The Real Scandal Behind Qualified Immunity

Police officers attack someone, beat him up, arrest him with a false claim that he assaulted them or resisted arrest. Unfortunately for them, someone recorded the action on his cell phone. Eventually charges are dropped and the victim sues. The police officers defend themselves under the doctrine of qualified immunity, the legal rule that holds that they are not civilly liable unless their act was not only illegal but obviously illegal, sometimes interpreted as requiring a past case where the same act was found illegal by a court. 

The defense sometimes fails, often succeeds, a result that has gotten quite a lot of criticism, much of it probably deserved. What mostly doesn't get criticized is the fact that actions which are, on their face, obviously criminal — beating someone up is assault and battery, whether or not the perpetrator is a police officer — are being punished, if at all, only by a civil suit. 

The reason is quite simple. Legally speaking, the victim of the crime is not the person who was beaten up, it is the state he lives in. If Mr. Smith assaults me and the case comes to trial, it will be not Friedman vs Smith but State of California vs Smith. Criminal prosecution is controlled by the state, so crimes the state does not want to prosecute don't get prosecuted. If Mr. Smith happens to be a police officer, the state knows that prosecuting him, convicting him, and locking him up for a year will make it harder to hire police officers, as well as provoking conflict with the police union. So, most of the time, it doesn't. A civil case is created and controlled by the actual victim, so in practice civil cases are usually the only way of punishing criminal acts by people the state approves of, such as its employees.

This issue was first brought to my attention in a case where the crime in question was not assault and battery but first degree murder, the killing of two Black Panthers by Chicago police back when I was a graduate student in Chicago. None of the killers were tried, but the city, state, and county ended up settling civil claims for well over a million dollars. 

There is a possible solution, one that actually existed in a legal system ancestral to ours. In England in the 18th century, any Englishman could prosecute any crime. In one famous case, a magistrate instructed troops to open fire on a crowd of demonstrators, several people were killed, and the magistrate ended up tried for murder. 

If he had been convicted the King could have pardoned him, but pardoning an official, or a policeman, who has been convicted of murder is a much more visible act than never charging him. And England in the 18th century still had in law, although not in practice, a legal action, the Appeal of Felony, which was an entirely private suit for a criminal penalty. The King was not a party to the suit and so, according to Blackstone, could not pardon a convicted defendant.

For more on the subject, see the chapter on 18th Century England in my Legal Systems Very Different from Ours. A late draft is webbed.

Covid: Cases vs Deaths

News stories keep reporting record numbers of cases but not record numbers of deaths. Santa Clara County, where I live, shows detailed information on both, and the divergence is striking: Looking at the graphs, the case rate began to climb rapidly about a month ago, the death rate appears to be holding roughly steady. We would expect deaths to lag cases, but not by a month.

The divergence is less striking in the U.S. figures, but it's still there. Roughly speaking, over a period when case rates are more than tripling, death rates are doubling. I don't have the data in a form that would let me do a more precise comparison, but that seems to be the pattern so far.

Three possible explanations occur to me. One is that we have more testing, with the result that more of the milder cases are being spotted. If so, the reported increase in cases exaggerates the real change. A second is that we have gotten better at treating Covid, which would be good news but consistent with the increase in cases being real. A third is that fewer of the patients are old. Has anyone here spotted an analysis of the data that can distinguish among those alternatives? 

Two Sections of my Next Book Up For Comments

As I have mentioned here before, I am currently mining fifteen years of blog posts for one or more books. I now have drafts  of the first two sections of one book webbed for comments, a section on libertarianism and a much shorter section on religion. Feel free to comment here or by email to ddfr@daviddfriedman.com.

Evidence that Aging Can Be Reversed

There is a recent report out on an Israeli experiment which seems to have reversed two of the cellular processes associated with aging — shortening of telomeres and cellular senescence. It used hyperbaric oxygen, given daily over a period of months, and the effects appear to be large.

It's possible that the result will turn out to be mistaken — the confidence intervals for the various effects include zero, although most of them are significantly positive. It is also possible that the experiment is changing the cellular markers and not whatever underlying biology they are associated with.

The obvious next things to do are to repeat the experiment, ideally with more subjects and varying the procedure, and to observe the subjects of the first experiment to see whether physical effects of aging are being reduced.

But if it's real, it's huge, since the experimental results are for humans, not mice, the procedure should be easy to duplicate at relatively low cost, and we ought to have much clearer results in only a few more years. I've been saying for a long time that the cure for aging will probably come in time for my children but not for me, but perhaps I was wrong.

I would be interested in comments from anyone here with relevant expertise.

Is the governor of California a Liar or a Hypocrite?

Gavin Newsom, who has supported a variety of restrictions in order to slow the spread of Covid, was caught blatantly violating his own rules, attending a dinner with a large number of unrelated people, sitting close together, not wearing masks. He claimed it was outdoors, but that turned out to mean a room that had glass doors to the outside which were closed because the dinner party was a noisy one. He has been suitably apologetic, conceded that it was something he ought not to have done.

