← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Who Gave ICE Permission to Trample the Constitution?
00:50:17
The Supreme Court’s expanding doctrine of qualified immunity is swallowing your constitutional rights whole
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- [00:00]
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Mark Joseph Stern
Hot take.
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Mark Joseph Stern
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- [01:42]
Dahlia Lithwick
I'm Dahlia Lithwig.
- [01:46]
Kristi Noem
The precedent here is very simple. You have a federal law enforcement official engaging in federal law enforcement action. That's a federal issue. That guy is protected by absolute immunity. He was doing his job to all ICE officers.
- [01:58]
Blueland Advertiser
You have federal immunity in the conduct of your duties.
- [02:01]
Kristi Noem
I didn't say, and I don't think any other official within the Trump administration said that officers who engaged in wrongdoing would enjoy immunity. That's absurd.
- [02:08]
Blueland Advertiser
You have immunity to perform your duties. And no one, no city official, no state official, no illegal alien, no leftist agitator or domestic insurrectionist can prevent you from fulfilling your legal obligations and duties.
- [02:24]
Alex Reinert
We have a constitution that is supposed to be meaningful in this country and it's supposed to govern the conduct of all of our officers. And it is perverse that we have a federal constitution that means less for federal officials than it does for state and local officials. We have a federal constitution that is harder to enforce against federal officials than almost anyone else.
- [02:51]
Mark Joseph Stern
If you've been having trouble sleeping, the.
- [02:53]
Dahlia Lithwick
Image of a five year old boy in a hat with droopy bunny ears emblazoned across the inside of your eyelids, you're not alone.
- [03:03]
Mark Joseph Stern
Or the terrified face of an older man in shorts and Crocs, shirtless, handcuffed, stepping into frigid Minnesota air surrounded by armed men in fatigues and masks.
- [03:16]
Dahlia Lithwick
Or if the revelation of a secret.
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Mark Joseph Stern
Intern memo advising ICE officers that they.
- [03:21]
Dahlia Lithwick
Don'T need a judicial warrant to force.
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Mark Joseph Stern
Their way into private homes.
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Dahlia Lithwick
If that's keeping you up at night.
- [03:27]
Mark Joseph Stern
Well, after years of not knowing how to calibrate our levels of alarm and constantly being told that everything was an overreaction or that we were hysterical, if.
- [03:38]
Dahlia Lithwick
You, too have reached that not sleeping at night stage of America's democratic unraveling, we see you. From my bleary eyes to yours, I see you.
- [03:48]
Mark Joseph Stern
This week saw yet more assaults on innocent civilians, on civic life and on your constitutional rights and the law. It also saw wild claims from the administration that everything they are doing is.
- [04:01]
Dahlia Lithwick
Perfectly legal and perfectly normal. In the immediate wake of the murder.
- [04:05]
Mark Joseph Stern
Of Renee Good, we talked about possible pathways to accountability. Last week, March Joseph Stern talked to a former prosecutor from the criminal section of the DOJ's Civil Rights Division about the upside down inside out of pursuing prosecutions against local officials in Minnesota while refusing to investigate the ICE officer who pulled the trigger.
- [04:28]
Dahlia Lithwick
But these sweeping claims of immunity didn't.
- [04:30]
Mark Joseph Stern
Start with ICE officer Jonathan Ross. Nor do they date back to Donald Trump's conception of his own personal immunity.
- [04:38]
Dahlia Lithwick
I like to call it celebrity immunity.
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Mark Joseph Stern
If you're famous, they let you do it.
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Dahlia Lithwick
No immunity for state actors goes way back. And much of what we are seeing on the ground now in terms of.
- [04:48]
Mark Joseph Stern
Immigration enforcement has its antecedents in long.
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Dahlia Lithwick
Standing and I think deeply flawed American ideas about who are the good guys and who are the bad guys and accountability and punishment.
- [04:59]
Mark Joseph Stern
There are few people more qualified to explain qualified immunity and its corrosive effects on civil rights and democracy than my guest, Alex Reiner. He is the Max Freund professor of Litigation and Advocacy at Cardozo School of Law. He's director of the center for Rights and justice and co director of the Florsheimer center for Constitutional Democracy. Alex Reiner, welcome to Amicus.
- [05:26]
Alex Reinert
Thanks so much. It's great to be here, Dalia.
- [05:29]
Dahlia Lithwick
Tell me if I'm wrong. But just to start us off, at least according to reporting I saw in Wired, when Jonathan Ross shot and killed Renee Nicole Goode on the morning of January 7th in Minneapolis, she became one of at least 25 people shot and killed by an Immigration and Customs enforcement agent since 2015. And we like to talk about Trump and immunity as though this all started very recently or it's all. All the fault of the Roberts courts and the immunity decision. But ICE agents, like all federal agents, are protected by qualified immunity, and that protects them from lawsuits for constitutional violations committed in the course of duty. And we've had that for a long time. And I would love it, because I'm not sure listeners know exactly what that means. If you would take us all the way back and help us just to understand this foundational idea that for the most part, law enforcement officers just can't be held liable for their actions when they violate your rights. And why this seemed like a good idea and how we got here.
