(((My Fellow Americans))) #98: Seth Stoughton

(((My Fellow Americans)))

About This Episode

What causes police brutality, and how do we stop it? Spike’s guest tonight is Seth Stoughton. He testified in the Derek Chauvin trial, he’s a law professor and police use of force expert, and they’re going to answer that question tonight!

Episode Transcript

This episode transcript is auto-generated and a provided as a service to the hearing impaired. We apologize for any errors or inaccuracies.
[Music] i’ll be buried in my grave before i become a slave yes that is [Music] before [Music] we have solely [Music] i’ll be buried in my [Music] that is [Music] [Music] before i become slave [Music] south carolina you’re watching my fellow americans with your host spike holland yes yes it’s me thank you oh thank you thank you keep [Music] thank you so much for joining me welcome to my fellow americans i am literally spike cohen thank you so much for joining me this wednesday the 27th and uh thank you so much for joining me today on this very special episode of my fellow americans we’re going to be talking about police brutality and how to get to the bottom of it uh very shortly but first let’s just go through the stuff that i always say before we get to the guest this is a muddy waters media production check us out on facebook youtube instagram anchor twitter periscope itunes google play float twitch everywhere check us out everywhere check us out on muddywatersmedia.com uh to see this in every single episode and also go to our anchor anchor dot fm slash muddied waters where you can leave us messages that we will answer every week uh every tuesday usually every tuesday uh this tuesday special um but uh we can um uh we’ll talk later about why i’m doing this show on tuesday and not on wednesday actually i’ll go ahead and tell you now uh tomorrow night we are going to be live reacting to uh to joe biden’s first they won’t call it a state of the union they’re just calling it an address he’s addressing congress but not a state of the union just an address okay so we’ll be uh live reacting to that so i’m doing my show tonight be sure to like us follow us five star us hit the bell if it’s on youtube however it is that you show your approval with what it is we’re doing be sure to do that and share this right now this very second how would we know that you wanted to watch a roughly hour long that’s not the last thing we would want is for you and your closest loved ones to miss out on a roughly hour-long libertarian podcast on a this time a tuesday night usually a wednesday night so be sure to give the gift of spite cohen today kids love it this episode of course is brought to you by the libertarian party waffle house caucus the fastest growing waffle related caucus in this or any other party on this or any other planet become a member today by going to the facebook group libertarian party waffle house caucus and become a duly seated and voting member of the caucus by going to muddiedwatersmedia.com store and buying a libertarian party waffle house caucus button or hat or i think we have a shirt too so go to the store now um this episode of course is also brought to you by the gravy king it’s also brought to you by nug of knowledge smokable cbd products nug of knowledge is not your usual cbd everyday cbd smokable supplier because there are that’s an everyday thing but this one’s not your everyday one because a portion of the proceeds go towards 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this the music the intro and outro music to this and every single episode of my fellow americans comes from the amazing and talented mr joe davey that’s j-o-d-a-v-i joe davey check him out on facebook go to his soundcloud go to his band camp at joedavimusic.bandcamp.com buy his entire discography it’s like 25 and it’s some incredible incredible music uh be sure to listen to the end for the outro music which is every bit as good as the intro music and go buy his entire discography thank you joe davey the water i’d like to think leble drinkable water drinkable that’s what i’m calling it drinkables it’s a drinkable i’d like to thank le blue for this drinkable that i’m drinking uh it is made of i’m not doing the molecular thing i’ve i got shamed enough on that it’s made of water it’s good water i’m told that it has the right proportions of hydrogen and oxygen so uh drink up pulunaka it is good water shout out to tehran turks’s mom as always folks my guest tonight is actually we pre-recorded earlier today he was not going to be able to do it live so i pre-recorded it so i’m not gonna play that but i will be in the comments with y’all commenting so don’t not comment because i’ll be there i’ll be there in fact i’ll be there i’ll be even more present than i usually am usually i have to talk to my guest and check the notes and you know look up what i’m going to ask him next or her next and you know go through you know produce the show and make sure the stream is working i don’t have to do any of that that’s all already taken care of i’m just going to hit this button right here to make it start so that allows me to just comment with you so comment even harder than you usually would and i’ll be hanging out with you and i will be back just as soon as this is over but this was my interview incredible incredible interview with my guest uh police use of force expert and usc law professor seth stoughton enjoy folks my guest tonight is an associate professor at the usc school of law he’s also an associate professor in their department of criminology and criminal justice he was a police officer for five years and is the principal co-author of his book which i have on a different slot so i’m going to leave this part out but he’s the principal co-author of he’s the principal co-author of evaluating police use of force which came out last year and he has written about policing for the new york times the atlantic time and many other publications he teaches police law and policy criminal procedure criminal law and regulation of vice ladies and gentlemen my fellow americans please welcome to the show professor seth stoughton seth thanks for coming on thank you for having me absolutely and folks be sure to comment with your questions and thoughts and i will let you know in the comments if you are right or wrong now seth i before we get started i’m just interested you were a police officer for five years then you become an expert on uh police use of force and a law professor what caused this shift from being a cop to becoming a professor and expert in use of force was there some kind of aha moment that led to that or was this always the plan tell us a little bit about that no yeah sure definitely was not the plan um there was there was quite a bit of time in between when i left the police force and started as a law professor and really started to develop an expertise in use of force i left my police agency full time in late 2005. i stayed on as a reservist a part-time officer for about six months into 2006 when i took a job as a state investigator i was with the florida department of education’s office of inspector general for more than two and a half years before finishing a four-year degree that took me 10 years because i’m a little slower than the average pair sometimes and then went to law school and when i went to law school my thought was i was leaving all this criminal stuff behind i had sort of been there and done that with different aspects of criminal law not as an attorney but i was at least familiar enough with it to think that i was done and then in law school i had some amazing professors and i got sucked back into looking at policing from an academic and especially a legal academic perspective so that set me down an academic route and after after a couple of years as an academic i really