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.

Privatizing The Police Could Help The Poor

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Among the common arguments against privatizing policing services, one common repudiation is that it would leave the poor under-protected. A security and protection service based on direct billing or a subscription service would exclude individuals of meager means. Raising concerns that a two-tiered system of justice would arise (Benson,1990, p.309)[1]. Under a publicly funded criminal justice system, a “two-tiered” system already exists. Historically, poor neighborhoods have been either under policed or provide an inferior quality of policing services. After years of receiving a low-quality service, the natural consequence is that the residents of these lower-income communities will grow to distrust the police. Justifying the provision of state policing services does not stand up to closer scrutiny. If anything suffers from many of the market failures that critics theoretically attribute to a privatized system.

Many of the over warmed arguments that a for-profit system only stands to skew incentives. The assumption being that firms will desire to keep the costs of production down to increase profits. This notion conjures images of the inadequately trained, middle-aged, and overweight mall security guards making just over minimum wage(Benson, 1990, p.301) [2]. However, few people realize that in light of the growth of the private security industry over the years specialization has created a diverse continuum of security services. Even over thirty years ago there was a vast range of salaries in the field of private security. Some agents even earning $100,000 annual at managerial positions (Benson, 1990, p. 303) [3]. Different types of security would require various levels of credentials and training. Meaning that to a certain degree that a private security detail with armed guards and the security agent at the local mall provides two distinctly different services. Hence, the differential in compensation. It would also be overkill to put the highly trained and combat seasoned armed guard in the security detail for a mall. As the mall has invested in a multi-million dollar security system and cameras (Benson, 1990, p.302) [4]. Reducing the need for such high caliber human capital. If anything does not demonstrate underinvestment in security services, but a high degree of investment in technology. Having a state-of-the-art security system and an experienced arm guard would be enough more than a misallocation of resources. In other words, the firm would be wasting money. Especially when the aptitude of an armed robbery is much lower in a strip mall when compared to a bank.

State-funded policing services are insensitive to the profit-loss mechanism, misaligning the incentives of operations away from efficiency. From a public choice standpoint, the institutional incentives for policing services have been profoundly perverted. Government-funded departments are constantly in competition with other adjacent bureaus for budgetary allocations. Creating the need to demonstrate a demand for the services provided by the agency (Benson, 1990, p. 94-95) [5]. Those in law enforcement keep the demand for their services high through advocating and influencing policy (Benson, 1990, p.109) [6]. Police unions operate as muscular lobbying organizations. For example, police unions funding anti-marijuana campaigns to thwart legalization attempts. Why? Because keeping the sale and consumption of cannabis criminalized (one of the most commonly used illegal drugs) will help solidify job security. Budgets are determined based on need. The publicly funded police respond to crime on a first-come first-service basis leaving many incidences of crime unaddressed until it is too late (Benson, 1990, p.137) [7]. This method while not wholly intentional does help facilitate larger budgets towards various local policing bureaus. A more reactive approach towards crime versus a preventive approach tends to reward the local agency. This is because budgets are predicated on crime statistics (Benson. 1990) [8]. All of these concerns make it kind of ironic that there is so much distrust of private enterprise in handling policing. The claims that private firms will cut corners and “fabricate” offenses to increase profits (Benson, 1990, p.303) [9], when much of this behavior seems to model what is done by state police agencies.

The postulation that a for-profit policing system would benefit the rich, does not take into account that the poor take on most of the costs of the current system. It goes beyond just the misaligned incentives of the public police agencies. A woman living below the poverty line is significantly more likely to be raped (Benson, 1990, p.310) [10]. While this fact may not prove causation is qualitatively indicative of a lack of protection under the current system. Due to higher tax rates in affluent neighborhoods, there are more resources for patrols and crime investigations (Benson, 1990, p.309) [11]. Demonstrating a disparity between the quality of service between poor citizens and rich ones. In a private arrangement, the state would not hold a monopoly on the production and policing services. Allowing less affluent citizens the ability to form their firms and organizations to provide policing for their community (Benson, 1990, p.308-309) [12]. If firms do not provide affordable services the economically disadvantaged can form their institutions. Something that would not be an option for government-provided policing due to political opposition. A prime example of this was measures taken against the Black Panthers’ neighborhood patrols back in the 1960s.

Many pundits could respond by mentioning the difficulty for disaffected communities lacks the organization to form their institutions. However, if we truly treat policing and law enforcement services as a purchasable commodity this collective action problem may soon dissipate. Charitable foundations can be formed to provide communities or individuals with free private security and protection services. Security services can also be gifted on an individual basis through gift cards for private security services. The idea of transferring security services to another person either as a gift or through charity was influenced by an adjacent concept practice in medieval Iceland. In this medieval society like most during the “dark ages” there was no central government. Most adjudication took place within the context of customary law. Meaning that most infractions were resolved through restitution, mimicking modern-day Tort law. If a poor man could not afford to pay his restitution for an offense, a wealthy member of the community could pay it on his behalf. Treating this obligation as a transferrable right (Benson, 1990, p.307) [13]. If historically, the obligation to pay restitution can be transferrable, why cannot policing services also be transferrable? Beyond being able to give such services charitably or as a gift, couldn’t individuals also sell, less, or otherwise transfer unused services? We could even set up private voucher programs for poor communities to receive funds to patronize any security firm of their choosing. All of these possibilities from a prima facie standpoint, appear to be better than the present system.

Why Ending Qualified Immunity Is A Better Policy Option Than Defunding

woman holding a sign in protest
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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