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Alex Reinert
Sure. I mean, there's really two foundational ideas that are in play in these cases involving federal officials. One is what I'm about to talk about, which is qualified immunity. And a second is, which I know we'll get to something called Bivins doctrine, which is this common law doctrine that allows people, or used to allow people to sue federal officials for constitutional violations. Let's talk about qualified immunity. Qualified immunity is not long standing in the sense that it's really a modern introduction to the law of constitutional torts was introduced by the Supreme Court in 1967 in the context of a Freedom Riders case. So it was the context of a case in which a lawsuit was brought against state and local officials. And the Supreme Court basically said, well, we think even though Congress didn't spell it out in detail in a statute that gave you the right to sue these officials, even though Congress didn't say anything about an immunity doctrine, we think this common law doctrine that may have existed in 1871 should be incorporated into our constitutional tort regime. Fast forward to 1982, which is where we got a case involving a federal official. And in that 1982 case called Harlow vs Fitzgerald, the Supreme Court said, well, we also think there should be an immunity doctrine that applies to federal officials. I'm simplifying the story a bit, Dalia, but from 1982 onward, that case, Harlow versus Fitzgerald, is really the modern qualified immunity doctrine that we've been dealing with. And what it means in practice is that any officer, whether state, whether local, whether federal, who violates the Constitution, won't be held liable unless there is some prior case that makes it clear from a court's perspective that the officer's conduct was obviously a violation of the Constitution. So it's only really used or it really only has an impact when an officer already is violating the Constitution. Right if officers don't violate the Constitution, they don't need the protection of qualified immunity. It's only when officers violate the Constitution that they are able to obtain the protection of qualified immunity. And on its face, if you explained it to somebody and said, well, look, we should only hold officers liable when they were on reasonable notice of the unlawfulness of their conduct, I think on its face, people might look at it and think, oh, that makes sense in practice. In practice, it has been applied in the widest range of circumstances where I think most people would say, how is it possible? How is it possible that somebody could get immunity when, for instance, there is ordered by their supervisor not to fire a shot and they fire six shots and kill someone? When they are executing a search warrant and they decide to steal about $200,000 worth of valuables, and a court says, well, there's qualified immunity because there wasn't a prior case on point saying, when you're executing a search warrant, you can't steal money. Those are the kinds of cases in which qualified immunity comes into play. And so I think it's probably shocking, I think, to the ordinary person, that in this country that is purported to be governed by the rule of law, where the Constitution is thought of as fundamental foundational, that violations of the Constitution by our highest level officers and officials aren't remediable because of this doctrine of qualified immunity.
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Mark Joseph Stern
And I wonder, Alex, if it makes.
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Dahlia Lithwick
Sense to do Bivens now so that we've sort of set the table for everything that's gonna follow.
- [10:14]
Alex Reinert
Absolutely, because this is the other part of what is such a, I think, perverse design of our constitutional scheme. So Bivens is special because it applies just to federal officials. When state and local officials violate our rights, there's a statute that goes all the way back to Reconstruction, enacted in 1871, that allows us to sue state and local officials for violations of our constitutional rights. And qualified immunity still applies, but at least there's a right to sue. There is no similar statute when federal officials violate the constitution. So in 1971, in a case by the name of Bivins, the Supreme Court said, we think that we are going to find a right to sue in the fourth Amendment for fourth Amendment violations when federal officials violate someone's rights. And then over the course of the next 10 years, the Supreme Court expanded that doctrine to include Eighth Amendment violations, to include claims for sex discrimination. And an important part of the story also that's going on right now during the 70s, is lower courts were rapidly expanding the Bivens doctrine. The thinking was what the supreme court did in 1971 was basically create a doctrine for federal officials that was parallel to the section 1983 doctrine that applied to state and local officials. Well, all that changed in 1980. From 1980 on, the Supreme Court has said we are not going to entertain Bivens actions. And the court has given us a variety of reasons to the point where today when the Supreme Court hears a Bivins claim, it basically says we're not sure that this court would even recognize the right to sue federal officials for constitutional violations. We're certainly not going to extend that right to sue beyond the narrow category of the three cases in which the Bivens right was recognized in the 1970s. And we're going to confine those categories very narrowly. So what does that mean? Well, in Bivens, the case was a Fourth Amendment case brought against federal law enforcement officers who had gone into someone's home, strip searched them, humiliated them, used force against them. Supreme Court has said, okay, when we see another Bivens case also involving a Fourth Amendment violation, also involving the use of force, also involving entry into a home, we're going to say it's different than that 1971 case if it involves a different kind of officer. Right. The 1971 case basically involved the precursor to the DEA. Well, so if it's not a DEA agent, it's different from the 1971 case and therefore no remedy. That's the extreme way in which the court has narrowed that Bivens remedy.