started to focus on use of force issues as something that was not only worth knowing about but really worth examining and examining as a technical expert um so it’s sort of developed from there that’s interesting now did you find that your perspective was markedly different when you were a police officer uh than when you were once you were i guess a civilian and a law and then becoming a law professor uh and if so was you know what do you think contributed to that shift or or was this always kind of your thought process even when you were even when you were in the in the police department yeah that’s a good question there are there were definitely parts of my thought process that changed definitely aspects of my perspective that changed quite a bit um when i was an officer i was not studying policing i was a cop i i wasn’t in the role for some um sort of ulterior purpose i wasn’t trying to learn more about it i was i was just doing it right i was just sort of boots on the ground doing the job because that was my job uh so there are definitely parts of my perspective that shifted as i began to look at policing from this perspective of having been an outsider but now excuse me having been well first an outsider and then an insider and then back to an outsider’s perspective uh there are also parts that are very consistent um so my agency and the training that i got the the the cultural influences of my agency certainly affect the way that i think about things my police department was pretty professionalized we had access to a lot of training and there was a great deal of cultural norm uh at the time i was there that for example you would use good tactics and that you would avoid escalating the situation whenever it was possible to do so uh the best fight was one that you didn’t have to fight to win right the best thing to do is to talk someone into handcuffs even if that takes you another 30 minutes so that part going from my practical on the ground experience to an academic perspective certainly remained consistent and now even if the reasons for it began to expand a little bit um so absolutely some some differences in perspective but also some consistencies there too interesting so you know police brutality issues have been in the headlines off and on for a few years now very prominently so in the last year especially after the killing of george floyd now to be clear moving forward because you recently testified in the derek shovin case as an expert on police use of force we cannot talk about that specific case but we’re going to be talking about similar cases and we’re going to just be talking about the factors that contribute to police brutality and use of force issues so just you know full disclosure for everyone watching this uh you know we’re not going to be breaking down that specific case uh because we we don’t want to be seen as potentially tampering with that trial or anything like that now with that said uh the the killing of george floyd has set off this most recent uh round of hyper focus on police brutality issues and it has kind of continued on from there but this isn’t new i remember even being a kid the the uh footage of the rodney king beating in the aftermath from that not guilty verdict and even then it wasn’t new this is something that’s been going on for quite some time what do you think are some of the and we’ll obviously dive into it but what do you think just off the top of your head what are the main contributors to police brutality and is it something that you think is getting better or getting worse or staying the same yeah so those are both really big questions um the let’s i let’s take them uh in reverse order just for fun okay um i think in the short term there’s not a whole lot of change um you know from now in 2021 looking back a year or two years i’m not sure that i’ve seen anything that i would say wow there’s a there’s a sea change there we’re definitely heading in a different direction i think as we start to look a little more globally as we start to look at the pace of reforms or incremental changes in policing i think policing is in a very different place generally than it was in the early 1990s right the rodney king era or the 1960s in the civil rights era or the 1920 and early 30s in the prohibition era and i bring these up specifically because those eras are really when there was a lot of public focus on police abuses and the use of force so i do think that policing is better but saying that it’s better is not nearly the same thing as saying we should all be happy with where policing is as an industry now right i i tend to be an incrementalist i think that the the the most reliable long-term path to reform is steady but incremental improvements um and i think we’ve seen that in policing but there are a lot more steady incremental improvements that i think we should be pursuing and that we should be pursuing immediately even if our time horizon is trying to change the fabric of policing in 10 years or 20 years or 30 years that doesn’t happen in 10 20 or 30 years without efforts today right uh in the same way that some of the reforms that have taken place recently would not have happened without pressure in the 1990s or the 1980s even so what are some of the biggest contributing factors um i think broadly we can break them up into factors outside of policing and factors in policing okay and the by factors outside policing i really mean societal factors right we have to remember that policing doesn’t exist on its own it doesn’t exist in a vacuum policing is part of our contemporary society so it reflects and it magnifies a number of the issues in our contemporary society and i’ll give you two easy examples right drugs and traffic enforcement there are a number of police incidents that we can think of involving drugs or traffic enforcement walter scott here in south carolina was a traffic stop initially right um uh there are i mean there are a ton that started as drug investigations whether it’s a traffic stop in pursuit of a drug investigation or not that’s not something that’s internal to policing because the police are not the ones who write the laws the police are not the ones who say this substance is illegal and the substance is legal or this is what legal driving looks like and this is what illegal driving looks like the legislature does that and then tells police okay here are the laws that you can enforce um that’s one aspect of what i mean by external to society excuse me external to policing sort of society another example is how or when people call the police right the types of problems that we as a society look to the police to address and the easy examples here are alcohol and substance abuse issues mental health when you have a family member who has a mental health diagnosis maybe is off their meds is acting out in some way that you can’t control people call the police they call 9-1-1 that’s the only resource right that’s not necessarily something that happens internally to policing that’s because we as a society have decided and i say decided as if it was a conscious choice often it’s not but we as a desi as a society have essentially by default left it to the police to handle those issues i also think there are issues within so i’m happy to talk more about the sort of broader outside of just policing but there are also issues within policing right culture training uh supervision cultural norms what does one officer expect of another officer we know how powerful those expectations are in shaping behavior so if one officer really expects another one to be aggressive or one officer expects another one to be very patient that cultural norm that expectation is going to have a tremendous influence and unfortunately at many agencies our culture of policing has emphasized immediate compliance to lawful