There are two possible interpretations of his behavior, depending on whether one regards the primary function of masks as protecting the wearer or protecting everyone else. If it is protecting the wearer, than his behavior is strong evidence that he doesn't believe in the claim on which his rules are based, since he was willing to do without that protection for himself. At least, he doesn't believe in it for men in their late fifties — and there has been no suggestion in the rules he imposed that they only apply to those of us sixty-five and over.

If one believes, perhaps more plausibly, that the primary function is protecting other people, than his behavior is evidence that he is a hypocrite, willing to impose on other people risks that he forbids them from imposing on each other, but not that he does not believe the claim those rules are based on.

A third possibility is that he is merely a snob, someone who believes in his heart, although he would never say, that pandemic diseases only infect his social inferiors.

What I Find Depressing About the Election Outcome

From a short term standpoint, the outcome was about as good as I could reasonably hope for, assuming that the Republicans will win at least one of the two Georgia Senate runoffs. I was mostly worried that one party, more probably the Democrats, would end up with control of both houses and the White House. Since I expect either party to do mostly bad things, divided government is the least bad alternative.

In the longer run, the situation is depressing. Trump did well enough so that, whether or not he tries to run again, the coalition he created will survive. That means that we will have, for the foreseeable future, two parties neither of which has even a rhetorical commitment to the free market. The Republicans are against free trade and immigration, and the Democrats are against practically everything else.

Did the FDA Deliberately Help Biden Win?

 If so, do you approve?

The FDA and Pfizer arranged to have the tests that ended up showing their vaccine more than 90% effective done last Wednesday, the day after the election. It's clear from the account of what happened that there were multiple decisions that could have been made a little differently and would have produced the information a little sooner.

The obvious conjecture is that the timing was deliberate, that they expected a positive result and thought that announcing it before the election would help Trump. The alternative is that this is just another example of the FDA being (I think over) cautious, making absolutely certain the vaccine works, at a cost of about a thousand lives for every day of delay.

The more interesting question, for me, is whether Biden supporters believe that if it did happen, they approve. Would such a decision count as indefensibly using powers given to the FDA for entirely different purposes to meddle in the election, or as a responsible decision to save America from another four years of Trump? How deeply is "The end does/doesn't justify the means" embedded in the value system of commenters here and on FB, where I also posted a version of this?

Also of interest is whether there are any Trump supporters who believe that, if it happened, it was a defensible, if unfortunate, decision, that they would approve if something similar had been done by someone on their side.

You can find my view of the ends/means question in the relevant chapter at:

http://www.daviddfriedman.com/…/Ideas%20I_%20A%20Book%20fro…

That's a collection of draft chapters for the book I'm currently writing.

Designing Trump Mark Two

Trump lost this time, but it's clear that, politically speaking, he was doing something right as well as some things wrong, pulled into his coalition quite a lot of new people while pushing other people out. Suppose another politician wanted to copy the successful parts of his strategy while avoiding, so far as possible, the unsuccessful parts. How would he do it?

Part of what worked was coming across as someone who could not be pushed around, who responded to attacks by counter attacking. Would it work to tone that down a little, only attack people who are very clearly attacking him rather than anyone who says anything critical? Or would that just lose him opportunities to show what a he-man he is?

I suspect that the rhetorical exaggeration, the sort of thing that comes across to many as deliberate lying — "we'll build a wall and make Mexico pay for it" — also helped him with his supporters, not because they believed him but because they automatically discount that sort of bluster and the discounted version was something they could believe in. 

The Mark Two version would have to keep Trump's major positions, including hostility to immigration and trade, unfortunate from my point of view but pretty clearly part of what worked. It didn't cost him the Hispanic vote, as many seem to have expected — he did better there than any Republican candidate since Eisenhower. I'm not sure if he has to maintain Trump's policy of outsourcing judicial choice to the Federalist Society, one of the two features of his term that I on the whole approved of. He has to be willing to appoint judges conservatives will like, but that isn't necessarily the same thing. He probably does have to maintain Trump's hostility to foreign military intervention, the other thing I approved of — unless there is some incident such as 9/11 that makes a hawkish response briefly popular with almost everyone. 

One thing I'm not sure of is how much, if any, of Trump's crude, rude, abrasive presentation produces a net gain in votes, how much a net loss.

I haven't been distinguishing between what the candidate has to do to get elected, which Trump did, and what he has to do to get re-elected, which pretty clearly at this point Trump is not doing. And these are preliminary thoughts. Do others have ideas? I am more or less assuming that Trump Mark Two would be another Republican, but he might not have to be.

