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

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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.

Writing to Local Politicians- Qualified Immunity

 

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Author’s Note: This will be the last blog entry concerning Qualified Immunity for awhile. I don’t want my blog to become too stagnate so I will reconvene on this topic at a later date.  If you wish to learn more about  Qualified Immunity or stay on top of the latest developments I would recommend visiting the Unjust Shield blog.  This essay was a letter sent to several Arizona representatives requesting that they assist in the effort to abolish QI. This political luminaries included: Mark Finchem, Vince Leach, Martha McSally, and Kyrsten Sinema.

 

June 25th, 2020

Peter Clark

peterclark7979@gmail.com

The Honorable (Insert name here).

 

 

Dear Representative (Insert name here)

 

 

The death of George Floyd has ignited a renewed interest in policing reform.  Purposed reform measures have ranged from increasing training requirements to dissolving police departments. I would personally suggest eliminating one of the institutional protections that shield negligent police officers from accountability, Qualified Immunity. A legal doctrine originally intended to protect government employees from being sued for performing essential job functions, providing their actions do not violate any well-established rights. Unfortunately, this protection is slowly starting to become a form of absolute immunity. Per the 2018 paper by the University of Chicago legal professor William Baude the Supreme Court general overturns instances where the lower courts deny Qualified Immunity to police officers. Demonstrating the failure of the checks-and-balances on this legal privilege. This matter is only exasperated by the Supreme Court’s decision last week to refuse to reconsider this legal doctrine.

 

 

The innumerable examples of officers that have clearly violated the rights of American citizens and are still granted Qualified Immunity are horrifying. In the case of Baxter V. Bracey (2014) a suspect was attacked by a police dog after having surrendered to the arresting officers. There was the case of Jessop v. Fresno where officers stole rare coins and cash totaling over $225,000.00 during a search of a private residence.  In the case of Mullenix v. Luna (2010) where the officer performed a dangerous maneuver that he had no previous training to stop a high-speed chase. In any other occupation not only would the employee be fired, but in most cases be held liable for damages in the event of a lawsuit. If arresting officers were cognizant of the fact that they could be sued, wouldn’t they be less inclined to take risks? To adequately tackle such examples of negligence incentives, need to be realigned.  Qualified Immunity creates such a sturdy safety net for police officers that either consciously or subconsciously take this legal protection for granted. This leads to the above-described examples of malfeasance.

 

As any reasonable person can tell you defunding the police or dissolving police departments is not a realistic solution. It is practically infeasible and tantamount to political suicide. Instead of abolishing the institution, it is best to implement checks-and-balances. Rather than construct bureaucratic and legal safeguards that insulate civil servants from the consequences of gross ineptitude. Whether that be through criminal prosecution or Tort law. The best way to start would be by eliminating Qualified Immunity. I respectfully ask that you support any initiative on the state level to help abolish this problematic legal privilege. Qualified Immunity is recognized in Arizona law under ARS 36-738.

 

Sincerely,

 

Peter Clark

 

 

 

 

Why Ending Qualified Immunity Is A Better Policy Option Than Defunding

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If someone puts their hands on you make sure they never put their hands on anybody else again.”
Malcom X

 

Libertarianism holds that the only proper role of violence is to defend person and property against violence, that any use of violence that goes beyond such just defense is itself aggressive, unjust, and criminal”
Murray N. Rothbard

 

 

Author’s Note:  Thank you Professor F.E. Guerra-Pujol for your assistance with editing this op-ed piece. Your stylistic and grammatical recommendations have brought this essay to the next level.

The essay was published by the AZ Capitol Times

 

Don’t defund police; eliminate qualified immunity

 

The Unpublished Letter to the Editor (QI)

 

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Author’s Note: I submitted this piece to several local newspaper outlets. It appears as if none of these establishments have elected to publish my brief essay. It is possible that the my writing is a little weak. Even the topic is too technical or controversial.

I still applaud myself for attempting to take this on this issue in only 200-250 words ( Pinal Central: limit of 250 worded. AZCentral: limit of 200 words). This maybe a lesson to avoid issues that are overly complex when writing a letter to the local newspaper. Qualified Immunity requires more than 250 words to be properly addressed. I even had to cut references to William Baude’s 2018 paper on the subject.

That doesn’t  mean I have given up, there is another local publication that publishes longer form editorials.  After that I might give QI a rest, as I don’t want the content on  this blog to become to stagnant.

The top photo has nothing to do with the topic at hand. The free photo application   on WordPress was giving me some issues. So I decided to upload this photo I took back in April. I was walking my dogs around the neighborhood and thought the painted rock was interesting.

