06/11/24 Clark Neily

Moral High Ground
Clark Neily
Cato Institute

Clark Neily is senior vice president for legal studies at the Cato Institute. His areas of interest include constitutional law, overcriminalization, coercive plea bargaining, police accountability, and gun rights.  56:00 W/FULL TRANSCRIPT

Audio file

Roark/Announcer: (00:00)
The following program, moral High Ground is sponsored by www.drugtruth.net publishers of to end the War on Drugs and Forever, Salem, the American Inquisition, written by Reverend FD Becker, 

Reverend Becker: (00:16)
Exposing the sins and the sinners of this drug war. I am Reverend Becker,

Reverend Becker: (00:31)
Indeed, America's first eternal war. That's what this is all about. Uh, this war will last until, well, hell, Jesus comes back, I suppose, because that's what they seem to wanna believe. That, uh, I don't know. It is just crazy. Um, the drug war, it's, uh, well over a hundred years old. In fact, it's 110 years old if you go back to the Harrison Narcotics Act of, uh, 1914. But today, we're gonna talk about, uh, qualified immunity. And I wanna start with this, this little segment I wrote up last night. We do not need drug war cops always serving the needs of the traffickers, ambushing people on the highway kicking in doors at 3:00 AM always seeking control and remaining horribly addicted to identification. If cops mess up qualified immunity will get them some weeks of paid leave while the boss tries to build them up and tries their damnedest to massage the laws, situations, and everybody's memories to ensure they escape justice and wind up getting a fat pay raise from their blunders. Now, with that, I wanna, uh, welcome our guest for today. He's with the Cato, uh, organization, uh, Mr. Clark Neely, who's written, uh, significantly about this topic of qualified immunity. Hello Clark. Welcome to the show. 

Clark Neily : (01:54)
Thanks for having me. Great to be with you. 

Reverend Becker: (01:56)
Yeah, Clark. Um, you know, you, you had a couple of, uh, recent articles about the, uh, qualified immunity. And, uh, let's first talk about your organization. Who is and what is Cato? 

Clark Neily : (02:09)
Keto Institute is a libertarian think tank based in Washington, dc um, that has been around for over 40 years that seeks to advance the principles of individual liberty, limited government free markets, and peace. Um, our philosophy is that, uh, we have a moral obligation to leave other people alone as long as they are leaving others alone. So everybody should be free to pursue their own version of the American Dream, as long as they respect the equal right of others, uh, to do the same. And of course, that's the, the spirit of our Declaration of Independence and, uh, the, the genius, uh, of the system of government that is both described and pre-prescribed by the US Constitution. But unfortunately, we've, uh, we've drifted from those, uh, uh, timeless principles. And so part of what the Cato Institute tries to do is to, is to help bring them back. 

Reverend Becker: (02:56)
Well, thank you for that. Um, the, the, to me, the, the whole situation has grown from, well, the drug loss started this deviation from reality and truth. Uh, and then the corporations, uh, and, and, and again, I, I've been gathering information to, um, to go after every member of the drug war monger cartel, that I'm not talking about the Sinaloa cartel. I'm not talking about the DEA, I'm talking about the urine testers and the treatment providers and the prison food, uh, providers, and all of these people who need the drug war in order to meet their mortgage payment. There are millions of them around the world. They're, they're not just politicians and, uh, um, engineer. You guys are noisy. Uh, and, and, uh, the, the whole point I'm getting at is that there is not one of them, not one preacher, not one member of the press, not one politician. 

Reverend Becker: (03:59)
There is no person on this planet willing to come on this show and defend this policy. And I, I get to preaching, uh, quite often, Clark, uh, you have to forgive me, but the, the whole point of it is there is no need for this drug war. It is a sham, a scam. Um, and one of the main tactics they use is, uh, to be out on the street. Uh, the cops can mess up. They can do, uh, illegal things and throw you in or me in a cage, uh, despite the fact that they don't know what they're doing or they're just doing things the wrong way. And that's part of the qualified immunity scenario, is it not? 