authority yeah which can create some tensions and problems that lead to uses of force that are otherwise avoidable yeah in fact or that’s the wrong yup you you didn’t do anything wrong there i did so we’re gonna so you said uh uses the force that are unavoidable um yes or even uh caught the com the mindset of we need immediate compliance even if the order isn’t lawful that’s something you’ll have to work out later in court but in the meantime you have to listen to our orders we just saw that with the uh the uh army uh sergeant who was um being detained in uh virginia and uh the police were pulling him over uh because his um his uh license plate wasn’t immediately visible now once they pulled him over they saw that it was behind his window and it was a temporary plate uh but they that didn’t stop them from drawing weapons on him and ordering him out of the car he calmly explained uh you have to first tell me what’s wrong here why you’ve pulled me over and i’m not i don’t have a duty to get out of the car and they responded by uh pepper spraying him and forcing him out of the car um this was an example of an unlawful order but because he wasn’t complying they were using force until he complied even forcing him to the ground in in doing so uh and then immediately realized that they were in the wrong so there’s an example of where compliance seems to trump everything else there’s something and again as a civilian looking at the discourse between police officers the rhetoric coming flump from police departments and police unions even in the the wording and rhetoric that’s in their training there seems to be this sort of war footing mentality this narrative you know that you know we as police officers are in a war zone the enemy is in plain sight uh if anyone refuses to comply then they’re probably the enemy we could be killed at any moment so we have to hit them first that sounds like a violent personality disorder as policy or or as a mindset is this the sense that you get as well because i can tell you that’s what i get it’s what many others get when when we talk about it has this always been the if so if that’s the sense you get has this always been the case is this something new or is you know is this just something we’re now seeing because of social media or is that has this always been the case or is or is this a new thing yeah um great question so uh yes it is in many cases the the sense that i get uh and i’m i wanna be a little bit careful because although i’m gonna talk about policing and agencies it is important to remember there are 18 000 different police agencies in the united states and the agency culture at one may be very different than the agency culture or another however of course generalizations keeping in mind that generalizations are inherently have a degree of inaccuracy right um gener is sort of embracing that that caveat uh there are some generalizations and i and others have written um rather extensively about this aspect of warrior policing and that terminology is not accidental and that terminology is not something that i or others invented as a criticism it was something that really originated within policing the identification of officers as warrior cops the importance of building a warrior mindset of having a warrior mentality of becoming the bulletproof warrior to use the name of one popular training seminar um there were uh i i mean if if you look up where you’re policing and especially if you use google’s fancy you know time settings so you’re not looking in say the last four years you’ll find and the reason you’re not looking in the last four years is because over the last four or five years there have been a lot of criticisms of warrior policing so if you look before that right before about 2015 you’ll find a tremendous number of books and articles and training programs about being a police warrior and that’s a very good thing or at least it was presented as a very good thing it’s really problematic right it’s really problematic because the rhetoric of officers as soldiers in the front lines of the war on drugs or the war on crime or the war on terror or i suppose whatever war you want to insert there right i think really confuses the police role and it doesn’t just confuse the police role it gives officers an inaccurate sense of the role that they actually play in society and let’s take that war on crime thing because that’s maybe the most obvious right the the rhetoric today even today is not officers as peace officers which is what they are referred to in many state statutes it’s law enforcement officers and what’s interesting about this is policing and the police power of the state is a rather general concept right the police power refers to the authority that the state has to safeguard the health safety welfare and morals of the populace right and law enforcement is certainly a piece of that but it’s actually a relatively small piece of that and when you look at the number of studies that have been done on what most officers spend most of their time doing the vast majority of officers spend the vast majority of their time not doing criminal law enforcement they’re answering a range of non-criminal calls for service they’re engaged in a range of non-criminal self-initiated activities it’s not that policing and crime are totally unrelated right of course there’s a relationship there but we as a society have made the false assumption that police are law enforcers first and foremost and when you look at what they actually do that’s just not the case right we’ve organized police agencies around this concept of police as law enforcers first and foremost there’s patrol there’s investigations and then maybe there’s some other stuff too and that’s just not an accurate reflection of the tasks that officers are asked to perform so the first thing to note here is we have this this real incoherency where officers and the rhetoric surrounding policing is this is the police role but that’s not actually what what they do at least it’s not what most officers spend most of their time doing so has that always been the case you know interestingly it really hasn’t um i’ll do this very quickly and i apologize this is what you get for having a law professor on i’m very long-winded here um it’s an hour-long show take your time oh good good um so the history of policing in the united states really starts in uh the 1830s and 40s uh the formation of the first municipal police departments in the 1840s at some of the large cities and there’s disputes you know the agencies even today fight about which one was the first police department whether it was boston or new york um and what those police departments did when they were formed is they eventually well they started to supplement and then they eventually supplanted some of the other systems that were in place there were constables there were day watch and night watch systems and eventually we got these more formalized police agencies but if you went back in a time machine and you looked at what those police agencies did it would not look a lot like what police agencies do today police agencies were very heavily tied into the local political machinery so a lot of what they did was constituent services they ran job halls for recently arrived immigrants they operated soup kitchens and homeless shelters they distributed shoes and medicines to the indigent it was sort of a generalized police in the sense of broad social services function there was a crime related aspect to that but it really wasn’t investigative there was a lot of reluctance for officers to get involved in investigations because the i the thought was that that would require officers to associate with criminals and that wasn’t something that you wanted your government entities to do um and around that lasted that political era as it’s