- [13:04]
Dahlia Lithwick
There's one other filament that's been floating in the conversation, at least as around Jonathan Ross and Renee Goode, and that is self defense, that he has some claim that to quote Kristi Noem, she was a terrorist, you know, that she was attacking him. And that separate, apart from these affirmations, there is this defense that is she.
- [13:29]
Mark Joseph Stern
Was trying to kill him.
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Alex Reinert
Well, that seems ludicrous on its face, given what I know about the facts. But let's assume for the moment that an officer did actually reasonably fear that their life was in danger and reasonably believe that in order to respond to that threat, they needed to use deadly force. I don't think, at least as I have seen the facts, there is any plausible argument that that was what was happening when Ms. Good was killed. But let's assume an alternative set of facts in which that's true. Well, if that's the case, then again, you don't need an immunity doctrine to protect you. If you're a federal official, the Fourth Amendment itself. So you don't violate the Fourth Amendment if you act reasonably. And there's Fourth Amendment doctrine that says officers may use deadly force if they reasonably believe that somebody posed a threat of death or serious bodily harm to themselves or others. That's Fourth Amendment doctrine. And if I'm an officer who uses force in that circumstance, then I haven't violated the Fourth Amendment. Which gets back to the point I started with, which is you don't need qualified immunity if you haven't violated the Constitution. And I think one thing that's important to know about our constitutional doctrine is that it already gives a lot of leeway to officers. So it already recognizes that, you know, courts shouldn't second guess, use 2020 hindsight to decide whether or not an officer's conduct was reasonable. We judge the reasonableness from the perspective of the officer in the moment at the scene. So there's lots of protection already built into the doctrine that has nothing to do with qualified immunity. And then I'd also say back to the Bivens point. In a situation like the killing of Ms. Good, I really think most courts would, applying at least the Supreme Court's jurisprudence, would say that's a new Bivens context. And since it's a new Bivens context, we probably won't find a right to sue under the Constitution. So there wouldn't even be an opportunity to test whether or not the officer's conduct was reasonable, because there wouldn't even be a right to get into the courthouse door. I mean, that's really what I think is so perverse about what the Court's Bivens doctrine has done to our jurisprudence. I come back to this principle that we have a Constitution that is supposed to be meaningful in this country, and it's supposed to govern the conduct of all of our officers. And it is perverse that we have a federal Constitution that means less for federal officials than it does for state and local officials. We have a federal constitution that is harder to enforce against federal officials than almost anyone else. And that's really a product of the Bivens doctrine. And the last piece of this that I think, again, is important just historically for people to understand is this wasn't the model of remediation that we had in the 19th century. You could sue federal officers in the 19th century when they violated your rights. It was not a unique occurrence. It was accepted that this was a way for people to obtain remedies. It also was accepted that it was a way to test the legality of executive conduct of policies and conduct of federal officials. And now we live in this world in which there are so many barriers to that kind of accountability, to that kind of tests for legality.
- [16:56]
Dahlia Lithwick
And am I right that in the sort of post reconstruction legislation around some of this, the thinking was, of course a lot of law enforcement officials are violent and aggressive. I mean, it was very clear eyed in a sense that we're not now about like they're not all in good faith all the time. That seems to be an idea that we have lost along the way, right?
- [17:20]
Alex Reinert
Yeah, I mean, I think that there's lots, of course, that went into the post reconstruction legislation. A lot of it was about state sanctioned violence against especially newly emancipated black people. And it wasn't just state sanctioned violence. It was private violence that states would turn a blind eye to. And so there was an understanding that we couldn't expect states to police themselves. And so we needed to have a federal remedy in order to make sure that these new rights that came out of reconstruction could be enforced and enforced in federal court in particular. So I think that's part of it. I think that we also need to talk about law enforcement. We need to be thoughtful about the vocabulary we use. And I think to some degree the policing institutions have captured the term law enforcement for themselves. So any attempt to regulate the conduct of policing institutions, whether they be federal or state or local, are framed as well. You're not sympathetic to law enforcement. And I think the response is no. Law enforcement means enforcing our laws. It doesn't just mean policing. And one of the most important kinds of laws that we need to enforce are our constitutional rights. And so I think we need to recapture the idea that we want a fulsome attitude towards law enforcement. And I think that was what 1871 and the reconstruction was about was. We have these new laws, we need to make sure they're enforced and we need to provide a muscular regime for enforcing them. So I think there's lots of ways in which the world we have today is not the world that I think the reconstruction legislators set out to create.
- [19:11]
Mark Joseph Stern
More in a moment with Professor Alex Reinert. The Trump administration is gutting environmental protections on a scale never seen before. Opening pristine wildlands to drilling, rolling back pollution standards, blocking clean energy projects, weakening species protection. But there's a movement that's fighting back and it needs your support now. The Natural Resources Defense Council combines the power of 3 million supporters with 700 lawyers, scientists and advocates. This community gives NRDC the collective power to hold corporations accountable and win in court. That's how they won nearly 90% of cases against the first Trump administration, protecting endangered species, blocking harmful pipelines, and safeguarding clean air and water. Every victory happened because people refused to stand by and do nothing. Join this powerful movement preserving the natural world for future generations. Donate@nrdc.org Amicus and your gift will be matched 5 times.