 

Editorial:

 

Dear Editor,

The death of George Floyd has left Americans with many questions. How did the police officer that killed Mr. Floyd still have a job after 17 previous complaints? How do we as a country combat police brutality? One potential solution may come from Representative Amash’s proposal to abolish Qualified Immunity. What is Qualified Immunity? It is a legal doctrine that protects government employees from being sued for performing essential job functions. Providing their actions do not violate any well-established rights.

 

The modern application of this legal status was defined by Harlow v. Fitzgerald (1982). Establishing the need for clear “statutory” evidence that the plaintiff’s rights have been violated. Eventually evolving into the requirement for a previous case in which the details of the violation are identical. Leading to instances of constitutional violations with no restitution. One glaring example, Baxter V. Bracey (2014), where the suspect was attacked by a police dog after surrendering. These strict requirements make it nearly impossible to seek proper recourse when our civil rights have been infringed upon.

 

Most police officers are decent and law-abiding. Few would ever dream of using cruel or unnecessary tactics to subdue a suspect. The minority of bad cops need to be held fully accountable for their actions. The best way to do so would be eliminating institutional barriers to punishment.

Unlawful Assembly and The Limits of Free speech

city group people police
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My own opinion is enough for me, and I claim the right to have it defended against any consensus, any majority, anywhere, any place, any time. And anyone who disagrees with this can pick a number, get in line, and kiss my ass.”
― Christopher Hitchens

 

There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
― James Madison

 

 

There is a fine line separating protected speech from destructive behavior. Many onlookers have questioned the efficacy of peaceful demonstration (see comment below the article).  After all,  in the tragic death of George Floyd, the government has violated its contract to the people. In a Lockean sense, we exchange unfettered freedom for state protection of our rights. This theoretically voluntary arrangement is undermined when state power takes primacy over contractual  fulfillment. Outrage is certainly warranted. Especially when those who have sworn to protect this social contract are the ones benefiting from the institutional loopholes. However, what is the appropriate course of action?

 

Qualified Immunity has protected scrupulous police officers from being accountable for their transgressions.  Putting into question whether America still holds its founding ethos of Classical Liberalism in high-esteem.  If public officials can violate our rights with little to no repercussions, our experiment has failed.  Giving credence to all of the subterfuge and rent-seeking behavior that distinguishes Public Choice Theory.  We as a society pay the cost for the few that benefit from this privileged legal status. We pay for it through the sacrifice of our civil liberties. Demonstrating the concept of “concentrated benefits and dispersed costs“.  In some instances, we require protection from our designated protectors. Creating an atmosphere of pessimism and incredulity. Amounting skepticism of justice and equality under the law in the United States. Leading the most disenfranchised Americans to resort to violent demonstrations. If the microphone or the pen does not convey your point, maybe the sword will.

 

That is not to say that all of the protests in reaction to the murder of George Floyd have been violent. I applaud my own community of Maricopa, Arizona for keeping demonstrations civil. Unfortunately, that can’t be said for every community.  Every community should keep their conduct civil. Despite the violence perpetrated by state actors. Why?  Because looting and wanton vandalism is not a vocalization of injustice. Its a deterioration of civilization. It is an erosion of the informal norms and values that keep our passions in order. It merely victimizes innocent parties. The business owner that had their store looted did not participate explicitly or implicitly in killing Mr. Floyd. How is this action even remotely connected to the issue at hand? Or even justifiable?  It isn’t. Sure, there are probably proverbial “bootleggers” hiding under the moral guise of demonstrating against police brutality. Creating the perfect pretext for taking advantage of the situation.  There are those on the side of the “baptists” who believe the use of force is justifiable, even when directed at uninvolved third-parties.

 

Destroying private property in protest is not justifiable. If anything it mirrors the same folly of police brutality. Both are property rights violations. Hence, why crimes against person and property are often parceled together. This is far from a novel concept in Libertarian thought. Many proponents of a natural rights approach have already made this observation. We as autonomous actors are owners of ourselves. In turn, we own our bodies. As slavery has long since been abolished. An adult of normal intellectual capacity possess self-ownership. Meaning they can choose what they ingest, read, listen, and so on. Involuntary and undue harm induced by injurious actions taken by a second actor is a clear property rights violation. While more of a peripheral violation, the destruction of a storefront is nevertheless a similar transgression. In other action, you are depriving the elementary freedoms of the individual. However, the property rights pertaining to “self-ownership” takes primacy.