called uh which had all kinds of problems you know lots of low-level political corruption and the like but it lasted until about the 1910s 19 teens early 1920s and this is when the professionalization movement of policing really kicked in and we started to separate police from the community and we got this dragnet approach the old tv show right of police as crime fighters the facts nothing but the facts and anything except crime fighting was a waste of police resources police were the crime fighting specialists and this is where we really started to see especially with prohibition this idea of police as adversarial to the communities that they were engaged in policing in um prohibition is just a fascinating case study it’s uh you know an explosion of the federal police apparatus uh the way that we used even local police and we have a report actually a series of reports from the wickersham commission uh in the 1930s and you can pull some of the language in the report on the the wickersham’s report on the failures of law enforcement during prohibition you can pull some of the language update it ever so slightly and it would be equally applicable today right so one of my favorite lines and i’m gonna mess up the quotation to some extent but one of my favorite lines is something like um high-handed methods and unnecessary force alienate uh thoughtful and otherwise law observing members of the community well yeah that yeah that seems that seems right uh another one of the problems that discussed in the wickersham report is this perception among police that prohibition important is their highest priority right it is more important to enforce prohibition laws than it is to for example respect civil rights so if we think about it on a plane if prohibition enforcement is more important then like yeah did i violate someone’s rights i did but it was for the mission it was for prohibition enforcement so one of the observations of the wickersham commission was that’s a problem that is contributing to some serious issues in policing so time passes uh we get to the civil rights era and although policing at this point has set itself out as the crime fighting experts for about 50 years crime is going up and policing is saying we can’t seem to do anything about this um so if you’re trying to be crime-fighting experts you’re failing and that along with the pressures of the civil rights movement really led to uh or was supposed to lead to this idea of community-oriented policing where police would in some sense go back to its roots and start focusing on root causes of crime and disorder and unrest but at least in my observation i think what a lot of policing did is adopted a patina of community-oriented policing while still maintaining this crime-fighting orientation developed in the professional era in the in the early 1900s and that’s kind of where i think we are now although i do see some signs that at least some agencies and some police leaders are recognizing we need to be more than crime enforcers in fact not only do we need to be more than that that’s only a relatively small if important but a relatively small part of the police identity and see this is the main thing that i talk about a lot is that this largely didn’t start necessarily with prohibition but that was the major uh bump that caused the what we see now there were many things that came from prohibition one was that it made it harder for addicts to get help because they’re now criminals in addition to being addicts uh two was that the product got worse because now it was being provided by unscrupulous characters three was that crime went through the roof because now two-bit thugs that used to make money on the numbers or you know uh protection rackets are now given this multi-billion dollar industry uh four was that it created more corruption in government because now you had these cartels paying off uh government officials police officers and politicians which led to more corruption not just on when it came to enforcement of that but just in general but then the other thing that it did was it created this adversarial role between the police and the public the police are no longer here to protect you they’re here to make sure you’re not drinking they’re here to make sure you’re not doing nothing wrong and it also created when any uh organization now feels like everyone is against them when any group feels that everyone else is against them they become cloistered and now they’re fighting back and that’s what happened with policing prohibition for alcohol ended but prohibition for other drugs continues and in some cases has strengthened over time the other thing as you mentioned coming into the civil rights era you now had qualified immunity which started i think the first qualified immunity decision was in the 1960s uh where the supreme court ruled that uh police uh and and to give a very brief explanation of it that police if they just if they personally decide what they did was reasonable then they can’t be held liable civilly for this correct me if i’m wrong and i know we don’t have a tremendous amount more time but i want to to delve into this my understanding of qualified immunity is that it creates a really perverse cost-benefit scenario so that if you have for example an officer who has had multiple complaints of violent excessive use of force even multiple uses of potential wrongful death cases you have plenty of police departments across the country who when they look at these bad apples in their bunch they make the cost-benefit analysis of saying well if we try to get rid of this officer we’ve got to fight the police unions we’re going to have to spend all this money and there’s a good chance we aren’t going to be able to get rid of them and thanks to qualified immunity we largely as individuals and organizations can’t be held civilly responsible and neither can that officer so it’s probably best to just keep them on the force until they do something so bad that we can charge them criminally for it and then we can get rid of them uh that leads to a culture of unaccountability within the police forces it actually um discourages accountability because now you have police officers that don’t want to stick their neck out because they’re the ones that get you know demoted or put passed over for promotions there’s no real accountability happening because there’s no function or mechanism by which they can be held accountable unless they actually commit a criminal offense uh and can be proven to do so which usually has a higher threshold for police officers than for the rest of us how much does uh you know the the i guess for lack of a better word the war on victimless crimes the war on drug crimes the war on uh sex work and things like that and the qualified immunity how much of that is just leading to we hear so much focus on funding more funding for training or or changes in training but i’m not sure a rational human being needs to be trained not to murder someone or to assault someone for not listening to them how much of this is just lack of accountability and this creation of adversarialism because of the war on victimless crimes yeah good question um and i i’m i’m going to answer that i promise i want to go back to what you were describing about prohibition because i think there’s a there’s a sixth or seventh you you gave a great list there um one of the aspects of prohibition that i think we need to uh uh recognize because it has some contemporary implications is there was a race and class component to prohibition oh yeah it wasn’t just it wasn’t just the police watching everyone in the public and saying are you drinking it was the police being um used as a mechanism mechanism of the state because of suspicion of german immigrants who went to beer halls or of uh uh the the there is both a