The footnotes. My god.
posted by awfurby at 5:08 PM on August 4, 2020 [16 favorites]

Absolutely amazing. Best citation of Scalia’s “legalistic argle-bargle” from his Windsor dissent I’ve ever seen.

Fuck all the Officer McClendons out there, fuck our qualified immunity jurisprudence, and a premature fuck you to the Fifth Circuit, which I fully expect to affirm on appeal.
posted by cheapskatebay at 5:16 PM on August 4, 2020 [28 favorites]

Brilliant. It's clear who the next Supreme Court nominee should be.
posted by PhineasGage at 5:18 PM on August 4, 2020 [6 favorites]

This is like the third or fourth time today I've wanted to just walk outside and start screaming at the top of my lungs. Between the reporting about the women and their daughter's stopped and handcuffed in Aurora, CO and the women and their infants being run into and detained by the U.S. secret service in DC I'm so fed up with systemic racism in this country that I can't see straight. Oh, and I forgot to mention the pigs pointed guns in their faces in both cases. I swear if I hear another white person say there's no such thing as systemic racism in this country I'm going to punch them in the face.

ACAB
posted by photoslob at 5:42 PM on August 4, 2020 [88 favorites]

So has he resigned and done something useful with his legal knowledge and eloquence, or is he going to continue to rubber stamp state violence with the occasional crocodile tear?
posted by rodlymight at 5:57 PM on August 4, 2020 [4 favorites]

I have no words for this (probably because Justice Reeves has used them all) -

This is an infuriating case, an outrage in a miles-long series of outrages (which Justice Reeves notes at the beginning of the opinion),

and it is also a clear, compassionate, considered opinion, one that everyone would benefit from reading.

Thank you so much for posting this, Navelgazer.

My god.
posted by kristi at 6:00 PM on August 4, 2020 [7 favorites]

I note that it was posted by Mark Stern of Slate. He is frequently on Dahlia Lithwick’s great Amicus podcast.
posted by idb at 6:10 PM on August 4, 2020 [4 favorites]

Was surprised to see a TikTok citation in a legal document. I'm sure that'll age well, but in the meantime it's pretty damn good.
posted by Riki tiki at 6:20 PM on August 4, 2020 [9 favorites]

So has he resigned and done something useful with his legal knowledge and eloquence, or is he going to continue to rubber stamp state violence with the occasional crocodile tear?

You might want to read about Judge Reeves and some of the notable opinions he has authored before you accuse him of “crocodile tears” in this matter.
posted by jedicus at 6:22 PM on August 4, 2020 [93 favorites]

So has he resigned and done something useful with his legal knowledge and eloquence, or is he going to continue to rubber stamp state violence with the occasional crocodile tear?

This is an extremely unfavorable attribution of intention and motive to someone who I don't think you've sufficiently demonstrated should be subject to your purity tests. Since the total destruction of the judicial system does not appear to be on the horizon, I might suggest that keeping smart, reasonable judges on the bench rather than in some kind of imagined utopian legal farm upstate probably better serves us all.
posted by axiom at 6:23 PM on August 4, 2020 [161 favorites]

Keeping the last claim alive was something another judge could have decided the other way. That means a trial. With publicity. With the officer having to testify in court. That’s no crocodile tears result.
posted by kerf at 6:35 PM on August 4, 2020 [25 favorites]

So has he resigned and done something useful with his legal knowledge

Gosh, isn't it fun to pretend we're better than District Court judges, especially when they're also Black?

...yeah.

Or not. Maybe it's actually, y'know, that other thing. Not fun.
posted by aramaic at 6:47 PM on August 4, 2020 [28 favorites]

Page 34: "Federal judges now spend an inordinate amount of time trying to discern whether the law was clearly established "beyond debate" at the time an officer broke it. But is a fool's errand to ask people who love to debate whether something is debatable."
posted by hippybear at 6:47 PM on August 4, 2020 [30 favorites]

Now this is a magisterial piece of writing.

I am tremendously impressed. And moved.
posted by snuffleupagus at 6:54 PM on August 4, 2020 [5 favorites]

brilliant citations. The reconstruction sections are of particular accuracy chronologically with devestating effect.
posted by clavdivs at 6:57 PM on August 4, 2020 [5 favorites]

So has he resigned and done something useful with his legal knowledge and eloquence, or is he going to continue to rubber stamp state violence with the occasional crocodile tear?