 

Putting aside these abstract philosophical tenets, violent protest is not justifiable under current law.  The First Amendment of the  U.S. Constitution is not absolute and does have a number of notable exceptions.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

For instance, the use of  “fighting words” is not protected speech under the First amendment.  This legal term was defined in the case Chaplinski V. New Hampshire, 315 U.S. 568 (1942).  This excludes words mean to incite violence or other forms of unrest. The Arizona chapter of the ACLU has a running list of varieties of prohibited speech. There are a number of well-defined restrictions when it comes to protesting demonstrations.  Which includes civil disobedience, any dangerous actions, obstructing roadways without a permit, harassment, or interference with private property.  Violation of any detailed criterion will make the demonstration an unlawful assembly.

The statues explicitly pertaining to unlawful assembly and riots in Arizona state law include the following.

ARS 13-2902:

A. A person commits unlawful assembly by:

1. Assembling with two or more other persons with the intent to engage in conduct constituting a riot as defined in section 13-2903; or

2. Being present at an assembly of two or more other persons who are engaged in or who have the readily apparent intent to engage in conduct constituting a riot as defined in section 13-2903 and knowingly remaining there and refusing to obey an official order to disperse.

B. Unlawful assembly is a class 1 misdemeanor.

 

ARS 13-2903:

A. A person commits riot if, with two or more other persons acting together, such person recklessly uses force or violence or threatens to use force or violence, if such threat is accompanied by immediate power of execution, which disturbs the public peace.

B. Riot is a class 5 felony.

 

Both laws are quite clear on the defining parameters of acceptable forms of protest. Neither statue condones the destruction of private property. Individuals who were not involved in incidents of police brutality should not be punished by the fallout of violent demonstrations. I should note that not all of the protests have been violent. I fully acknowledge this point. Any instance of violent protests is unacceptable. Mirroring the fact that police officers using excessive force to subdue a suspect is never permissible. Either action violates the natural rights of the victim. The Non-Aggression Principle asserts that we should not inflict undue harm on others any such action is inherently transgressive. However, this philosophical tenant does not apply to self-defense. The only circumstances under which violent actions are ethical is in self-defense or defense of your property. Under any other contingency, you are the one at fault.

 

Please note that I am equally repulsed by the abuse of police power as I am by the violent protests.  I would surmise are not as prevalent as the media portrays.

 

There are also examples of police officers assaulting peaceful protestors.

Letter to the Editor- Coast to Coast Riots

photo of person reading
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Published by Pinal Central.
Dear Editor,

 

As the old saying goes two wrongs do not make a right. Nothing excuses the atrocity committed against George Floyd. However, this reprehensible action does not reflect law enforcement as a whole.  This as with all instances of police brutality is a shameful outlier. The situation should be handled with justice served through proper legal recourse.

 

The folks who are frustrated by these occurrences do have a right to express their opinion. The First Amendment of the United States Constitution protects the right to peaceful protest.  What the various protests across the county have devolved into is undefendable. Looting, vandalism, violence, and other varieties of wanton chaos. Most of these reactions are  fueled by visceral outrage. Such reactions are not responsible nor constructive avenues for enacting change.  Destructive actions can only make a bad situation worse. No amount of unfocused retaliation will bring about reform or justice for Mr. Floyd. It will only hurt more people.

 

Continuing this cycle of violence and destruction helps no one. I would urge all demonstrators to emulate the peaceful protests of Dr. Martin Luther King Jr. and Gandhi. Two of history’s most influential protesters never restored to violence. They both lead the way to genuine reform without compromising on civility . Measured and nonviolent communication carries more weight than reactionary rage.  Both Gandhi and Dr. King were living proof.

Bootleggers & Baptists IV: Good Cop, Bad Cop. Qualified Immunity.

crime scene do not cross signage
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Introduction:

 

Last Monday, the country bared witness to another occurrence of police brutality. In the death of  George Floyd. This miscarriage of justice and abuse of power has not come without repercussions. As riots break out across the country, demonstrators seethe with vitriolic indignation. Looting, vandalism, another means of violent action stirring chaos in America’s urban centers. The byproduct of fermenting resentment engendered by feeble responses by policymakers to similar circumstances. While frustration is understandable, these actions are not justified. Projecting your angst on innocent parties will not fix any institutional shortcomings in the justice system.

 

However, most law enforcement officers do not brutalize the suspects they apprehend. Most dutifully follow proper procedures when using force to subdue a suspect. It is important to remember that one bad apple does not represent all law enforcement agents. Even if most cops are honest and decent that does not mean that we cannot advocate for reform. Reform measures that can provide less protection to the few malevolent outliers.