- [20:16]
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- [22:21]
Mark Joseph Stern
Let'S return now to my conversation with Alex Reinert.
- [22:27]
Dahlia Lithwick
Can we do one last beat on qualified immunity? Because I think you're saying, and I know you've written this separately, that in addition to just immunizing law enforcement from accountability, the ever growing wingspan of qualified immunity comes with this very, very crab test, right? That law becomes frozen in time, because unless you can prove that the law is clearly established and that the officer knew it, you lose anyway. And I think that what you're saying is it's a kind of a different flavor of the sort of originalist, you know, nostalgia for the past, but it does mean that the law can't evolve and grow using this as a framework, right?
- [23:11]
Alex Reinert
That's absolutely right. And to explain it, I'm gonna have to become a proceduralist for a moment, which for me, of course, is a comfortable hat to wear. But one of the things that I said at the outset was, well, qualified immunity really is only valuable to those officers who violate the Constitution. And as you say, one of the tests for qualified immunity is, did the officer violate clearly established law? Was the law clearly established at the time the officer acted? Not at the time the lawsuit is being la litigated, but at the time the officer acted. So for some time, the way courts approached the question was to say, well, the first thing we have to answer is, did the officer violate the Constitution? And then we'll decide whether or not the officer was entitled to qualified immunity. And if you set up your procedure that way, at least you get an answer to that first question, which is, was there a violation of the Constitution? So then, even if the court then goes on to say there was a violation of the Constitution as we understand it, but it wasn't clearly established at the time the officer acted. Well, at least then from henceforward, we know what a violation of the Constitution is. And now we've got clearly established law to work with from that point on. Well, the Supreme Court changed that in the 2000s and said, we're not going to require courts to answer the first question first. We're going to allow courts to jump to the second question. And this is a procedural sort of regime that has the effect that you just explained, which is now courts can just decide, was the law clearly established at the time the officer acted? And if the law wasn't clearly established, we don't ever learn whether or not there was a constitutional violation. All we learn is the law wasn't clearly established. And so we never develop the law in a way that courts are used to developing the law. And it becomes harder for the next plaintiff, the next injured person, the next family of someone who was killed to show that there was clearly established law. Because the last case never gave us an answer to that question. It just said, well, we know it wasn't clearly established, but we don't know what the law is. Now, I'll say that's bad as just a way of designing courts. Right? That's just a bad way to design courts. We want to learn. We want to learn from our mistakes. We want their law to be able to develop if it should. It's bad, obviously, for people who are bringing these kinds of claims. I want to say it's bad for policing. Like I think many people who police want to police consistent with the Constitution. And I think having answers to the question of when they violate rights and when they don't should be important to them. And I think it is important to them. And so we're losing all these opportunities in these cases to develop the law in ways that I think helps everyone.
- [26:11]
Dahlia Lithwick
So, Alex, one of the reasons I felt like we needed to talk to you this week is because we're now living in a world where immigration law is kind of swamping everything you and I thought we knew about the criminal law. And I think that it's certainly the case that in the last couple of years the Supreme Court has applied some of these doctrines to immigration agents who are, you know, shooting and hurting people. Case from 2020. Case from 2020. That further, I think, consolidates the notion that you've described just generally that private citizens are finding it harder and harder and harder to go after federal agents, even for harm. And so I would just love for you to reflect for a minute. And we've had guests on this show who have warned us time and time and time again that what we think we know about how the criminal law operates has just been suspended in the immigration context. And the ways in which, if this is correct, the Supreme Court has also sort of aided and abetted some of that slippage.
- [27:19]
Alex Reinert
Well, there's no question that the Supreme Court has aided and abetted that slippage. So I think some of the most outrageous cases that I see in this context are Bivens cases, in which one example is the Hernandez vs. Mesa case where a border Patrol officer shoots an unarmed 15 year old person on the other side of the Mexican border and the family of that 15 year old brings a lawsuit under Bivens. And the Supreme Court says, no, no Bivens remedy. And here's why. Basically, it's a Different context. It's immigration. There's lots of quote, unquote, special factors that counsel hesitation. That's one example. Another example, Zigler vs Abbas, which was a case that I was involved in at a later stage of the litigation, but it involved the treatment of post September 11 detainees who also were in immigration detention, in which again, it involved the right to bring a lawsuit under Bivins. And the Supreme Court said, well, high level policymakers shouldn't be subjected to Bivens litigation. It really should only be line officers who are subjected to Bivens litigation. And think about what that says. What that says is the people with the most power right to affect people's lives through the kinds of policies that this administration and prior administrations have implemented. Those people are going to be the people who are most immunized from accountability when those policies violate people's rights, result in death and injuries. So that's another example of those cases. I think that, and I know we want to talk about this too, the recent disclosure that ICE seems to think that it can enter people's homes just with an administrative warrant instead of a judicially approved warrant is another potential inflection point here where frankly, the Supreme Court hasn't answered this question. But I think there's a good argument that it should be a violation of the Fourth Amendment for ICE officers to enter someone's house with just an administrative warrant and not a judicially approved warrant. But we could certainly imagine the Supreme Court going in another direction, and that's another place where that kind of decision erodes everyone's rights. Now, of course, we should be concerned about anytime rights are eroded, even if it's narrowly cabin to one particular group in this country. But that's not the way constitutional rights work. Constitutional rights generally are hydraulic in the sense that it's hard to cabin.