Not to pile on, but this Opinion is literally one of the greatest things he could do with his legal knowledge and eloquence.
posted by Navelgazer at 7:00 PM on August 4, 2020 [53 favorites]

Wow, that was amazing. It's pretty clear that the primary target audience of the opinion is the Supreme Court itself, and he did everything in his power to set up the plaintiff for an appeal and force the SC to actually hear the case. The bit at the end especially is almost a direct address to the individual members of the SC, reminding them of their past concerns with qualified immunity and basically warning them to consider how history will remember them. Very impressive, I hope it works.
posted by biogeo at 7:16 PM on August 4, 2020 [30 favorites]

While I do not share rodlymight's assessment of Judge Reeves, I have to admit I do share rodlymight's surprise that Judge Reeves granted the qualified immunity in this instance (at least, that's how I understand this).

If he did not grant it, then please let me know.

If he did, I have to admit I'm baffled why.

Either way, this was a brilliant piece of writing, and it is its brilliance which is adding to my confusion.
posted by EmpressCallipygos at 7:19 PM on August 4, 2020 [2 favorites]

Page 70: "I have told this story today because of it's obvious parallels with Statute 1983. In both situations, judges took a Reconstruction-era statute designed to protect people from the government, added in some "legalistic arble-bargle" and turned that statute on its head to protect the government from the people."

I can't find that fancy double S thing and you can't copy/paste this document!
posted by hippybear at 7:21 PM on August 4, 2020 [5 favorites]

This was a remarkable thing to read, and I thank you for sharing it here. I never would have encountered it otherwise, I don't think, and I feel, like, educated and even vaguely hopeful (dangerous in 2020, I know!) after reading it!
posted by hippybear at 7:23 PM on August 4, 2020

EmpressCallipygos: He did not grant it so much as he affirmed what the Supreme Court has already decided.

To quote:

This Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer's motion seeking as much is therefore granted.

He affirmed that this is already settled, that he has no choice in the matter, and very politely said his hand his forced. And teed up an appeal to the Supreme Court which would question that previous decision.
posted by c0nsumer at 7:26 PM on August 4, 2020 [48 favorites]

I'm not a lawyer but as I understand his reasoning laid out in the opinion, there is clear case law from both the Supreme Court and the Fifth Circuit Court that Reeves is legally bound to follow. Basically, as I understood it, the cop's lawyers were able to provide some form of precedent in defense of the illegal search, rendering it not "beyond debate" that it was illegal, which is the level required by the SC for a judge at his level to rule against qualified immunity. Most of the opinion is Reeves arguing that this rule, which he is legally required to follow, is unjust and incoherent, but his hands are tied as the precedents established by superior courts are clear.
posted by biogeo at 7:29 PM on August 4, 2020 [8 favorites]

He granted the qualified immunity because he had to work within the law as it exists and as it has existed.

The entire piece is an appeal to SCOTUS to take a different look at the qualified immunity thing and to take brave steps to change it. He lays out exactly why he feels this qualified immunity decision goes against what the law (and common sense) actually says is just, but because of previous decisions in the court and a lot of other factors he is bound by law as a judge to rule this way. But he feels it isn't just, and he's outlined it all here.

It's a bad comparison, but not inaccurate, so say it's sort of like the Mueller Report (yes, I've read that). The entire second half of the book reads basically like a mafia novel there's so many late night phone calls and threats of retaliation and stuff. But at the end, Mueller has to say "I cannot indict this man because of these prior legal precedents. Others have the power to change this, but I cannot."

That's what that judge is doing here. Laying it ALL out, and then saying "My position does not afford me the correct choice, I'm bound by law and precedent to do it this way. But here's what actually happened, maybe others with the power will change this."
posted by hippybear at 7:29 PM on August 4, 2020 [27 favorites]

Hippybear: the section sign.
posted by SPrintF at 7:30 PM on August 4, 2020 [4 favorites]

thank you! I didn't even know the same of it so I couldn't google well! yay!
posted by hippybear at 7:33 PM on August 4, 2020

The most relevant section for his reasoning in the decision starts on page 56. Elsewhere, he argues that the cop did violate the plaintiff's constitutional rights (specifically 4th and 14th Amendments), but it is not "clearly established" in precedent that this is the case and so he's not allowed to withhold qualified immunity.
posted by biogeo at 7:35 PM on August 4, 2020 [4 favorites]

Well, Officer McClendon, you won. Do you feel like a winner?
posted by Capt. Renault at 8:02 PM on August 4, 2020 [5 favorites]

Does anyone have a link to a text version? There’s only so far I can zoom in on the PDF.
posted by The Underpants Monster at 8:10 PM on August 4, 2020 [1 favorite]

This is an incredibly informative document. It is meaningful that all of that - the narrative, the footnotes, the underlying research - all of it is now in one place as part of the legal record. I admire how judge Reeve conveys so much information so effectively and in such direct text.
posted by meinvt at 8:11 PM on August 4, 2020 [15 favorites]

Does anyone have a link to a text version? There’s only so far I can zoom in on the PDF.