 

Upon reading an article on the blog  The Volokh Conspiracy, I was horrified to learn about the background of the officer charged in Floyd’s death. The fact that the officer implicated in Floyd’s death had 17 prior complaints. He had been put on administrative leave in the past for “using lethal force”. To only compound matters, the notes detailing disciplinary parameters for this officer were scant. The city of Minneapolis has a well documented reputation for not reprimanding officers who violate procedure.

 

The question becomes how did this officer fall through the cracks? Shouldn’t he be held accountable for his transgressions? The author of the previously cited article attributes this failure of the justice system to Qualified Immunity.  This legal protection has been rigorously advocated for by police unions (Rosen, 2005). What is Qualified Immunity?  It is the legal doctrine that insulates civil officials from laws suits when exercising duties within their authority. Unless their actions conspicuously violate “statutory” or “constitutional” rights”. This protection was initially implemented with the best of intentions protecting police officers from frivolous lawsuits (Schwarz, 2014).  Per a 2014 study, instances where victims are awarded damages for law enforcement related rights violations, 99.98 % of the settlements were paid out by governments, not the offending officer! Even in situations where the acting officers’ judgment was profoundly questionable.  Such as Baxter v. Bracey (2018) were two officers “deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up“. Demonstrating that Qualified Immunity could be a significant variable in the lack of disciplinary action taken against exploitative officers.

 

It is reasonable to question how Qualified Immunity relates to Bruce Yandle’s concept of Bootleggers and Baptists. It is important to remember that with every policy position you have various coalitions in the running to champion it. This can be even further divided into categorical subgroups.  Wherever you see an angel a devil is lurking around the corner. For example, one out of every ten teachers is insouciant and does not care about the well being of the students. Still a minority, but that one teacher is the rotten egg of the bunch. They operate as  “moral free-rider“. This individual enjoys the favorable perception of teachers due to the efforts of most teachers without having to live up to such standards. The same is true for police officers. The upstanding and compliant police officers are advocates of qualified immunity. The same is true of the minority of bad police officers. Protection from frivolous ligation is in the best interest of all police officers regardless of performance.

 

Bootleggers:

Police officers who abuse their power and exploit institutional protections. Bad Cops.

 

Baptists:

The Majority of Police officers who are law-abiding and care about their community. Good Cops

 

 

The Parameters of Qualified Immunity:
For the state of Arizona, Qualified Immunity falls under ARS 36-738.  Instead of mulling over the litany of cases about Qualified Immunity, let focus on the test case. Harlow V. Fitzgerald (1982). The case stems from the 1970 termination of A.Ernest Fitzgerald resulting from his testimony before the Economic Joint Committee of the U.S. Congress. His testimony detailed the “unexpected costs associated” with the C5-A transport plane. Believing that his termination was in retaliation he used two presidential aides.

 

Civil servants are not allotted blanket immunity. Rather, there is a specific criterion to determine if they were acting within limits of their job role. Was it extralegal for those two aides to fire Fitzgerald? Providing that they did violate any of his Constitutional rights and it was within their authority to do so, then no. The other piece of the puzzle that muddies the water is that so long that the official’s actions were reasonable and they believed their conduct to be lawful.

 

The Bootleggers and Baptists:

The dynamic of this coalition is quite simple. The good police officers (with the full support of the powerful police unions) justify Qualified Immunity. Why punish good-faith actors who risk their lives to protect us and our property?  They work hard to keep our communities safe. Why should they be held liable for an honest mistake?  Making the “Good Cops” our Baptists.

 

Our Bootleggers, the “Bad Cops” also support keeping Qualified Immunity. Again they have the backing of the police unions. The difference is their ” economic benefit” is not a quantifiable dollar amount. It is an institutional blank check to bend the rules. In some circumstances literally get away with murder. Per the minuscule amount of research  I have done on the topic it would appear as if QI tends to overwhelmingly favor the officer. Even in instances where the officer should not be protected. The few bad apples have the “good cops” taking care of the public perception portion of the equation. While the continue to exploit the flexibility of how QI is applied to law enforcement personnel. Making them the true beneficiaries of this legal privilege.
However, due to wanton and chronic abuse of this legal protection public opinion has started to shift. Especially in the wake of the death of George Floyd.

 

Conclusion:   

 

I will not get involved with the argument as to whether QI should be limited or abolished. That is best left to the legal experts. I will let the senior fellows at the Cato Institute handle that one. However, the arresting officer that killed Floyd certainly had a lengthy disciplinary record. Yet, he still had gainful employment. Leading me to believe that QI has served as a shield this officer from legal and disciplinary consequences.

Above all, I wish the violent protests would subside. It is probably the idealist in me.  Why cause more pain and suffering in the world? It will not undo and of the injustices done to the victims of police brutality.