race component there and i say race and uh you know the contemporary listener is going to say well german is the same race like that’s all at the time it wasn’t at the time german and irish were not considered the same exactly yeah yeah and they weren’t i mean that they weren’t white in the way that we think we’re not white right so so we have these we so there’s a there’s a there’s a race component and there’s a huge class component because the wealthy folks could continue having wine parties yeah but the lower classes the working classes who were using beer well that was a real problem because you know these common laborers would just go home and beat their wives or would waste all their money on beer and not actually feed their kids or the like these were the stereotypes the tropes right we see that mirrored in both historical and contemporary discussions of a whole range of behaviors right we saw it mirrored with the crack epidemic uh we saw it mirrored in uh in the in the starting in the 1930s 1920s 1930s really with marijuana um we even saw it before prohibition right in the late 1800s and the regulation of opium um in in cities in california which were really focused on chinese immigrants not on whites who tended to use opium in the form of laudanum so there is a very heavy element here where policing has been leveraged in ways that are about social control which i don’t say as a as a derogatory thing like not you know not allowing me to go kill my neighbor is a form of social control that we can all generally agree that seems that seems right that’s reasonable yeah yeah yeah yeah that’s a reasonable aspect of social control but we start to see aspects of social control that are uh very heavily predicated on race and class and um that includes the early police entities picking up some of the functions that slave patrols had been doing earlier in in american history right so it’s it’s multi-faceted and it’s it’s a little complicated i don’t think it’s fair to say slave patrols just turned into policing but as we look at the as we as we look at the rope of policing the threads that make up contemporary policing do include slaves patrols right right um okay so now uh qualified immunity and accountability um yeah so qualified immunity comes along and many folks are going to be familiar with it but qualified immunity basically says even if an officer violates the constitution and that’s a really important point even if there is a constitutional violation the officer is immune from suit cannot be sued unless the violation was clearly established at the time and the way that courts have read that is basically there needs to be a prior case with very similar facts such that any reasonable officer who’s on the scene at the time of the officer’s action would have known oh that’s a constitutional violation that’s a really high bar right and you see courts making these if you’ll forgive the expression [ __ ] distinctions between a case that they’re analyzing and a precedent case that seems like it should apply right oh well yes this is both these are both excessive force cases and they involve very similar facts but this person is this person was sitting at the time and that person is standing and that’s the other person was lying down yeah yep yep right or an example there was another example of uh police uh uh corrections officers who for fun were tasing an inmate in his cell who was actually complying they were just doing it for for giggles and they ended up being held to have qualified immunity even though there was another similar case because in the other case they used tear gas or pepper spray instead of a taser as opposed because that’s different right yeah right like okay it’s a different force option it’s a different weapon but the circumstances seem very similar so so the court starting at the supreme court has really defined this cl what’s called the clearly established prong of qualified immunity at a very very tight level of specificity right and and then we can add on to the fact right just as a reminder qualified immunity only applies when there is a constitutional violation so the fourth amendment that regulates searches and seizures allows officers lots of leeway to make mistakes they can absolutely arrest the wrong person as long as they have probable cause that’s okay it doesn’t violate the constitution you don’t even need qualified immunity to that to to resolve that case right um or as long you know officers stop someone and investigate them and search their car and the officers are just wrong on all counts well as long as they had reasonable suspicion or probable cause depending on which part of the encounter we’re talking about it is constitutional so you don’t even need qualified immunity with qualified immunity we’re really only talking about when there’s a constitutional violation so has that affected accountability um i think if you look at the rhetoric yes i think if you look at the numbers it’s less clear and the reason for that is if you if you listen to what officers are saying what police unions are saying about qualified immunity they appear to be presenting this argument that the only thing keeping officers on the job is qualified immunity right that without qualified immunity officers will sit in their patrol cars and do nothing all day long right um which i think is actually really offensive right i i think it’s very infantilizing to say well the only way a professional can do their job is if they’re completely insulated from liability like have you seen doctors and even you know lawyers who have to carry malpractice insurance like it’s not you know the fear of liability should not keep a professional from doing their job right exactly but leaving leaving that aside if you look at the numbers qualified immunity probably isn’t actually as important as it purports to be and i’m relying here on some research uh by joanna schwartz at ucla who’s just phenomenal and i would highly recommend everyone uh check out the the massive body of literature she’s she’s done on qualified immunity what she’s found is qualified immunity comes up in some really egregious cases but it doesn’t come up a tremendous amount and the reason it doesn’t come up and this is maybe a little technical but the reason it doesn’t come up is because when you have factual disputes it’s much harder for a defendant an officer to make a qualified immunity argument so if if a if a plaintiff says the officer punched me in the face and i wasn’t resisting at all and the officer says either i didn’t punch him in the face or yes i punched him in the face but there was this high level of resistance that justified it you have this argument about the facts and everyone would agree well i shouldn’t say everyone most folks would agree if he wasn’t resisting it’s definitely clearly established that you shouldn’t punch someone in the face so you don’t get qualified immunity in that case there’s this what’s referred to as a genuine issue of material fact and a jury has to figure out was their resistance or or was there not but despite i i’m sorry sorry i’m sort of going off on a technical tangent here when you look at the rhetoric we tend to think that qualified immunity is really important to officers but when you dive into some of the research it does not appear that officers are actually basing most of their decisions or any significant amount of their decisions on fear of liability but i think qualified immunity is still really important even if getting rid of it wouldn’t help resolve a whole bunch more cases or even if it wouldn’t change office or behavior i think it’s still really important for a couple of reasons right one we’re talking about someone whose constitutional rights have been violated and with qualified immunity there is no compensation for that