There should be a text tab on the Document Cloud link in the FPP. You can also try the text version on RECAP. It is unfortunately not possible to link directly to the text versions on either site.
posted by jedicus at 8:39 PM on August 4, 2020 [2 favorites]

There should be a text tab on the Document Cloud link in the FPP. You can also try the text version on RECAP. It is unfortunately not possible to link directly to the text versions on either site.

Thank you so much!
posted by The Underpants Monster at 9:10 PM on August 4, 2020

I found that when you search within the document, using the bar in the upper right, upon returning to the PDF view the page you were looking at in plaintext will be chosen in the PDF. How convenient!
posted by panhopticon at 9:13 PM on August 4, 2020

Hey this happened to me and my super white friends about 15 years ago when taking my friend’s mom’s new Mercedes for a road trip! It was humiliating. Glad to see hick small town cops continue to punish those they feel aren’t worthy of certain things.
posted by geoff. at 9:15 PM on August 4, 2020 [1 favorite]

That is great. Thank you for sharing. Seems like Reeves is an obvious person to make a statue of and replace some that are being taken down.
posted by lab.beetle at 9:27 PM on August 4, 2020 [4 favorites]

An excellent opinion and a superb example of judicial activism. That seems to have become a dirty word lately, but if judges aren't allowed to express their view of judge-made law, who is?
posted by Joe in Australia at 10:36 PM on August 4, 2020 [2 favorites]

What? no one's mentioning the section header titles?
posted by mbo at 10:36 PM on August 4, 2020 [10 favorites]

Oh my! I only read as far as "A New Hope" so didn't realise he carried the theme through!
posted by pianissimo at 10:46 PM on August 4, 2020 [3 favorites]

What? no one's mentioning the section header titles?

It's obvious he's hoping for the Jedi to return. Maybe they will.
posted by hippybear at 10:51 PM on August 4, 2020

previously with an explainer on this "qualified immunity" doctrine that lays out the law the Supreme Court has come up with.
posted by away for regrooving at 12:46 AM on August 5, 2020 [3 favorites]

Let me quote that as a teaser. It's a good article.

This shortcut has led to some outrageous results. In an opinion filed in March 2019, for instance, the U.S. Court of Appeals for the Ninth Circuit held that officers were immune from liability for the deliberate stealing of property simply because there was no “clearly established” case law governing the circumstances. In that case, police officers who had executed a search warrant seized about $275,000 in property: approximately $150,000 in cash, and another $125,000 in rare coins, but stated that they had seized only $50,000. In other words, the officers attempted to steal $225,000 while on the job.

The Ninth Circuit dismissed the lawsuit against the officers, granting qualified immunity because it had “never before addressed” whether officers executing a warrant could steal property. And, according to the court, it was not sufficiently “obvious” to police officers that stealing property under the guise of executing a search warrant violated an individual’s constitutional rights. As a result, the Ninth Circuit said that it “need not” even address whether the officers’ stealing was illegal.

This example should show the degree to which qualified immunity opens the door for wrongdoing on the part of law enforcement. No reasonable officer needs a case to tell them that stealing property is wrong. But it’s worse than that. Because the court did not say that the conduct was illegal, the law is still not clearly established that officers may not deliberately steal property when exercising a search. So an officer could, again, claim immunity for the same behavior.

As Fifth Circuit Judge Don Willett described this phenomenon: Victims of abuse “must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability.”

The Ninth Circuit is my circuit and they did some business-as-usual shit here. Props to Judge Reeves (and from Wikipedia on his prior decisions, he is taking no bullshit generally).
posted by away for regrooving at 1:04 AM on August 5, 2020 [16 favorites]

I'd love to see this opinion published in book form to help ensure its continued availability and give it a permanent place in America's culture.
posted by Paul Slade at 1:51 AM on August 5, 2020 [10 favorites]

This has instantly become one of my favorite things, ever. This is both a compelling legal argument and effective rhetoric.
posted by Ivan Fyodorovich at 6:53 AM on August 5, 2020

I'd love to see this opinion published in book form to help ensure its continued availability and give it a permanent place in America's culture.

Well, there's a pretty good chance it will be published in a volume of the Federal Supplement, Third Series, published by Thomson West, a division of Thomson Reuters. If so, it could be yours for the low, low price of $1,282 per volume.