- [30:06]
Mark Joseph Stern
The.
- [30:07]
Alex Reinert
Limitation of rights to one kind of person or one category. And anytime the court undermines rights for anyone, it's a threat to all of the people in the United States. So these are all the things that I think the court has done over the years, and every administration to some degree, has been a part of it. I think the current administration is taking a particularly extreme approach to what limits there are to the power of federal officials. But the story that I told about the erosion of our rights under BIVINS Doctrine from 1980 on, every administration, whether it's Democrat or Republican, from 1980 on, argued strenuously before the Supreme Court to limit the right of people to sue federal officials for constitutional violations. So it's something that I think to some degree everyone bears responsibility for the current situation in which we find ourselves.
- [31:11]
Dahlia Lithwick
I do want to talk about how we get ourselves out of the situation, but since you raised it, I do think it has been a bombshell of a story in the last couple of days. The AP reporting via a whistleblower that ice, as you just noted, in violation of longstanding fourth Amendment principles, is taking the position that they can just enter folks house without a judicial warrant.
- [31:32]
Mark Joseph Stern
They can use an administrative warrant.
- [31:35]
Dahlia Lithwick
And the whistleblower complaint alleges that this memo, which is secret, which is this funny, like they show it to you in a secret room and then you tell people. I mean it's the most weirdly, weirdly backward dissemination of legal guidance that I've ever experienced. But here we have acting ICE Director Todd Lyons, who allegedly signs the memo saying, quote, although the U.S. department of Home Security has not historically relied on administrative warrants alone to arrest aliens subject to final orders of removal in their place of residence, the DHS Office of General Counsel has recently determined that the US Constitution, the INA, and the immigration regulations do not prohibit relying on administrative warrants for this purpose, end quote. And I guess I should also note that the memo says, quote, the ICE policy authorizes agents to use necessary and reasonable amount of force to enter the alien's residence. And this is shocking at about 15 levels, Alex, and I'm gonna let you kind of pick your poison, but I think one of the things that does strike me as important is it feels like it's very emblematic of this slippage we're talking about, which is ICE enforcement obliterates everything you and I understand about the warrant requirement in the Fourth Amendment. And it's just such a sort of minnow swallowing the whale of doctrine that we have Lear and that the Constitution protects against, and then sort of cavalierly saying, oh, it doesn't matter because we.
- [33:08]
Mark Joseph Stern
Can enter your home as long as.
- [33:10]
Dahlia Lithwick
There is a deportation order.
- [33:12]
Alex Reinert
So I think it is extremely concerning and also an untenable interpretation of the Fourth Amendment. I'll say the Supreme Court hasn't addressed this question, but the whole premise of the warrant requirement is that there be some independent adjudicator, someone outside the executive branch to decide whether or not there is a justification for invading the sanctity of someone's home. And administrative warrants don't provide that judicial warrants do. Doesn't mean judicial warrants are perfect, but they are at least outside the executive branch. And the administrative warrants don't provide any of that protection. And it's important from a separation of powers perspective. Of course it's important, again, from an institutional design perspective. We already have so much about the immigration system in which the executive has so much authority over the appointment of immigration judges, all of these policy memos. So to fold the power to issue warrants and act on warrants into the executive in this way is just an extreme power grab. It also, you know, the line about use of force again, gets us back to what we were talking about with Bivens and qualified immunity, which is when the officers use force in those circumstances, when they go overboard in their use of force, as inevitably some will, what kinds of remedies will there be? Those will be few and far between. And it reminds me of Justice Kavanaugh's concurrence in Noem Vasquez Perdamo where he says, you know, people are talking about use of force. Well, this case isn't about use of force. If there's a use of force, then people should be able to go to court and sue at the same time. That Justice Kavanaugh is one of the justices who has led the charge for undermining the Bivens remedy. It's exactly what the Supreme Court does in so many contexts in the civil rights world where they'll say, well, we're not going to give you this remedy here, but don't worry, there's all these other ways you can enforce your rights. And then when they're over there in the other box, they say, oh, well, we're not going to allow you to enforce your rights here because there's something else over here. It's just a. Pam Karlin calls it, you know, a shell game. Basically, when I'm over here, I'm going to say, don't worry about me limiting your rights because there's some other way for you to enforce them. And then I'm just going to undermine your means of enforcing them in that other part of the jurisprudence. And it is troubling to the extreme that ICE officers are gonna be acting on this authority for sure.
