qualified immunity

It Can’t Happen Here

From the keyboard of Surly1
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Originally published on the Doomstead Diner on June 2, 2020

"I swear to the Lord, I still can't see, why Democracy means, everybody but me." –Langston Hughes 


I'm old enough to remember when White America was outraged– OUTRAGED, I say– when H. Rap Brown offered America the simple truth that "Violence is an American as cherry pie" in July of 1967 at a press conference in Washington, D.C. That was long before the Chicago police and the FBI murdered a sleeping Fred Hampton in December of 1969.

I'm old enough to remember WMD. Remember those?  "Yellowcake," the excuse for a Republican administration lying us into the wrong war, with Fox News and Hate Radio accusing those opposed of treason. Remember The Great Recession?  Presided over by a Republican president who having pissed away the Clinton budget surplus on tax cuts (and more tax cuts) for a war based on lies?  The effects of which then exacerbated by Republicans in Congress determined to sabotage whatever Obama might have tried to ease the suffering of millions?

Memory: the liberal superpower. But the long history of this country is written in blood, built on the bones of the indigenous, the slave, the immigrant laborer, and other "conditional citizens," whose rights to "life, liberty, and pursuit of happiness" are conditioned upon not being locked on by a police searchlight or targeted by police weapons.

There has been an open season on black American males with no bag limit. Cops are able to summarily execute black Americans with minimal, if any, consequence. Hence the long overdue rising which has bubbled over this week In response to the on-video murders of George Floyd, and before him Ahmaud Arbery. But a list of the dead would be a roll call of ignominy: Breonna Taylor, Freddie Gray, Michael Brown, Eric Garner, Tamir Rice, Philando Castile… 

In late stage capitalism, where everything has been commoditized, where almost all speech is marketing, no one should be surprised that police are the occupation army of capital. Occupation armies treat the citizenry as hostile. Expect no less on America's streets.

Yet the brutality and direct targeting of journalists is new for this country, another milestone in the march to fascism.

Trump has sown hatred of the press for years, borrowing techniques more often seen in third world dictatorships, Now journalists are under assault from police and protesters alike.

On Friday, while reporting on live TV, CNN's Omar Jimenez and his crew was arrested as the crew covered George Floyd protests.  CNN reported that the arresting officers were from the Minnesota State Patrol. The reason for their arrests was not immediately clear, but was later attributed to orders issued by Gov. Tim Walz to clear the area. 

CNN's Josh Campbell, also reporting from the area but not standing with the on-air crew, said he, too, was approached by police, but was allowed to remain. Jimenez is black and Latino, while Campbell is white. For his part, Walz apologized to CNN, saying there was "absolutely no reason" for the arrests and that he took "full responsibility."

Elsewhere around the country, journalists were harassed and targeted by police.

In Louisville, a police officer fired pepper balls at a local TV reporter, Kaitlin Rust. In Denver, police fired paintballs and tear gas, hitting a news photographer and his camera. Bellingcat has documented at least 50 separate incidents where journalists have been attacked by law enforcement.

Those who say that Trump's rhetoric is just harmless bloviating are kidding themselves. We are watching a real time devolution to fascism, American-style. Steve Bannon may be gone from the White House grounds, but his message lives on. The press is the enemy, says Bannon.

The media here is the opposition party. They don’t understand this country. They still do not understand why Donald Trump is the president of the United States.”

But they're going to understand it good and hard. Bannon's advice is to “flood the zone with shit,” overwhelming the media with disinformation, distraction, and denial. After three and a half years, the American press finds itself having gone from being called names to becoming targets of police suppression. Late Tuesday, Trump emerged from his bunker for a photo op and a message of repression.


"At this point we should probably just be called the states of america."

–Sarah Silverman

Trust in the government has steadily eroded ever since the Warren Commission report. Vietnam, death tolls. Pentagon Papers. Iran-Contra and that lying lout Oliver North. Pardons all around. Yellowcake. Cooked intel. War in Iraq after 9-11. Concealment, deception and outright lies have characterized U.S. national security policy for decades. So little surprise that some people are willing to dismiss appeals to authority and evidence-based claims.

Others are as eager and willing as ever to turn over their legal rights to a legally spurious junta making it up as they go along. 

Far-Right extremists Are showing up, hoping to Turn the George Floyd Protests Into a new civil war. They show up in cars with license plates removed, and often dress in "antifa" drag, wearing the black goodies associated with "black bloc" anarchists. Plus it appears that Agents provocateur may now be part of the standard policing playbook for dealing with protest. For those interested, the blog Just Security has published an analysis of these infiltration tactics, particularly those of "accelerationists," an extreme subset of white nationalism whose goal is to bring about chaos and destruction via a Charles Mansonesque race war.

Many reports from Minnesota of cars without license plates. When approached by police the occupants scatter on foot. Here is one. 