That said, the opinion itself is in the public domain and could be set up on any number of print on demand services.
posted by jedicus at 8:21 AM on August 5, 2020 [3 favorites]

Navelgazer, thank you so much for pointing to this.

People who understand Westlaw: can you give more detail on the thing he mentions where another judge's dissent was deleted because of what happened with the opinion it was a dissent to? Did Westlaw actually delete it from their database or is it just harder to find there?
posted by brainwane at 9:12 AM on August 5, 2020 [1 favorite]

They deleted it. As the footnote says:

Fortunately, the dissent is readily found on Google searches and an official copy was preserved on the District Court’s docket.
posted by snuffleupagus at 9:33 AM on August 5, 2020

This was not only an outstanding opinion, but a great case for it. Nobody died, but we can see all too easily how somebody could have, possibly even imagine how Jamison felt sitting for two hours under control of a racist cop who had already decided he must be guilty of something, not knowing if he’d leave that shitty Mississippi roadside alive. The damages were large enough a typical American can feel how much of a burden it is to just stick Jamison with the costs of someone else’s clear misconduct. Best of all, the defense fucked up bad by giving no reasons to reject one of Jamison’s claims, so this gets to be one of the incredibly rare cases that actually sees a jury, and the opinion couldn’t make it more clear that it does not constitute an exoneration of the officer.

I’m irritated that the attorneys agreed to let the city pull out as a defendant. The entire premise of qualified immunity is the (obviously mistaken) presumption that police are doing the People’s business in good faith. It’s also unjust to stick taxpayers with the cost of official misconduct, but in that case at least the injured (in principle) have remedy at the polls and Jamison would be made whole. To allow the cop to claim immunity because he’s working for the city, but to also allow the city to disclaim responsibility for the cop’s poor judgment, therefore leaving the plaintiff just 100% fucked, is an obvious travesty. Either the cop is operating with the approval of his employer or he isn’t, but somebody must be responsible for his tortious misconduct.
posted by gelfin at 11:19 AM on August 5, 2020 [9 favorites]

Fascinating read. I also appreciate all of the knowledgeable commenters in this thread who have explained how this is directed at the SC and might "force" them to make some decisions regarding Qualified Immunity.
posted by OHenryPacey at 11:19 AM on August 5, 2020

People with more legal knowledge, can you tell me if the following is the right way to think about this?

It seems like Reeves could perfectly well have ruled against the qualified immunity claim. He knows that would be overturned by the Supreme Court, but it's something he could have done - taken on the lousy precedent himself, as the Fifth Circuit ultimately decided to do in the other (Section 1981) case (let us not fail to celebrate the digs at those judges for their creativity in finding ways to apply anti-discrimination laws only to a white guy's case!). He could say "this is a bullshit system and I'm not going to endorse it." He knows, though, that the officer would appeal and would prevail and his opinion would be vacated and nothing would change.

So what he does instead is not just say "here are all the ways I'm forced to make this awful decision; it's so awful but my hands are tied." He's more strategic than that, and technically his hands aren't tied anyway (though functionally, yes). Instead, he lays out all this compelling legal and rhetorical reasoning why qualified immunity is a travesty and betrays the purpose of the law, lays it all at the Supreme Court's feet, and then find for the cop. This means that it's Jamison who gets to appeal and say that Reeves got the decision wrong. Which forces the Supreme Court to either uphold or overturn the whole decision - to either say "yeah, all this stuff he says about qualified immunity is correct, it's a bullshit system, and this is how we want it to work and we are upholding the decision" or "Nope, this has gone too far, time to ditch qualified immunity." Basically putting them in a box where it's really awkward for them to not take the case because if they find for qualified immunity they're indicting themselves. In order to uphold his finding they also have to uphold the racism he's made completely explicit.

So not just terrific writing but a really smart way to try to create change.
posted by nickmark at 1:21 PM on August 5, 2020 [13 favorites]

By the way, while I’m thinking about it, “you’re driving across the country with a massive load of cocaine, somebody knows about it and means to see you arrested, and their choice for accomplishing that was to deliver an anonymous tip to a random individual patrol officer in Bumfuck, MS” is possibly the dumbest coercive lie I have ever heard, and I’d have difficulty not telling Officer Dipshit so.