Clark Neily : (04:38)
It is. And, and one of the most important things that you have to decide when you clothe particular people with the awesome power of government, um, and equip them, uh, with weapons that they can use to take other, uh, fellow citizens into custody, is, um, what amount of accountability, uh, are you going to require from these people who have been clothed with this extraordinary power and discretion? And of course, their preference, uh, generally will be something close to zero accountability. Um, so they can just do whatever they think they should do and not pay any consequences when they mess up. Uh, but that's the opposite of what you should do. Um, and it's very simple. We know this, you know, from, from, uh, our, our own experiences as human beings and, and from the history of all governments, that the more power that you, uh, convey to a person, the more accountability has to come with it. 

Clark Neily : (05:29)
Um, and qualified immunity, um, is a, a judge made, uh, legal defense that, um, that, that seriously undermines the amount of accountability that police have. And I'll just go on really quickly and say there are really only three paths to accountability when you're talking about holding, uh, government officials, including particularly police, um, accountable, um, to the Constitution. One is you can prosecute them for crimes that they commit, and that can be effective, but it's very rare, particularly because prosecutors work with police and are, um, very disinclined, uh, to, to, uh, you know, to prosecute them criminally. Um, you can rely on, um, internal accountability mechanisms like internal fail affairs or, uh, citizen review boards, which tend to be captured by their local police department. Not always, but often. Um, or, and this is what, uh, our primary avenue of accountability in our system of government was meant to be. 

Clark Neily : (06:22)
You can empower citizens to sue police and other government officials who violate their rights. And that's what Congress decided to do in the wake of the Civil War when it enacted what was then called a Ku Klux Klan Act. And we now call section 1983. And very simply, it is a federal law that empowers ordinary citizens like you and I to sue any state actor. That means any government official who's employed by the state government or a municipality to sue that person for the deprivation of any legal right, whether constitutional or statutory. Um, that was the very broad and very powerful remedy that Congress chose in 1871. And then the Supreme Court, in its infinite wisdom, uh, between 1967 and 1982, decided to completely hollow out and undermine, uh, that, uh, very broad remedy that Congress enacted, uh, by adopting this judge made defense of qualified immunity that I'm sure we'll get into. 

Reverend Becker: (07:16)
Yes, sir. And, and that's, uh, I don't know, it, it seems like it's gotten multi tentacles, if you will, that it reaches out in various different ways. Um, some of it's not necessarily even being arrested, but, uh, I, I see so many of these, um, uh, I I watch a lot of these, uh, first Amendment auditor videos on YouTube. Yeah. And I see so many of the cops come up and they put a flashlight in your face. They put it on your camera. They deny you the right to capture their presence or what they're up to. Uh, and, and that's just one more, uh, means whereby they use their power, their authority to deny us rights, which are basically ours, because that, um, that's, that's, I can't think of the term, but, uh, prior restraint or something, uh, with that flashlight, right? 

Clark Neily : (08:04)
Yeah, that's right. That would be an example of a prior restraint. Um, it's an unconstitutional effort to prevent ordinary citizens from gathering news and making a public record, um, of what police and other government officials are doing. You're exactly right. It is a prior restraint. It is a violation of the First Amendment. But it's a great illustration because the Supreme Court has not yet held specifically that there's a right to record police in public. Now, every lower court that has looked at the question has said that there is, but there are still a number of jurisdictions that have not weighed in on the question. And guess what if police in those jurisdictions prevent you from recording them, even though everybody agrees that you have a First Amendment right to do so, they will still be able to assert qualified immunity if you sue them for violating your First Amendment right. 

Clark Neily : (08:51)
To record them in public for the simple reason that they will argue, well, you know what, in this particular jurisdiction, that right is not yet clearly established by binding case law from the courts in this jurisdiction. So therefore, the fact that every other court has said there is a right, the fact that our local court here hasn't said so yet, means I get off the hook. So yes, I violated your First Amendment right to report police in public not disputing that. What I am saying, and again, I'm pretending to be the officer here, what I am saying is that because of the happenstance that no court in this particular jurisdiction has yet weighed in on the question, I get a free pass for violating that. Right? That is the essence of the qualified immunity defense that we've been talking about. What it says in effect is that a police officer who violates your rights can nevertheless get off the hook if they can, if they can say that, if they can incredibly say, look, there's no case with nearly identical facts in this particular jurisdiction. So even though I violated your rights, we don't have a case on point. So I get a free pass that's qualified immunity in a nutshell. 

