Photo by Megan Markham on Pexels.com

A Step in the Right Direction:

Last month New Mexico joined Connecticut, Colorado, and New York in being the first wave of states to tackle qualified immunity. There is some debate as to whether or not the bill passed by the New Mexican state legislature entails a full relinquishment of the legal doctrine (due to the fact it is a federally recognized doctrine). However, it is still a noble attempt to places limits on an abusive legal privilege. HB 4 passed by New Mexican lawmakers overtly prohibits invoking qualified immunity as a defense in court. Providing the complaint against the offending public official is within the statute of limitations (three years).

DEFENSE OF QUALIFIED IMMUNITY.–In any claim for damages or relief under the New Mexico Civil Rights Act, no public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body shall enjoy the defense of qualified immunity for causing the deprivation of any rights, privileges or immunities secured by the constitution of New Mexico. (HB 4, P.3, Sect 4)

 Regardless of whether this new law functions as an outright nullification of the immunity privilege or operates as an effective restriction, this is still a monumental reform. For any pundit advocating for civil liberties, this is unquestionable a step in the right direction and a model for other states to follow. Such reforms provide the constituency with the assurance that all public officials (not just police officers) will be held accountable. 

The Hippies and The Business Man:

Despite this positive change in state policy, the question remains did any outside interest groups support the bill? The answer is yes, outside interest groups did express support for the new law placing limits on qualified immunity. One of the interest groups even urged voters to engage in political action, by encouraging them to write to their lawmakers requesting they pass HB 4. Two of the more high-profile HB 4 advocates form one of the most ironic “odd-couple” coalitions that anyone could imagine. On the left side of the aisle, there was the Vermont-based ice cream producer Ben and Jerry’s. The founders of the ice cream boutique have long publicly and unapologetically embraced a progressive ethos. The right-wing portion of this unusual coalition is the organization Americans For Prosperity a conservative/libertarian group extensively funded by the Koch brothers. This political union can be best described as crunchy granola meets big oil.

Who Is The Bootlegger And Who is The Baptist?

In his seminal 1983 paper, Bruce Yandle explains oddball political alliances through the lens of a “Bootleggers and Baptists” coalition dynamic. At times, the dynamic can be more of an implicit union, where the Bootleggers ride the coattails of the Baptists through quietly supporting the initiative. In other instances, there is an actual coordinated effort towards collective action between the seemingly opposing political actors. Clearly, the bond formed between AFP and Ben & Jerry’s would be an example of the latter coalition dynamic. It is difficult to ascertain who is providing the moral argument for ending qualified immunity and which group benefits from the legal doctrine being prohibited. Leading to the speculation that this activistic relationship between the two groups could be a less common variant of the B&B coalition. Could both groups concurrently assume the role of Baptists despite their divergent interests? Could they both be Bootleggers? Is it even possible that they are both simultaneously Dual-Role Actors?

There are some salient ways in which both groups stand to benefit from advocating for ending qualified immunity. Since the death of George Floyd, public confidence in policing has hit a twenty-seven-year low. Making it popular to support policies that advocate for policing reforms. Both political actors have distinct reasons for vocally endorsing a bill that ends qualified immunity. For Ben & Jerry’s they appease their progressive peers by fulfilling the ideological obligation of fighting for social justice and racial equality. On the other hand, AFP gains social currency from promoting abolishing qualified immunity, through being consistent with their conservative/libertarian philosophy by justifying a constraint on state power. Outside of building credibility with their ideological peers, they also gain the respect of neutral parties who are currently dissatisfied with current policing practices. Fostering a positive public image can result in more business for Ben & Jerry’s and more donations and support for AFP. 

These inferences regarding the potential benefits of supporting HB 4 derived from a priori reasoning are not irrefutable. However, they are probable incentives either group would possess for their public activism. Both B&J’s and AFP also provide some thought-provoking moral justifications for ending this legal privilege. It would be a fallacy to attempt to paraphrase either group’s moral arguments. Below are direct quotes from both organizations’ websites detailing the moral concerns around qualified immunity.

Ben & Jerry’s Moral Argument:

“….Since George Floyd was murdered by Minneapolis police officers in May, tens of millions of Americans have taken to the streets all across the country to protest police brutality, systemic racism, and white supremacy—and it’s having a huge impact. Statues of enslavers and racists have come down. Black Lives Matter murals have gone up. Calls for defunding the police have run out. And many people—from everyday Americans to activists, athletes, experts, and lawmakers—are demanding the end of qualified immunity.

Qualified immunity? Here’s the deal: Qualified immunity allows police officers, while in the line of duty, to do pretty much anything to anybody, without fear of punishment.

Anyone who’s seen the videos of police violence during these protests is probably thinking exactly what we’re thinking, so let’s all say it out loud: Qualified immunity has got to go.” (Per the 

Ben & Jerry’s website.)

The moral argument for ending qualified immunity depicted on B&J’s website exemplifies the need for racial justice. Reasoning that due to institutional racism there is a dire need to nullify this legal privilege, due to the fact that it does a disproportionate impact on ethnic minorities. Providing a textbook example of social justice argument for abolishing QI. Nevertheless, a moral justification.

American’s for Prosperity’s Moral Argument:

Americans for Prosperity Senior Policy Analyst Jordan Richardson had this to say:

“Qualified immunity may have originated as a doctrine to protect good police officers working in difficult conditions, but now, four decades later, it has morphed into a doctrine that regularly protects egregious violations of constitutional rights. By damaging the trust and confidence that communities have in law enforcement, qualified immunity is harming the very police officers it was designed to protect. We are proud to sign this brief in support of defending fundamental rights and in support of restoring healthy police-community relationships.” (Per the AFP Website).

The argument presented by AFP rests on the standard base constitutionality and state power. Both points have been constant fixtures of right-wing political discourse (at least prior to Trump), making these focal points congenial to a conservative justification for ending QI. All because AFP presents an argument from the standpoint of individual liberty and B&J’s from the perspective of racial justice does not undermine the morality of either paradigm. Morality is not relative, however, it can be pluralistic. A policy can be just or unjust for multiple reasons. Therefore, AFP and B&J’s are concurrently championing moral arguments. It wouldn’t be shrewd to assign dynamic roles to either party, either could be seen as the Bootlegger or Baptist depending upon one’s political proclivities. In doing so we run the risk of veering into the territory of playing the “Red Team- Blue Team” game.

7 thoughts on “Bootleggers & Baptists- XXI: Qualified Immunity, New Mexico, Cherry Garcia, and an Oil Barron

    1. Also, I have a whole new respect for Ben &Jerry’s. While I disagree with there reasons for supporting the end of QI. I really like their passion and the lengths they have gone to educate the general public on the topic.

      I generally avoid sweets, however; I almost purchased a pint of B&J when I went grocery shopping tonight (they deserve the business). Those two old hippies from Vermont have earned my respect.

      Liked by 1 person

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