I’m pretty sure every one-horse Southern town has this same myth that their town is a waypoint on a major drug trafficking route from someplace scary and remote (like Chicago) to someplace else scary and remote (like Miami) and police in every one of them use that story to justify being complete dicks. They’ve also all got thriving chapters of the “Crips” and “Bloods” and “MS-13,” basically any gang an old white person is likely to have heard of on TV, and then there’s that one country road where all the “Satan worshippers” gather. So, you know, the cops have to bully everybody they encounter just in case.
posted by gelfin at 1:24 PM on August 5, 2020 [3 favorites]

nickmark: that's precisely what he did, though it will lay at the feet of the Fifth Circuit before it has a chance to go to SCOTUS. But yes, Judge Reeves has written one of the most passionate and beautiful opinions in the history of American jurispudence, arguing for his own ruling to be overturned and with force.
posted by Navelgazer at 1:31 PM on August 5, 2020 [10 favorites]

Footnote 35 explains why the court had earlier ruled against him on 14th Amendment grounds: "Jamison provided no evidence of comparative discriminatory treatment of those among similarly-situated individuals of different classes." Judges are bound not just by the law but also the facts before them. Imagine if Jamison had the resources to conduct a survey or otherwise demonstrate that there was a history of discriminatory stops. So frustrating - maybe I'll increase my monthly ACLU donation.
posted by exogenous at 3:15 PM on August 5, 2020

I’m pretty sure every one-horse Southern town has this same myth...

Speaking as the product of a one-horse Northern town, it’s not a completely Southern phenomenon.
posted by The Underpants Monster at 3:29 PM on August 5, 2020 [6 favorites]

To be clear, in my opinion Nina Pillard is the only person who could replace RBG on the bench. But Judge Reeves would be an excellent member and should hopefully have his place there.
posted by Navelgazer at 7:11 PM on August 5, 2020 [1 favorite]

I hate to say it, but this opinion is probably shouting into the wind. Does anyone honestly think the SC will take this case (if it gets that far) if they were previously unmoved by a ruling that lets cops off the hook for stealing a quarter million fucking dollars?

Judge Reeves totally destroys the precedent of “qualified immunity” by showing how the emperor has no clothes but justices Thomas, Roberts, Alito, Gorsuch and Kavanaugh quite simply DGAF.
posted by Big Al 8000 at 7:13 PM on August 5, 2020 [2 favorites]

Big Al 8000 This actually might be a case that pulls Thomas and possibly Roberts over. That's the point.
posted by Navelgazer at 7:21 PM on August 5, 2020

To be clearer, Thomas has notoriously lived in Scalia's shadow, but that also includes Scalia's defense of the 4th amendment, which was egregiously violated here. And Thomas has been more of an advocate for "black" issues in recent years. Roberts, likewise, has leaned more towards his left on obviously awful issues recently , so may be counted on to also rethink QI.
posted by Navelgazer at 7:31 PM on August 5, 2020

I am not certain Thomas would be moved by this. Perhaps. He's got a pretty strong Black Nationalist bent, which I only recently learned about. On The Media did a segment last year which they re-ran this past weekend with an author about Thomas and his writings and his approaches. The radio segment can be listened to here.

Or if you prefer a transcript, go to this page, scroll down to below the photo and hit "Transcript", and then scroll down about halfway down that entire webpage to where you don't see Bob Garfield's name and you see Brooke Gladstone's name, and then find the top of that to find the segment. It's easy to spot, and it is about halfway down the page.

The interview really made a lot of the few things I know about Thomas really click into place for me. And makes me wonder if he'd be swayed by this or not.
posted by hippybear at 7:33 PM on August 5, 2020

Just finished the opinion. Man… talk about threading the needle—and then plunging it into the very heart of the matter.

Reeves double-dog dares SCOTUS to get this right.
posted by silusGROK at 8:56 PM on August 5, 2020 [1 favorite]

this thread is literally eponysterical

there is either a breathtaking naivete or ignorance of how the courts actually work in this thread and all of you need to be disabused of this notion of "daring scotus." this is literally telling a vampire you can have my blood, but you'll never have my humanity! they just want your blood, that's it. also this judge has a LIFETIME appointment, there is literally no good argument for the guy striking it down and daring some cutout judge to reverse it. the line that judges are legally bound to follow these rules and precedent (big lol here) are absurd on its face as they reinterpret and invent rules all the time.

it literally takes 4 justices to hear a case and all 13 QI cases were postponed this term. don't you find it strange that even with justice thomas not being a big fan, you couldn't scrape together 3 of the 4 liberal justices on court to hear one case? what does that tell you about the ruling? the overwhelming majority of scotus supports qualified immunity. if a case ever gets up there, it'll get upheld 7-2 with thomas and sotomayor in dissent.
posted by interior crocodile aligator at 9:35 PM on August 5, 2020

SCOTUS is literally a vampire?! My god. I was so naive.
posted by biogeo at 9:59 PM on August 5, 2020 [5 favorites]

BTW, Thomas doesn't need any "pulling over" on QI. He, with his faults, has been out in front on this one -- not for any stated reasons of justice, but because it's something that just wasn't what the law said but the Court had judicial feelings.