Reverend Becker: (09:54)
Ah, it's just so, I don't know Nazi, like if you ask me that, uh, we can just, and, and even if the cop knows this in the, in his mind, he's aware of it, but he can say he doesn't know it, and therefore it can be a defense of just the same. Right? 

Clark Neily : (10:12)
I I can give you a concrete illustration. Um, uh, there was a case out of Denver, Colorado, um, which happened to be one of these jurisdictions where the local courts had not yet spoken to the question of whether you have a right to record police in public, even though that everybody else agrees that you do. And, uh, uh, a couple of police officers, uh, were effectuating a, a violent arrest of someone they suspected of, of carrying drugs. The person had put a sock into his mouth, they thought the sock might have drugs in it, so they were trying to punch that sock out of his mouth. And so this guy started recording them. They saw him, they came over, they surrounded him. They ordered him to turn over his tablet, which is totally unconstitutional and illegal, but he did, because, you know, they were scaring him. 

Clark Neily : (10:55)
They tried to delete the, the video, they failed. Uh, he got the tablet back, and then he sued them for violating his right to record them. And, and this is where it gets incredible. He not only sued them, but the department, the police department asserted as a defense that they had trained these officers. They had specifically trained these officers that there is a right to report in public, and they must not interfere with it. The police said, yes, we were trained by our department that there's a right to record us in public and that we should not interfere with it. But here's the thing, the local courts have not yet weighed in on the issue. So we still get qualified immunity, even though we violated our training. And even though every other court that has looked at the question has said there's a right to record police, it just so happens that the local courts haven't said so yet. And you guess what? The courts agreed, and they granted qualified immunity to those police, um, not because what they did was okay, and not because there was any dispute about whether they've been trained not to, to do it just purely by the happenstance that there wasn't a case on point in that particular jurisdiction. Here you go, guys. Free pass. 

Reverend Becker: (12:01)
God, that's just, that's just too scary. I, I, I think about the, the situation, you know, people out on the street, they're, they're trying to do right? Maybe, uh, uh, get a little upset with a cop, you know, uh, the cop get out of the car, but, um, force 'em to stand in front of their car so they can be filmed, et cetera, et cetera. And, and I guess what I, I'm, I'm wanting to say is that they, they can do these, um, they can require you to move to that front of that car simply because they can say they're afraid. They can talk about officer safety. Uh, they can, they can talk about, uh, I, I don't know. You, I don't know, you know, what you might do, et cetera, et cetera. And, and this tends to, I I don't know, younger men in particular. 

Reverend Becker: (12:46)
It, it 'em off. They tend to object. They tend to object. And if they happen to stiffen up just a little as cops holding their shoulder arm and they stiffen up a little bit, it can lead to a beating. It can lead to being stomped on and kicked and, and handcuffed and tear gassed and tased and on down the line. Um, and, and I guess what I'm wanting to lead to here is that the, the inference from that cop that, oh my God, he might be, uh, wanting to fight me. And so therefore, he is given larges to just pulverize another person, uh, just on his perception. And let, let's talk about that. Is that qualified immunity as well? 

Clark Neily : (13:28)
Well, there's a, I think an intersection of a number of challenging and problematic dynamics here. The first one is that according to the Constitution, a government official stopping you and preventing you from going out about your business is supposed to be a really big deal. And it shouldn't happen very much. But the Supreme Court, particularly with the advent of the automobile, um, so now we've got people driving these cars around, um, where they, you know, before it was just horses. So now you've got cars. There is certainly an extra hazard there. But along with that, there's this new web of regulatory requirements. So your car has to have a license plate, and then later it had to have an inspection sticker. And there's all these rules of the road that you're supposed to follow, right? So what happens is that police now have the ability to pull over really just about anybody they want to. 