- [36:00]
Dahlia Lithwick
I'm loathe to bring you to J.D. vance, but I'm gonna do it anyway. Only because he made the slightly astonishing claim immediately after Jonathan Ross shot Renee Goode that Agent Ross had, quote, absolute IMM because he was engaged in federal.
- [36:18]
Mark Joseph Stern
Law enforcement action when he shot her.
- [36:20]
Dahlia Lithwick
And then I think he's tried to walk that back this week. I don't know if it's a walk.
- [36:27]
Mark Joseph Stern
Back, we can have a listen.
- [36:28]
Kristi Noem
I didn't say. And I don't think any other official within the Trump administration said that officers who engaged in wrongdoing would enjoy immunity. That's absurd. What I did say is that when federal law enforcement officers violate the law, that is typically something that federal officials would look into. We don't want these guys to have kangaroo courts. We want them to actually have real due process, real investigation, because again, sometimes they're accused of wrongdoing, and it turns out when you learn the context, they didn't actually do anything wrong. But of course we're going to investigate these things. Of course we're investigating the Renee Goode shooting, but we're investigating them in a way that respects people's rights and then ensures that if somebody did something wrong, yes, they're going to face disciplinary action, but we're not going to judge this in the court of public opinion.
- [37:09]
Dahlia Lithwick
I'm not even sure what that walk back constitutes, but I guess I will just ask you the broad question about what Vance seems to be asserting, which is some version of either that federal officials have near absolute immunity or that it will be taken care of by other federal officials, or that the court of public opinion, whatever that is, is where we've been trying federal officials thus far. So I don't know what any of that means, but if you want to try to clarify, I'm here for it.
- [37:39]
Alex Reinert
I don't know if I can clarify other than I read it as this is the world he would like to live in. Right. He would like to live in a world in which essentially federal officers can do what they wish without any oversight from anyone. I would say, as a matter of law, of course, it's absolutely false to say that just because a federal officer is engaged in some kind of law enforcement operation, they're entitled to some kind of immunity, whether it's immunity vis a vis the Supremacy Clause against sort of state officials prosecuting or investigating that kind of conduct, or whether it's some other kind of immunity, just absolute immunity, for engaging in some kind of federal law enforcement operation. It's flatly not the law, and of course it shouldn't be the law. It would be outrageous if it were the law. It would be incredibly dangerous if it were the law. I don't know. Right. If push comes to shove, whether or not that's a position the Department of Justice would assert in any legal proceeding involving the killing of Ms. Good or some other kind of misconduct by federal officers, I know that it seems that the federal government is doing its best to ensure that the question would never come up by essentially blocking any investigation, criminal or otherwise, into the killing of Ms. Good. So it would be shocking, if should be shocking, I guess. But we also are living in a world in which there's shocking comments made like this on many occas by the current administration.
- [39:14]
Mark Joseph Stern
We're going to take a short break. The Trump administration is gutting environmental protections on a scale never seen before, opening pristine wildlands to drilling, rolling back pollution standards, blocking clean energy projects, weakening species protection. But there's a movement that's fighting back, and it needs your support now. The Natural Resources Defense Council combines the power of 3 million supporters with 700 lawyers, scientists and advocates. This community gives NRDC the collective power to hold corporations accountable and win in court. That's how they won nearly 90% of cases against the first Trump administration, protecting endangered species, blocking harmful pipelines, and safeguarding clean air and water. Every victory happened because people refused to stand by and do nothing. Join this powerful movement preserving the natural world for future generations. Donate@nrdc.org amicus and your gift will be matched five times.
- [40:20]
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- [41:29]
Dahlia Lithwick
More now on federal law enforcement immunity and your constitutional rights with Alex Reinert. I really want to give you an opportunity to amplify two strains that you've been circling and I think emphasizing both in prior writing and in our conversation today. One of them is you have said, and I think this is true, both sides absolutely bear responsibility for Allowing qualified immunity for allowing this capacious notion of the idea that officers just cannot be held accountable and that both sides have allowed for that for a lot of reasons. The other thing that you've written about a lot, and I think this is an important place to land, Alex, is that this is fixable. And it's not just fixable through legislation. It's not fixable through cross your fingers and wait for a more favorable administration. This could be fixable tomorrow if certain commitments were made. I know those are not necessarily completely linked and you can decouple them in your answer, but I do think those are both points that you've been making for a long time.