"I have previously expressed my doubts about our qualified immunity jurisprudence. Because our qualified immunity doctrine appears to stray from the statutory text, I would grant this petition."

posted by away for regrooving at 12:40 AM on August 6, 2020 [3 favorites]

@aligator, I certainly can't know, but I speculate that the liberal justices are shopping for a case that 1) they can win, not just get heard and lose because one of them isn't on board, and 2a) they are either okay with Thomas writing the majority opinion, which could be... a thing, or 2b) can get Roberts on board.

they reinterpret and invent rules all the time

Who, district judges? Not for real long.
posted by away for regrooving at 12:44 AM on August 6, 2020 [4 favorites]

I hate this country sometimes.
posted by james33 at 5:50 AM on August 6, 2020

To answer a question above about the judges options, Judge Reeves is a U.S. District Court judge, which means he is a trial judge for a federal court--he has a lifetime appointment and cannot be fired or even significantly disciplined for any non-egregious act. So he can rule however he wants. However, if he his decision doesn't conform to the law, the Fifth Circuit Court of Appeals will overturn the case and likely say something mildly snide like "the decision has no basis in law". Usually an appeal is hard to win, because the trial judge's ruling is given enormous deference in certain areas, especially rulings of reliability or credibility of evidence. However, if a decision is appealed on a matter that is purely legal, the lower court's ruling is given no deference and the appeals court just applies the law as understands it.

Here, it doesn't appear that the decision hinges upon any material fact, even though the parties don't agree exactly what happened. That's because even if the plaintiff's story were 100% accurate, he'd still lose under the current law. So there's no relevant factual dispute and the only question is the correct application of the law. So Judge Reeves was free to rule however he liked, but any other decision would have been reversed quite easily. Judge Reeves wouldn't get a demerit or anything, but judges generally don't like to be reversed, it's like being called out in front of your peers for doing your job wrong. This way, the opinion is legally sound, and Judge Reeves still gets to make his point. Even better, future lawyers can cite to this opinion as evidence that there is growing unease with the QI doctrine in the federal courts. Nobody likes citing to an opinion that is later reversed.
posted by skewed at 7:23 AM on August 6, 2020 [10 favorites]

there is either a breathtaking naivete or ignorance of how the courts actually work in this thread

Well, yeah, I flat-out admitted it in my case and asked questions. Maybe dial back the condescension just a scoche?
posted by EmpressCallipygos at 7:30 AM on August 6, 2020 [8 favorites]

the argument that he basically faces no professional repercussions (for ruling to dismantle QI) and what little push back he faces is from his peers (who support QI) is not in any way enlightening of his decision making. in fact, the argument that judges "don't like to be reversed" on what is clearly a egregious violation because it violates some norm or civility is incredible cowardice on his part. what good is his reputation if he keeps propping this system up?

it's hard to argue that there's growing unease with the QI doctrine in the federal courts if every single one of them is being upheld. he is a part of the system is that is enforcing and upholding this, he should be making trouble! this incredible deference to what is clearly a bad decision is truly astounding.
posted by interior crocodile aligator at 5:36 PM on August 7, 2020

I do not think your knowledge of how courts work is as good as you think it is.
posted by biogeo at 7:38 PM on August 7, 2020 [6 favorites]

the argument that he basically faces no professional repercussions (for ruling to dismantle QI) and what little push back he faces is from his peers (who support QI) is not in any way enlightening of his decision making.

Nor is it meant to be, because the same is true of every U.S. district court judge, and they obviously do not all issue opinions like this. The point of going over that was to explain what options Judge Reeves had, not why he chose to do what he did. I explained my understanding of why he would rule against the plaintiff, and it has nothing to do with being afraid of violating norms or civility. Judge Reeves is actually pretty well known in his district as not being afraid to go against the grain. But here the legal question before him was so clear that any other ruling would be farcical. The law is bad, it will yield bad outcomes. The cop may have committed an egregious violation of justice and decency, but he's not liable for doing so under well-established law. Ruling any other way wouldn't be making trouble, it wouldn't establish new precedent or chip away at anything. It would be akin to ruling a criminal defendant not guilty of drug distribution because methamphetamine or cocaine isn't a prohibited substance. Trial judges don't make law, their decisions aren't even binding on other judges in the same courthouse, much less other districts or circuits. The Court of Appeals can make decisions that are binding on lower courts in that circuit. If they really want to, they could end QI in their circuit for at least as long as it took the Supreme Court or Congress to act.