What the Polls Got Most Wrong

I've just been reading a very perceptive piece by Andrew Sullivan, a left of center writer generally skeptical of left-wing orthodoxy. One part of it struck me as especially interesting:

Eric Kaufmann, one of the most astute political scientists writing today, notes that the segment of the Trump vote the polling missed was educated white voters. He suspects they were afraid to say out loud to pollsters how they were really going to vote. After all, “45% of Republicans with degrees, compared to 23% of Democrats with degrees, said they feared that their careers could be at risk if their views became known.”

So the polling got the less inhibited white non-college-educated Trump voters right, but the graduates very wrong: “The exit polls show that Trump ran even among white college graduates 49-49, and even had an edge among white female graduates of 50-49! This puts pre-election surveys out by a whopping 26-31 points among white graduates.” The threat of wokeness both alienated educated white voters — and caused more of them to vote Trump than anyone expected. The problem with woke media is that they mislead Democrats who then misread the country.

Another part of the Sullivan post that I liked:

And this is where I think I have been wrong about Trump’s appeal, and where I think I’ve misunderstood why otherwise decent people could support such a foul disrupter of democratic norms. Many of them simply didn’t take Trump’s threat to our system seriously. They took all his assaults on democracy as so much bluster from the kind of car salesman he is. They deal with this kind of bullshit all the time, took liberal democracy for granted and saw little reason to fret about its future. The writer Jamie Kirchick says that everything Trump says makes sense if it is preceded by the following words: “And now, Donnie from Queens, you’re on the air.” Many people heard Trump exactly that way, and couldn’t see what all the fuss was about.

The one thing I think Sullivan, along with a good many people I'm seeing on FB, gets wrong, is concluding that the fact Trump has apparently lost says something important about the American people. Trump losing has important implications for the next four years. But in an election this close, where the result would have been reversed if one percent of the votes switched from Biden to Trump,  which side of the win line the outcome came out on says very little about the electorate.

Sullivan provides parts of his output free by email, which is how I am getting it, a larger amount, along with reader comments, for subscribers on Substack. I considered subscribing, as a substitute for Slate Star Codex until it reappears, possibly also on Substack. But unlike SSC, Sullivan's The Weekly Dish posts only a selection of reader's comments, and I don't feel entirely comfortable participating in a conversation where whether my comments appear is up to someone else. 

But I may change my mind. Certainly this post was worth reading. 

Capitalist vs Socialist

 I had a debate today with Richard Wolff, a socialist economist, and it has been webbed.

Two Scenarios for Future Fiction

I have been thinking about ways in which things might develop over the next few decades and have two ideas that someone might build stories around.

1. Permanent Covid. Suppose it turns out that a vaccine producing long term immunity is not possible and that even short term is not very reliable or comes with unacceptable risks, so society has to adapt to the continued existence of the disease, as it already has to flu. Mortality rates will presumably go down as we get better at treating the disease but remain substantial for the more vulnerable parts of the population, especially the old. What happens?

One is that retiring at something between 65 and 75 becomes social as well as professional. Younger people, facing a mortality risk of under one chance in a thousand, mostly ignore Covid, as they mostly ignore flu now. Older people interact almost entirely with each other. With luck, we have either fast and cheap testing or some subset of people known to be immune, so there can be some younger people interacting with the older, but for the most part, medical care for the elderly is provided by elderly nurses and physicians, haircuts by elderly barbers. Interaction with adult children and grandchildren is either online, as I currently Skype with my grandson every week, or carefully organized with suitable precautions, perhaps as one weekend a month in some suitably isolated holiday spot, with everybody getting tested immediately before the event starts.

After a decade or so, it's the new normal.

2. The Unplanned Results of Vote by Mail. One feature of mail-in voting that I have not seen discussed is that it makes vote buying possible. For a mass production version, the purchaser buys hundreds of ballots, fills them in, has them signed in a variety of handwritings — nobody is actually likely to check, even if the signature is supposed to match one on file somewhere — and mails them in. 

The obvious place to start is with local elections where fifty or a hundred votes can change the outcome. But once you have a hundred ballots, selling only the votes on one issue is an obvious waste; you may not care about everything else on the ballot, but other people do and will pay for their desired results. Buying votes will presumably remain illegal, but with a reasonably well organized black market, such as what existed for alcohol under prohibition or for other illegal drugs since, it might be doable. As with bootlegging, it could become a recognized, if not openly approved of, part of the system. As the market develops, probably online and protected by public key encryption, it looks more and more like a conventional market, with known prices for what are, after all commodities — one vote for candidate X is a perfect substitute for another. 

My wife, reading this over my shoulder, objects that vote buying, unlike bootlegging, is not a victimless crime. The candidate you are buying votes against has an incentive to go after the seller — who is, after all, breaking the law. I am not so sure. After all, that candidate may also want to buy some votes, in this election or the next. If he has a reputation as a trouble maker who tries to get honest businessmen into trouble with the law, he may have a hard time finding a seller.