constitutional violation like getting money isn’t the best way to compensate someone the best way to compensate when someone would be to not violate the rights in the first place in the first place right right so let’s aim for that but you know it’s an imperfect system sometimes the best we can do is provide monetary compensation and that’s what our tort system is based on so getting rid of qualified immunity what might actually allow us to establish compensation for people whose rights have unquestionably been violated right that’s one number two look at the conversation we’re having right now qualified immunity makes it very difficult for an informed populist to trust its government right why why would i believe that officers have best interests at heart why would i believe in why would i have a lot of faith in government or my government actors if i know that they can basically act with impunity including in some pretty egregious cases right right officers who stole a quarter million dollars of rare coins and antiques and the court said well it’s not clearly established that that’s a fourth amendment violation so qualified immunity applies that’s a real case that’s not an exaggeration like are you nuts yeah um i also think it sends an important if relatively maybe technical signal uh that no this this rhetoric about officers needing immunity and not being properly susceptible to critical review that’s okay right like we need officers to be critically reviewed because you know ultimately in a democracy it is not up to the government to determine whether it’s doing a good job it’s up to the citizenry to determine whether the government is doing a good job right and i also think it sends an important message to officers to those bad apples that no you will be held accountable if it’s clearly determined that you violated someone’s rights or that you violated the law um that will be a potentially a powerful deterrent factor to officers uh to not join or to quit early i’ve heard often oh you know officers are going to leave if they’re if they’re not if they’re going to be held accountable and i say good yeah any officer that does not want to be held accountable any person who does not want to be held accountable for hurting other people i do not want doing whatever that thing is for similar reasons i think we should be talking about ending absolute immunity for politicians and and prosecutors and judges as well but that’s a whole other subject so if can i make one more point about yeah yeah go ahead all right so it’s kind of important to recognize like the reason for qualified immunity right so here’s the i’m gonna i’m gonna use a visual aid here my expertly drawn visual aid um so let’s see if this works can you can you can you see that yes yes conline all right so that’s the constitutional line right yes and the i the idea with qualified immunity is we want officers the white balance is throwing me off here okay yeah i can’t tell which direction i’m going all right we want officers to to be able to act right up to the constitutional line yes and the only way to allow them to do that this is the justification that’s given for for qualified immunity the only way to allow officers the only way that they will feel comfortable uh walking up to the constitutional line that is going right up to the very edge of what the constitution allows is if we immunize them or insulate them if they happen to step over the line a little bit right yeah and i think one of the fundamental questions that we might want to revisit as a society is do we want officers walking all the way up to the qualified immunity excuse me to the constitutional law constitutional line if if that means that we have to forgive them when they step over it right it may be i think it’s entirely possible to say the constitutional line is where they should stop so as they start to approach that line they had better slow down so they don’t step over it right i think that’s a perfectly reasonable public policy position right i think i mean and apply that to literally anything else seth like imagine being told like well i mean you know you don’t want anyone you want people to be able to do their job so if they actually run someone over while they’re doing it uh you know i don’t want to mess them up as a delivery driver and i want them to go exactly to the very limit of safety and legality in their delivering of food so therefore uh if they end up running someone over i mean we got to give them a pass right like that it wouldn’t apply to anything else and and we could have a whole discussion about the the the undue deference that is given to people in government compared to literally anyone else outside of government but i don’t have enough time with you for that but i want to give you a chance to uh while i still have a few more minutes with you what do you think are like let’s say the main two or three things that need to do to really put an end or at least greatly ameliorate police brutality now and in the future and then from there i guess just give your final thoughts the floor is yours oh boy no pressure um yeah so um first i think we need to be very holistic i think we need to recognize that policing is a complicated social phenomenon and it’s going to require a complicated and multifaceted solution or set of solutions i am really at the edge of my patients with one-stop fixes like body cams right just throw body cams or tasers right which was the one-stop fix 20 20 30 years ago uh we have use of force problems tasers will solve it or pepper spray in the 60s uh 60s 70s we have use of force problems well we’ll just give officers pepper spray that will solve the use of horse problems right we have a we have a persistent problem in policing of the the silver bullet solution um the contemporary one is maybe some combination of uh body cams and oh if we just give all officers 40 hours of training in brazilian jiu jitsu we will solve all of the all of the problems right and uh look i’m a martial artist i have a very healthy respect for brazilian jiu jitsu but that’s insane right 40 hours of anything is not going to solve the issue so i think we need to think very broadly very comprehensively very holistically starting with what is it that we want officers in society to do what are the scope of the criminal laws that they are enforcing how and why are we using officers to respond to people with mental illness how and why are we using officers to engage in traffic enforcement how and why do we have officers who are engaged in what has been referred to as policing for profit or revenue generation which is absolutely abyssal right that’s that’s one practice that needs to be eradicated tomorrow um this is you know officers running speed traps and writing city ordinance violation tickets because their their city needs the needs the money right it’s a form of revenue yeah it’s a form of what academics refer to as rent seeking when the government extracts resources from the population without providing a corresponding benefit like a public safety benefit or the like um i do think that we need to rethink and provide more this is going to be an unpopular opinion potentially but provide more resources for aspects like police training south carolina is a good example we have one of the lightest training requirements in the country officers here get 480 hours of training for their state certification that’s 12 weeks the national average is double that 21 to 25 24 weeks and in south carolina a third of our academy curriculum is online so they really only get eight weeks of in-person training right you want to give someone with eight weeks of training the authority to take someone’s liberty to invade their privacy to take their life on eight weeks of training that’s ludicrous um so what do we have police do how were they