- [42:38]
Alex Reinert
Yeah, I think so. I want to talk about the different levels at which it's fixable. Of course, it's totally fixable at the federal level. Right. I mean, there has in the past been legislation introduced to abrogate qualified immunity. There's been legislation introduced that would create a right to sue federal officials for violations of the Constitution. It's really easy to do. And if there were any political will for it at the federal level, yes, of course it could be done tomorrow. I don't think waiting around for the Supreme Court to change composition or change its views necessarily is going to bear fruit. I will say in the area of qualified immunity, there are some signs that at least some of the justices on the court, from broad parts of the ideological spectrum, might have interest in revisiting qualified immunity. Justice Thomas most famously has said, at least as it applies to state and local officials, he's not sure that qualified immunity is a valid doctrine. And certainly some justices on what we would call the left wing of the court, I think, have raised questions about qualified immunity. So there's some prospect maybe of the court revisiting it. And then the last piece of it that I think is important that is starting to get more attention, thanks to the efforts of lots of people, is think about the role of states in fixing this. States can easily fix qualified immunity as to state and local officials, and Jim Fandor, Joanna Schwartz and I have been sort of written a paper about this. We've talked to legislators in different jurisdictions about ways to do this. Some states have. Colorado and New Mexico have done so on a limited scale. The city of New York has done so on a limited scale scale. So it's well within the authority of state legislators to make those changes. And in the aftermath of the murder of George Floyd, there are about 20 or 21 attorney generals in the states who weighed in in support of the George Floyd justice and Policing act, which of course, had a provision that abrogated qualified immunity. Those. Those attorney generals are also the attorney generals whose departments are raising qualified immunity as a defense in cases in each of their states. And so, again, in the interest of saying people need to bear accountability and take responsibility for their role in the doctrine we've created, I've always thought those attorney generals should think very carefully about how they make arguments in defense of officers who are sued in their states. The last piece of of it, which is a little harder to wrap one's arms around, but I think is possible to wrap one's arms around, is the role of states in regulating federal officials. States have always been able to prosecute federal officials. This is where Vance's statement about absolute immunity is just so flat out wrong. Right. States can criminally prosecute federal officials. And if the state of Minnesota had access to enough information and thought that there was probable cause to prosecute Officer Ross, then they could do so. The other thing that states can do is themselves create a cause of action, a civil cause of action that gets around all the problems with Bivens Doctrine that we've talked about, which allows federal officials to be sued under state law for violations of the federal Constitution. And it's even possible, I think, for states to say there can be no qualified immunity, that's a little harder, but I think it's certainly possible. And some states have been thinking about this. Illinois just passed legislation that allows individuals to sue officials who violate the Constitution when they're engaged in civil immigration enforcement. It doesn't say anything about qualified immunity, but that's a cause of action that could extend to federal officials. California's Bain act, people have argued that it applies to federal officials. And there's also some recent legislative activity to amend it to explicitly make it apply to federal officials. And then there's been some legislation introduced in New York that would also allow for a state law cause of action against federal officials. So I think there's ways for us to get out of the situation in which we find ourselves. There are easier and harder ways to do so, and there are ways that would create a more uniform approach around the country, but that may not be possible for a while. And so I think until that's possible, politically, I think it's really important for states to think about what they can do in their states to protect the people who live there from what, frankly, is an attempt by this administration to really change the nature of our civic life. I mean, that's what I think is happening here. And having an ability to go into court to challenge what the federal administration is doing is important. It's not going to solve the problem, of course, but it's one way for people's voices to be heard, for maybe people to obtain some remedy, to at least require that there be some answer to how this is being done, to why it's being done, to what costs it's imposing on everyday people living in the country.
- [48:12]
Mark Joseph Stern
That's such a nice segue to the last question I wanted to ask, which is a little bit maybe philosophical and meta, but we're here for the meta.
- [48:23]
Dahlia Lithwick
And that is you've just identified, I think, the ways in which it's easy to assert, oh, you know, this can be handled at the state and local level. This can be handled, you know, in a lot of ways by really reassessing how we think about accountability. And in the same breath, I think you're pointing out that's a really hard thing to do for state and local officials because they tend to want to support the notion of qualified immunity. And that tension, I think, has really been shot through this conversation. Alex, and I'd love to end on this. Our friend Sherrilyn Ifill has written that really, until we do a serious reckoning with how we think about policing, how we think about race and policing, how we think about excessive force and militarization of policing, we can't answer these questions that you're raising today and that we talk about this era we're in. And we're really comfortable talking about voting rights reform, right? We're really comfortable talking about other things that seem to be cratering, but that there has been a real silence around reforming the way we think about policing. And as a consequence, sort of in that silence, we have to grapple with that which makes us very uncomfortable. And I don't mean us as you and me, but I think a culture that has kind of turned a blind eye to a lot of these issues is suddenly startled by the ways it's been weaponized for immigration enforcement. And so I'd love for you, just in closing, to sort of gently reframe. I know you've been doing that throughout this conversation, how we need to think about this in ways that are conducive to meaningful accountability and conducive to having.
- [50:14]
Mark Joseph Stern
A civic life that doesn't include masked officers, pepper spraying, somebody who's already restrained on the ground.
- [50:21]
Dahlia Lithwick
How do we think in a bigger, more generous way about getting to where we want to be? And what have the blind spots been that led us so far down this rabbit hole?