You don't have to be impressed with Judge Reeves or this opinion, and I tend to agree that some reactions to it are overly optimistic, but to accuse the thread in general of breathtaking naivete or ignorance on one hand, and criticize the decision as clearly bad on the other is pretty rich.
posted by skewed at 7:46 PM on August 7, 2020 [4 favorites]

I would also like to understand why it would have been any worse than current status quo for this judge to have ruled against QI. If the decision is reversed later, so be it - that's not worse than what happened to the plaintiff now and it's arguably slightly better. I'd like to know a better reason than"judges do not like to be reversed" for this judge's decision to grant QI instead of writing the exact same opinion, if necessary, just with the opposite ruling with the aid of some slight finessing of some arguments noted within it to make it sound reasonable. I've read judges' Opinions out there which are stark raving unhinged; it's not like this judge's ruling had to be literally and mathematically perfect or anything. There was room enough for plausible creative interpretation, even if someone else would immediately overturn it, at least there would have been... something concrete here.
posted by MiraK at 2:07 PM on August 9, 2020

I'm not in the legal profession at all, but I think it might be because, this decision being written the way it is, provides fodder for a challenge which lays a bit of a Catch 22 for an upper court. I think, (but am not sure) that any case brought up for appeal is based on the decision being passed up and isn't necessarily subject to new testimony, just the decision and the submissions to the court during the trial.

So, this decision... gets challenged.... and the court above it has to say it either agrees with the decision or it rejects the decision. But with all that other stuff in the written decision, the court above is possibly bound to say it also agrees with all the stuff that says this decision is unfair but that it also says it is a good decision, all that other stuff aside. Which opens it to another challenge at a higher level, with all that language intact....

Or else it overturns QI for this case and begins to establish a new body of case law, which will also be challenged, but with that language as supporting language.

It's literally kicking the can down the road, but in this case, the road runs up the hill toward the SCOTUS, bit by bit.
posted by hippybear at 2:30 PM on August 9, 2020

I would also like to understand why it would have been any worse than current status quo for this judge to have ruled against QI. If the decision is reversed later, so be it - that's not worse than what happened to the plaintiff now and it's arguably slightly better.

I don't think it would have been any worse for either the status quo or the plaintiff for this decision to have come out differently. I don't think it would have been any better, either. This wasn't a close case, there is no substantive factual dispute, and the controlling law in the Fifth (and currently all other) Circuits is clear. Again, bad law yields bad outcomes.

I put in the example of throwing out a criminal case on the grounds that cocaine isn't/shouldn't be a controlled substance because I think it's a pretty strong parallel (I said "ruling a defendant not guilty" originally, but please pretend I didn't, it ruins the parallel and is wrong for unrelated reasons). Our drug laws are fucked up, there are excellent arguments that they are incompatible with a just society, and there are lots of people, judges included, who think they should be changed. But dismissing an indictment on those grounds wouldn't benefit anyone, the decision would be almost immediately reversed, and the judge wouldn't be taken seriously.

Now, I'm not saying the fact that his reputation would be damaged is the reason Judge Reeves ruled this way--I tend to think he would do the right thing if he had the power to do so, even if it was an unpopular decision (I have met him, he seems like a swell guy, but we're not friends or anything). The reason (I think) he chose to rule this way even though he had the option not to is that he thinks the controlling law here is clear, and he doesn't think it's his role to issue legally incorrect decisions in order to reach better outcomes.

I think it's fair at some level to criticize judges who participate in the system at all, it's unjust and the judges do a big part in upholding it and legitimizing it. That's one reason I don't think I could ever be a judge (not like they're begging me to do so), I couldn't take the job knowing I'd fairly frequently have to do things like impose a mandatory minimum sentence of ten years on a non-violent drug offense. I could try to buck the system, because at the federal level, a judge has a lot of power and autonomy, and can have a hugely positive or negative influence on the outcome of a case. But there are limits, and a judge really can't avoid doing terrible things from time to time (at least terrible in my opinion). A judge has the power to say "fuck it, I know the mandatory minimum in this case is 120 months, but I'm gonna write the most eloquent fucking opinion in history and enter a judgment imposing probation only." That wouldn't change anything, that decision would be appealed and the judgment stayed on an emergency basis within hours, and the guy's gonna end up with 120 months anyway--unless the appeals court thinks the trial court was legally correct, which they won't. It's totally true that judges make law, but not trial judges to any significant extent. Nothing is real until it's either not appealed or upheld by a higher court. So anyone who wants to become a federal judge has to be comfortable with that, or at least make the sitting President and Congress believe they're comfortable with that.