trained how are they supervised how are they held accountable what are the internal and external accountability mechanisms all of that has to get kind of rethought out because this adversarial in policing that comes with a very heavy cultural norm of protecting each other right officers protecting officers contributes to problems like what’s been referred to as the blue wall of silence where officers really don’t want to help a bad apple be held accountable right um i also have some major problems saying the words bad apple because i think often the problem is not that one individual apple is bad the problem is uh the barrel that they’re in has allowed them to go bad and is not doing enough to keep them from going bad so we need to look not just at the apple level we need to look at the actual barrels and how police agencies are run and organized and managed um so let’s see what else i mean there’s a there’s a there’s a ton uh and there are you know the the the optimistic part of this is there is a lot of room for your listeners to get involved in whichever aspects of it make sense to them right some folks are going to say we need to get police out of mental health response yeah great focus your efforts on that some folks are going to say we need to make sure that police agencies are actually you know holding officers accountable for administrative violations great go get on it um so there are there are lots of inputs the single most important thing for any of them i think is political will we have to have political will to change public policy in this area and we will not have that political will without public pressure it just won’t happen right when when you look at the history of policing back to the wickersham report almost 100 years ago there’s the christopher commission the kerner commission the knox commission the overtown commission right we have this ton of blue ribbon panels of experts who have looked at policing broadly or looked at a particular incident like rampart in la or looked at a particular agency like nypd after serpico and said here are the problems and here are some solutions and if you line up those reports i would say 85 of the problems and solutions are basically the same right it’s almost a copy paste a toxic culture a lack of accountability uh a perception that that whatever the goal is viewed as being like law enforcement is the most important priority and that other goals like respecting civil rights take a back seat we know what the problems are we know what many of the solutions are we just need folks in power to gussy up and get stuff done and that’s where public pressure comes in right politicians need political will and that comes from voters and and pressure uh uh you know presented by voters right right and i think two other things i don’t think you’re necessarily not saying this but two other things i would add to that are i do think if we if we and you you did mention this briefly getting rid of victimless crime laws and stop using police as revenue generators on minor offenses where no one is a victim uh those two things greatly reduce police interactions with the public in the first place so there’s less potential for uh you know for for use of force in any case uh and also it stops it reduces and and helps eliminate that adversarialism between the police and the public uh in a major way and then i think another thing is is and and i mean we could do a whole sub the whole episode on this the 1033 uh military surplus program civil asset forfeiture the sort of federalization of militarized police policy get rid of all of that and put the put that money in power back in the hands of communities to decide what their police departments look like what they actually even want them to be doing and how much of the things that we’re currently calling police for now should instead be handled by social workers or a mental health professional or you know or some other situation where an armed person who is primarily uh or at least in this case primarily their job is law enforcement you know is there someone that’s better suited for that in the first place and maybe we don’t try to use police officers as this catch-all uh in in the first place but anyway i think this was an incredible discussion certainly a great place to get started go ahead that i just just just to pick up you know i think that’s exactly right you know on the on the victimless crimes point uh it’s one thing to say that we don’t need the police to be leading the charge against some of these crimes and you can go down that road you don’t necessarily have to go all the way to it should all be legal right or it should all be for example right i think it’s entirely coherent to say we really need to treat drugs as a public health issue not a criminal justice issue right and still and still say look do i want people using drugs i mean i’m not going to talk about me personally but i think someone could say i don’t really want people to be using drugs but i think the right response is a public health issue like portugal is doing not a criminal justice issue right right so it’s you know i think we need to avoid dichotomies as we’re having this conversation it’s not police or nothing it’s often police or some other range of public service public health infrastructure and we’ve done a really bad job of over conflating policing and public safety right policing is a part of public safety absolutely but there needs to be a much broader public safety and public health infrastructure than policing can possibly provide right absolutely yeah it does not i mean i definitely believe in ending the all of the war on drugs but even if you don’t treat it like a mental health issue treat it like an addiction problem or a health problem as opposed to treating it like a criminal issue it solves the problem it gets people help and it costs a lot less for those of you that are screaming out there yeah it’s way cheaper for the people screaming yeah but i don’t want another government program you know what putting millions of people in in a prison uh for most of their life and then rendering them unable to be able to generate income afterwards is a government program and it’s a really crappy one but seth thank you so much oh sorry see i keep trying to go i keep going you’ve got no i’m trying to be respectful of your time you’re you can talk as much as you want i’m just being respectful of your time i you know i i in most counties the single largest provider of mental health services or substance abuse services is the county jail and when i say provider of mental health services or substance abuse services mostly what i’m talking about is warehousing people who have mental health or substance abuse issues because often there are some exceptions but often the services provided are very limited too little and often far too late so yeah if you know i i don’t want another layer of government okay i get that but it shouldn’t it really be about getting the right layer of government not right you know abandoning government altogether at least in my view right and and and sticking those people with mental health issues with the criminal record which definitely will help them in the long term uh so looking at that as well seth thank you so much for your time i greatly appreciate it and uh you are a friend of the show and i hope to have you back on again soon yeah i’d like that we left a lot dangling here so i look forward to those future conversations thank you thank you i told you it was going to be good i told you i said this episode’s going to be good but you didn’t want oh let me turn the fan down i told you this episode was going to be good hopefully you listened because uh seth stoughton absolutely expert in what’s going on with police forces and he’s 100 correct as long as you have all of