- [50:31]
Alex Reinert
Well, that is a big question, of course. And I think that, I guess I would think about it in at least two different ways. The first is, I think part of the reason there's resistance to increasing accountability, particularly for our policing apparatus. And it has to do with the sense that it's a hard job. Of course it is a hard job. And it's a job that at some level most people think we need people to do. And what do we do when something that people see as really important, that's also hard? What do we do when that imposes costs, when that. And that imposes costs on people who did nothing wrong, who are left traumatized, maybe dead, seriously injured. And I've always thought that the problem with a lot of that doctrine we've been talking about is it leaves those costs on the people who suffered them. It leaves those costs directly on the people who suffered them. If we think there's something good that comes out of police, if we think it creates some value for the public writ large, why should the costs be borne solely by the people who suffered most significantly as a result of it? So that's one piece of it that resonates with me about why some of the doctrine we've been talking about is so, so wrong. I also want to say for a while, or at least for, I don't know how long of a moment after, after the murder of George Floyd, there was a conversation, I mean, I would go to demonstrations and I'd see signs that said end qualified immunity. Right? So there was a way in which the doctrine that really mostly lawyers knew about and mostly other people didn't know about, and mostly scholars were talking about it was a way in which the doctrine came into the public consciousness and became important, important. I think there is still some of that going on. And so I think there is still some momentum for that. The last piece of it is when we think about accountability, we usually think about accountability for an individual, an individual who behaved in some unlawful way. And there's a lot of ways in which it makes sense to think about accountability that way. But the problems we're talking about I think are systematic. Doesn't mean there aren't some individuals, aren't some so called bad apples who, no matter what kind of training we have, no matter what way we approach hiring, no matter what kind of supervision we provide, there are some people who may just act egregiously because they can, because they have a badge. But I think for the most part, the problems we're talking about are systemic. And if the problems are systemic, then talking about accountability for individuals isn't necessarily the right frame. I think we need to approach solutions to the problem systemically. And those solutions are as much about, well, who ends up paying the damages for the people who suffer. Should it be the individual officer or should it be the departments that employ them? As a matter of practice, it's always the departments who employ them. So we need to find a way for those agencies to learn better, better from the kinds of misconduct that their officers enter into. But it's also about the legal regime that we set up to allow people to sue and what kinds of things they sue for, the way we really limit the ability of people to bring so called injunctive relief, systemic reform of departments. And so if we think about accountability more broadly and we think about the problems we've been talking about through a systemic lens, I think it's not so much about the individual officer. It's about creating a regime, a legal regime that allows us to get answers to the questions of how people were mistreated, whether the way in which they were mistreated was unlawful, and making sure that we can build systems so that it doesn't keep happening. Because right now we're in a world where it is happening over and over again and it seems like there are very few tools in our toolbox to prevent the reoccurrence.
- [55:03]
Mark Joseph Stern
Alex Reinert is the Max Freund professor of Litigation and Advocacy at Cardozo School of Law. He's director of the center for Rights and justice and co director of the Florsheimer center for Constitutional Democracy.
- [55:16]
Dahlia Lithwick
Alex, this has been unbelievably helpful for me in thinking this through. I am so grateful for your time. Thank you for me joining joining.
- [55:23]
Alex Reinert
Thanks so much for having me. It was great to talk with you. Dalia.
- [55:30]
Mark Joseph Stern
That's all for this episode. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming even if they're just.
- [55:38]
Dahlia Lithwick
Panicked primal screams in email form. We appreciate hearing from you.
- [55:43]
Mark Joseph Stern
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- [55:47]
Dahlia Lithwick
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- [55:57]
Mark Joseph Stern
Us on Apple Podcasts.
- [55:59]
Dahlia Lithwick
On today's Amicus plus bonus episode, Mark Joseph Stern joins me to discuss the important lesson we learned in both Davos and the Eastern District of Virginia this week. Trump Taco Time. Meet some very pissed off judges. You can subscribe subscribe to Slate plus.
- [56:16]
Mark Joseph Stern
Directly from the Amicus show page on.
- [56:18]
Dahlia Lithwick
Apple Podcasts and Spotify, or visit slate.comamicus+.
- [56:24]
Mark Joseph Stern
To get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus senior producer. Our producer is Patrick Fort, Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond.
- [56:44]
Dahlia Lithwick
Is our senior director of operations.
- [56:47]
Mark Joseph Stern
We'll be back with another episode of Amicus next week. The Trump administration is gutting environmental protections on a scale never seen before. Opening pristine wildlands to drilling, rolling back pollution standards, blocking clean energy projects, weakening species protection. But there's a movement that's fighting back and it needs your support now. The Natural Resources Defense Council combines the power of 3 million supporters with 700 lawyers, scientists and advocates. This community gives NRDC the collective power to hold corporations accountable and win in court. That's how they won nearly 90% of cases against the first Trump administration, protecting endangered species, blocking harmful pipelines, and safeguarding clean air and water. Every victory happened because people refused to stand by and do nothing. Join this powerful movement preserving the natural world for future generations. Donate@nrdc.org amicus and your gift will be matched 5 times. Times.
- [58:07]
Elise Hu
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