During Occupy I told anyone who would listen to assume that anyone exhorting you to violence is a cop or a spy. Now you can add infiltrator to the mix.

Trump called the protesters “thugs” and threatened to have them shot. “When the looting starts, the shooting starts,” he tweeted, parroting a former Miami police chief whose words spurred race riots in the late 1960s. Marvelous deflection from the over 100,000 deaths Trump has caused by his mishandling of the Covid-19 pandemic. All the better to drive Whites into the arms of the assorted fascists, grifters and neo-Confederates that comprise the Trump regime. 

And we learn that "antifa," that all purpose blamesicle beloved of the alt-right, (and which is not an organized group), is to be designated as "terrorist organization." As with so many Trump pronunciamentos, the government has no existing legal authority to label any domestic group in the manner it currently designates foreign terrorist organizations.

Antifa just means "anti-fascist;" It's not a club holding monthly meetings.  But for the fuzzy thinkers of the right, antifa is some centrally controlled, George Soros-funded Monolith of The Resistance. Within the cult of perpetual victimhood that defines the drooling right in this country, antifa is a made-to-order whipping boy.

Why does he get away with it? The complicit beltway media and their apparatchik bosses whose fat livings depend on Republicans returning their phone calls. And whose stock in trade is "bothsiderism" punctuated by "whataboutism." A.J. Liebling famously said, "Freedom of the press is guaranteed only to those who own one." And the bookers and producers understand that and follow their assigned scripts, all of which support the existing system and the preservation of capital.


This week we learned that the only way to protest correctly is show up armed with guns at a state capitol.


10 steps to closing societies and to totalitarianism.

Invoke a terrifying internal and external enemy.
Create secret prisons where torture takes place.
Develop a thug caste or paramilitary force not answerable to citizens.
Set up an internal surveillance system.
Infiltrate and harass citizens' groups.
Engage in arbitrary detention and release.
Target key individuals.
Control the press.
Cast criticism as espionage and dissent as treason.
Subvert the rule of law.

–Naomi Wolf

We should have undone the so-called PATRIOT Act and other pernicious laws before now. Indefinite detention, anyone? Trump and Barr will exploit the far corners of American law to hound their opponents. So for the second or third time in a decade, I awaken to learn I've been labeled a terrorist by my own government for believing that the government is abusive. So now I find myself an enemy of the state. It's not even Wednesday yet.


"When fascism comes to America it will be wrapped in the flag and carrying a cross."

–Attributed to Sinclair Lewis

So why don't we just bring civil charges Or otherwise attempt to bring rogue cops to some sort of justice? 

But when Goerge Floyd’s family goes to court to hold the officers liable for their actions, a judge in Minnesota may very well dismiss their claims. All because of a legal doctrine called "qualified immunity" that specifically shields government officials, including poilice, from most such claims. Police act like laws don't apply to them because of 'qualified immunity.' They're right.

The Supreme Court created qualified immunity in 1982. With that novel invention, the court granted all government officials immunity for violating constitutional and civil rights unless the victims of those violations can show that the rights were “clearly established.”Although innocuous sounding, the clearly established test is a legal obstacle that’s nearly impossible to overcome. It requires a victim to identify an earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the official is immune. Whether the official’s actions are unconstitutional, intentional, or malicious is irrelevant to the test.

One imagines that if police were subject to civil liability for their actions, including loss of pension oif convicted, we might quickly see a change in the amount of abusive behavior on the part of police.

As I got ready to post this, events have swarmed these scribblings. Moments after threatening to unleash the military against the American people, styling them "antifa," or "professional anarchists” – for the crime of seeking racial justice, #BunkerBoyTrump had military police teargas and shoot rubber bullets into a peaceful crowd. This display of supposed "toughness" was so a reality TV "president" he could hold a pointless photo op, clutching a Bible in front of a church. Thus making Sinclair Lewis a prophet:  Fascism has come to America.

I'm old enough to remember a different America. One where the cop on the beat or street was a potential source of aid and safety. Where people didn't cower in fear or snarl in loathing at their neighbors for their political beliefs. And one in which every yahoo with a grievance didn't brandish an AK-47 (or a hunting bow) at a public demonstration. Or where the President at least pretended to care about the welfare of his fellow citizens. But those days are long gone, as the American public learns what foreign governments have already learned through the last three and a half years: America is no longer to be trusted or counted upon.


banksy 07-flower-thrower-wallpaperSurly1 is an administrator and contributing author to Doomstead Diner. He is the author of numerous rants, screeds and spittle-flecked invective here and elsewhere. He lives a quiet domestic existence in Southeastern Virginia with his wife Contrary. Descended from a long line of people to whom one could never tell anything, all opinions are his and his alone, because he paid full retail for everything he has managed to learn.

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