So at this point, I'm rambling...
posted by skewed at 3:53 PM on August 9, 2020 [5 favorites]

I could try to buck the system, because at the federal level, a judge has a lot of power and autonomy, and can have a hugely positive or negative influence on the outcome of a case. But there are limits ...

I suppose this is what I'm hung up on here. Yes there are definitely limits, but this judge does not seem opposed to making Strong Statements regardless of those practical limits.

My question is, why didn't he use the ruling itself as part of that Strong Statement? Why did the eventual legal outcome not matter when it came to all the effort that went into authoring this opinion - he did not consider this effort futile - but apparently he did consider it futile to rule differently?

He COULD have ruled differently and he chose not to. I'm very curious as to why. Is it just because he doesn't like being overturned? Does being overturned a lot hurt judges with lifetime appointments?
posted by MiraK at 9:22 AM on August 10, 2020

It’s because by not issuing an obviously incorrect legal opinion he can make it a bigger issue than just this case and set up the challenge to QI more broadly. He can’t change QI himself but he can make clear that the correct legal opinion is also unjust. He’s aiming beyond this case and trying to take on the whole corrupt forest rather than pointlessly die on the hill of this one tree.

(My apologies for the bizarre mixing and abuse of metaphors there; I’m on some pretty amazing painkillers right now.)
posted by nickmark at 10:12 AM on August 10, 2020 [2 favorites]

By doing it this way he gives Jamison the opportunity to keep appealing it up to scotus, saying “is this unjust outcome really what we want?” and creating the opportunity for scotus to overturn the precedent. If he ruled the other way, it’s much less likely to get to scotus at all; McClendon would win on the first appeal and the game would be over.

(I think. IANAL, and again, painkillers.)
posted by nickmark at 10:22 AM on August 10, 2020 [5 favorites]

He COULD have ruled differently and he chose not to. I'm very curious as to why. Is it just because he doesn't like being overturned? Does being overturned a lot hurt judges with lifetime appointments?

I think most federal judges view their job as finding facts based on evidence presented and then applying the law to make a decision. I don't think many judges want to think of their job as doing the right thing, and then figuring out how to make it legally valid. Good judges know that they are always influenced to some degree by their own biases, so in more difficult cases, it's very hard, probably impossible, to just call balls and strikes.

However, this was not a difficult case. When the law as it stands is applied to these facts, this is what is "supposed" to happen. What should happen? It depends on who is answering:

I bet (though again I don't know) if you asked Carlton Reeves, concerned citizen, what result he would find personally satisfying, he'd say something like "the cop should be fired, and he should have to do something to make up for the injury to the plaintiff's dignity, and compensate him for his lost time and damage to his property."

On the other hand, when asked to make a judgment on this case, United States District Judge Reeves answered with an order basically tanking the plaintiff's case, because that was the outcome the existing law unambiguously requires. Judge Reeves did that, I presume, because he thinks he should rule based on his understanding of the law, not his understanding of what he would like to see happen.

The law gives judges in some circumstances vast discretion, and in those situations, they are empowered to do they think is right. This was just not one of those situations. Since there is so little oversight of a judge's day to day actions, he can still rule however he wanted, but ruling without regard to the law is an abuse of the authority given to judges, and most of them take that very seriously. Still, he felt the issue was important enough that he wanted to provide the arguments as to why the law here is bad. But he never suggests that it's not the law.

The law can change, QI could be gone tomorrow if Congress wanted to act (or changed to be more just), it's not required by the Constitution or anything. Any state legislature could also change QI within that state, to the extent it doesn't violate federal law (a lot more complicated).
posted by skewed at 11:13 AM on August 10, 2020 [1 favorite]

Thank you for posting this work of art. Although I am now very sad and tired.
posted by mumimor at 11:47 AM on August 10, 2020 [1 favorite]

When Scalia was on the DC Court of Appeals, he was well known for writing opinions that excoriated the relevant SC ruling while nonetheless upholding it as settled law. It didn’t change anything, but it did let Reagan know how he’d rule if he got a promotion.

This ruling was a calling card to anyone listening that Judge Reeves would like a promotion. To a position where he would have the power to make the right ruling rather than the one required by precedent.
posted by Big Al 8000 at 8:49 PM on August 10, 2020 [7 favorites]