered. Justice Podo Mayor
Speaker 1: has said that it sends a message to police that
Speaker 1: they can shoot first and think later. And there was
Speaker 1: a decision in November of case called Taylor versus Rio
Speaker 1: Jus where the Court seemed to be backing away from
Speaker 1: its most robust description of what clearly established law was.
Speaker 1: In that case, which involves prisoner who has kept in
Speaker 1: a cell for several days that was completely undersanitary, unfit
Speaker 1: for human habitation. The Supreme Court said, you don't need
Speaker 1: a prior case for it to be obvious that it
Speaker 1: was unconstitutional to put this person in these conditions for
Speaker 1: this amount of time. And when the Supreme Court issued
Speaker 1: that decision. I and others who studied this issue thought
Speaker 1: that it could be a indication that the Court was
Speaker 1: stepping back from its most extreme descriptions of the doctor
Speaker 1: and what was necessary to clearly establish the law. So
Speaker 1: with these two unsigned unanimous precurium opinions, it seems like
Speaker 1: the Court was not opening the door quite as widely
Speaker 1: as I had hoped to a vision of qualified immunity
Speaker 1: that that didn't require clearly established law at this level
Speaker 1: of precision that they seem to do in these two cames.
Speaker 1: Do you think the differences between police officers, who the
Speaker 1: court sees is having to make split second decisions and
Speaker 1: prison guards It could be It certainly is true that
Speaker 1: the officers in the prison case had a lot more
Speaker 1: time to deliberate about the steps that they were taking.
Speaker 1: But then it seems to me like the more sensible
Speaker 1: answer is to reach the constitutional question and make a decision,
Speaker 1: issue a decision that can then offer some clarity in
Speaker 1: these circumstances. The idea that the Court is recognizing in
Speaker 1: a comedy, the split second decisions police might make through
Speaker 1: qualified immunity, which is we've said, is a doctrine based
Speaker 1: on this idea of notice that has no basis in
Speaker 1: reality really feels like a missed opportunity for the court
Speaker 1: to offer some clarity about the law. The doctrine of
Speaker 1: qualified immunity has come under increased scrutiny following the murder
Speaker 1: of George Floyd and other acts of excessive force by police.
Speaker 1: Does it affect the way police officers act to know
Speaker 1: that they're basically going to be covered in a civil
Speaker 1: case afterwards. So one important thing to remember about qualified immunity,
Speaker 1: and I think it gets obscured a lot in the
Speaker 1: current debate, is that qualified immunity is not what shields
Speaker 1: police officers from paying settlements and judgments from their own
Speaker 1: bank accounts. It's been described and defenders of qualified immunity
Speaker 1: has said that it's necessary to protect officers from being
Speaker 1: bankrupted for lawsuits based on, you know, reasonable mistakes made
Speaker 1: in a split second. But officers are already protected from
Speaker 1: having to pay in these cases because states and local
Speaker 1: governments have what are called indemnification rules and policies that
Speaker 1: provide that when an officer is stued, their employer will
Speaker 1: pay the settlement for judgment. It's a matter of law
Speaker 1: that they are obligated to do so, and there are
Speaker 1: some exceptions that are carved out into those statutes when
Speaker 1: officers have acted maliciously or are criminally prosecuted. But when
Speaker 1: I studied police and domestication practices around the country, I
Speaker 1: found that eight percent of the dollars that are paid
Speaker 1: to people in police as conduct suits come from government budgets,
Speaker 1: not from police officers bank accounts. So qualified immunity does
Speaker 1: not provide that shield. And I think the Fourth Amendment
Speaker 1: already provides the shield to protect reasonable officers from constitutional violations.
Speaker 1: So what does ending qualified immunity or what does qualified
Speaker 1: immunity do, and what would end being qualified immunity do?
Speaker 1: I think that that qualified immunity right now makes the
Speaker 1: law unclear for law enforcement and for courts and for
Speaker 1: the general public. There are parts of this country where
Speaker 1: courts have not ruled yet that it is protected by
Speaker 1: the First Amendment to record the police, a concept that
Speaker 1: has been critically important to our current conversation about policing
Speaker 1: and an issue that has been particularly relevant since the
Speaker 1: advent of smartphones. But in some parts of the country,
Speaker 1: courts have not yet ruled on that question, and I
Speaker 1: think the reason for that can be traced right back
Speaker 1: to qualified immunity, because courts can grant qualified immunity without
Speaker 1: ruling on whether the Constitution was violated. And that's just
Speaker 1: one example of the way in which the law becomes
Speaker 1: less clear because of qualified immunity. Without qualified immunity, there
Speaker 1: would be more clarity that could then be incorporated into
Speaker 1: police policies and trainings and into our general understanding. And
Speaker 1: I also agree with Justice so to Mayor that these
Speaker 1: decisions with qualifying facts, where officers are shielded from liability
Speaker 1: because there doesn't happen to be a prior court case
Speaker 1: with virtually identical facts, sends a shoot first, think later
Speaker 1: message to police. So I think that ending qualified immunity
Speaker 1: or greatly limiting it would have very important effect for
Speaker 1: law enforcement. But it still would not mean that officers
Speaker 1: would be personally financially responsible for paying settlements and judgments
Speaker 1: in these cases, or that they would be found to
Speaker 1: have violated the Constitution when they made reasonable mistakes. So
Speaker 1: it seems like the likely path to change this qualified
Speaker 1: immunity doctrine is through legislation. Do you see that happening
Speaker 1: at the state level. I know that there are I
Speaker 1: think seven state qualified immunity bills have been enacted. There
Speaker 1: is motion and activity on the state level, and I
Speaker 1: think that the gold standard really is Colorado, where a
Speaker 1: bill was passed in June, right after the murder of
Speaker 1: George Floyd, and I think, buoyed by a sort of
Speaker 1: shared sentiment in that moment that something really needed to change.
Speaker 1: I think that their bill is the most ambitious, But
Speaker 1: there have been other bills that have followed in New
Speaker 1: Mexico and in New York City and some other places
Speaker 1: as well. There have also been many states in which
Speaker 1: qualified immunity bills have been introduced, and there have been hearings.
Speaker 1: I've participated in some of those hearings, and they have
Speaker 1: been shelved for the moment or rejected really in each
Speaker 1: time based on what I consider to be groundless fears
Speaker 1: about bankrupt officers and lawsuits that challenge reasonable conduct, of
Speaker 1: the typical fears about what a world without qualified immunity
Speaker 1: would look like that that are not based in reality.
Speaker 1: Is there anything happening on the federal level. In the
Speaker 1: summer of the House passed the George Flood Justice and
Speaker 1: Policing Act, which included, among many, many different provisions and
Speaker 1: ends to qualified immunity, and that did not move forward. Then,
Speaker 1: nearing the anniversary of George Flood's murder, that bill was
Speaker 1: reintroduced and re passed in the House, and again it
Speaker 1: stalled in the Senate. In the summer of tim Scott
Speaker 1: described qualified immunity reform as a poison pill to the negotiations,
Speaker 1: and in one it seemed perhaps that there was going
Speaker 1: to be some common ground for a shift to qualified immunity,
Speaker 1: a limitation to qualified immunity, But the negotiations in that
Speaker 1: bill have fallen apart as well. Thanks for being on
Speaker 1: the show, Joanna. That's Professor Joanna Schwartz of u c
Speaker 1: l A Law School. And that's it for the sedition
Speaker 1: of the Bloomberg Law Show. Remember you can always get
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Speaker 1: Grosso and you're listening to Bloomberg