the conditions in place you have the increasing divide and rift between the police and the public due to this adversarial nature that’s being created by the police largely being there to create revenue for the state even if it means ruining people’s lives financially for days and weeks because they pulled them over for you know a seatbelt violation or a broken taillight or something like that or ruining their lives financially and raising revenue uh over the war on drugs or the war on sex work or the war on gun ownership or any of their other wars on you know victimless behaviors um as long as that happens and as long as actors in government including police officers but also including politicians and judges and prosecutors and everyone else as long as they’re not held accountable for their bad actions that’s going to lead to everything that we’re seeing now it’s a wonder it’s not worse honestly um in fact the fact that it isn’t worse is probably a testament to just the general desire of people to to be of better nature all of the conditions are there for it to be at least as bad as it is now and possibly even worse and so when we get rid of those conditions then we can actually address the root problem and the root cause otherwise we are leaving it to the people who just want to make it about race just want to make it about class just want to make it about something that can’t be fixed well the problem is racism okay great you’re never going to get rid of racism so you’ve basically said we’re never going to solve the problem that’s a great way to make people so hopeless that they end up just you know marching in the streets and burning things down because they they believe that there’s no way to actually fix this instead if we can actually show what the root problem is and then fix those things so that we don’t have the problem anymore now we can actually solve the problem so anyway folks uh i want to let you know again the reason that my fellow americans is on tuesday this week is because tomorrow is a very very special wednesday what makes that tomorrow different from all other wednesdays well folks folks nope wrong thing tomorrow is when i will be on kennedy starting at eight we will be breaking down and uh uh well we might be breaking down actually uh we’ll be uh previewing uh joe biden’s speech tomorrow he’s going to be giving an address to congress it’s not a state of the union because that would be called a state of the union instead it’s just an address to congress which is completely different from the state of the union because anyway we’re going to be previewing biden’s state of the union and then uh immediately after that probably around 8 45 9 something like that or we will be actually breaking down matt and i will be breaking down live and live reacting uh we might break down as well we will be live reacting to biden’s uh non-state of the union state of the union address if anyone hasn’t ever watched our uh our live reactions um to debates or to states of the union or to any other public things uh it’s really a quite a sight to behold uh we got the setup where you know matt is over here guy on left i’m over there guy on right and then here in the middle we have what’s going on in this case it’ll be biden’s speech and we basically just dunk on him the whole time and make fun of him and and uh showcase all the nonsense he says as he’s saying it so uh when the following day when everyone’s making fun of all the meme-worthy stuff biden said you’ll be at the cutting edge of remembering it while it was happening live and you’ll have the filter of us making it somewhat more bearable uh because you’re not just having to listen to him for you know an hour plus you get to hear us make fun of them too so in case uh you uh you know kind of helps you cry through the tears or laugh through the tears i guess you can cry through the tears too uh but be sure to tune in uh tomorrow for uh kennedy uh at 8 p.m on fox business uh and we will be previewing biden’s nonsense and then join us immediately after that right here on muddy waters media for the muddy waters of freedom special edition biden gedden that’s what i’m calling it i just made that up biden biden again that’s what we’re calling it biden again biden apocalypse would actually probably be better but i’m going with biden getting because i already said it um so folks thanks so much for tuning in to that in advance uh also i want to thank all of our sponsors they’re not patrons because we don’t use patreon because we don’t like patreon but our sponsors and you too can become a sponsor by going to anchor dot fm slash muddy waters and pressing the donate button and you can become a regular contributor to muddy waters your generous donation allows us to continue doing this so i’d like to give a shout out to justin mickelson jack casey zachary martin joshua mchose kenneth ebble evil sean sparkman james ely dan faust jennifer morrison jack casey jeff depoy andrea o’donnell kenneth ebel oh that’s right kenneth evil is giving twice uh meg jones and billy pierce for texas folks thanks so much for your generous contributions thank you for everything that you do and again if you want to join him and become one of the people that we call out at least twice a week go to anchor dot fm slash muddy waters and you can sign up for as little as a dollar a month so thank you for that and again tomorrow kennedy followed by muddy waters of freedom so be sure to watch that and if you’re seeing spike i don’t have cable well then just watch us on my waters of freedom and i’ll let you know how it went on kennedy so you can do one of these things at the very least but you know do both you can get a double dose of spike tomorrow what joy for you on a wednesday evening what joy uh and then uh tune in on thursday night for uh the writer’s block which is matt’s show and his guest will be angela mcardle who is running for uh the chair to be the next chair of the libertarian party uh so you can hear what she has to say uh she will be on uh matt’s show and then uh on this sunday on monday and tuesday i will actually be in ohio uh and i will be giving a a press conference for the accountability now project more on that to come we’re to do some big things in ohio so stay tuned on my social media and we’ll be talking about what i’m going to be doing out there but if you live anywhere near uh columbus ohio uh be sure to come on out and come see me i’d love to get to meet you um and then join us right back here next tuesday uh for the muddy waters of freedom on its regular time 8 p.m on tuesdays we’re matt right and i parse through the week’s events like the sweet little 20 20 wonder boys that we are and then join me right back here next wednesday same spike place the normal spike time because it’s on wednesday for another fantabulous episode the 99th episode of my fellow americans folks thanks again have a great night i’m spike cohen and you are the power god bless guys [Music] away [Music] [Music] [Applause] you can’t make a change [Music] we might just unite and come together become hybrid at the least slightly like-minded indeed the life i’ve lived brings light to kindness all you need is a sign put a cease to the crimes but an east sometimes darkness is all i find you know what they say about an eye for a night in a time when they’re blinding the blood who am i to deny i would cry when a loved one dies i recognize that body outside with a hoes in the body that was alive who would want to raise a tell me why [Music] make the day [Music] we will make [Music] [Music] you

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Jason Lyon
Jason Lyon
Jason Lyon - USN Submarine Vet -Minarchist/Constitutionalist - #Liberty advocate - Principles over party - Constitution over Idolatry
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