Clark Neily : (14:17)
And it's kind of a sardonic inside joke among police that if you wanna stop somebody who's driving a car, just follow them for 15 or 20 seconds, maybe a minute, and you'll be able to ob observe a traffic infraction that enables you to stop them. And the Supreme Court has said, that's enough. Any infraction will do. And even if it's completely pretextual, even an o if an officer says to himself, Hey, you know what? I'm suspicious about this teenage black kid driving A BMW in this neighborhood. I know it would be unconstitutional for me to stop him just for racial profiling, but if I follow him around for a minute and wait for him to make an unsigned lane change, or he rolls through a stop sign, then I'll stop him for that, even though I haven't stopped anybody else all day for the same infraction. 

Clark Neily : (14:59)
And I'm definitely doing it just because he's a black kid. The Supreme Court is held, that's totally fine. Um, even if it's pretextual. And so there's, there's, first of all, there's the trivialization of your right to go on about your business without being stopped by government officials, unless there's a really good reason the Supreme Court has said, well, it doesn't really have to be a good reason. Any reason will do, even if it's purely contextual. The second concern is that, as you alluded to, uh, Dean Police create a very fraught situation when they pull somebody over it. I've been pulled over. You probably have, it's unpleasant. It's scary 'cause you don't know this person. They're carrying all these weapons. Sometimes they've got a bit of an attitude. Um, and you, you know, you're not very happy about the fact that you're now gonna be late to pick up your kids at school or whatever it might be. 

Clark Neily : (15:50)
So nobody's very happy with the situation. Um, and police in many, uh, jurisdictions are trained to interpret, um, any sign of non-compliance or, uh, questioning their orders or their authority as a sign of danger. And so some of them will then ramp up, uh, their aggressiveness in an attempt to get tactical control of the situation, which the, some of them mistakenly call command presence. That's not really command presence. Ask anybody who's ever been in the military, what really command presence means. It's not that. Um, but now you've got a situation where someone may have been pulled over for no good reason. They've got a police officer, you know, they just ask a simple question like, why'd you pull me over? And suddenly, this guy's copping an attitude, right? And the officer, uh, basically the Supreme Court has created something called the Scared Cop rule, which essentially means that the officer can use whatever amount of force they might think is reasonable under the circumstances, even according to their own purely subjective in, uh, impression. 

Clark Neily : (16:51)
Even if an objective observer would've said, Hey, that, that that wasn't a furtive gesture. There was nothing to be afraid of there. If the police officers subjectively feared for his or her safety, then they can respond with force. Uh, and so that's the second dynamic. So you've got the, the, it's very easy to stop people when they're out going about their business, even on just a trumped up in, uh, you know, pretextual traffic infraction. Police have a broad ray of discretion to use force, including lethal force if they, if they are in fear for their safety. And then third, as you mentioned, you've got the qualified immunity dynamic that creates this permission structure around them, uh, where they operate in an environment of near zero accountability, which then feeds back into these other perverse dynamics. Now, let me say this, just by way of closing. I have friends who are police, um, and some of them are very honorable, hardworking people, doing a dangerous and sometimes very difficult job with honor. Uh, but unfortunately, that's not all of them. Some of them do the opposite. And, and when you get pulled over, you don't know which kind of police officer you're dealing with. And that can be very scary. 

Reverend Becker: (17:53)
Yes, it can. Um, I wanna talk about, uh, I don't know, big city lit, little city a little bit. Uh, my city of Houston, uh, biggest city in Texas, uh, we happen to have a much improved police department. I, I will say that, uh, back when I started doing these programs, we were the world's leading ust jailer. We were locking up so many people. We were putting 'em on buses and shipping them to other cities. The, the following morning, we were just so full. Um, they have improved. I like to think part of it is the interviews they've done here on my show. I know that had a little bit to do with it. But the point of it is, I guess the smaller towns around Texas, there, there are cities where if you get caught with a, uh, a cannabis, um, uh, a THC vape, they want a $5,000 penalty just to let you outta jail. 

Reverend Becker: (18:43)
It's, it's like a, a, you know, collusion or corruption, certainly. And, and I guess what I'm saying is the cops in here in Houston are pretty good. They're, they're nowhere near perfect, but they're a lot better than they used to be. I, I guess is what I'm saying. But in many of these smaller towns, I, I don't know that they, they even send their, their people to, uh, uh, police training because they don't know the constitution. They don't know the laws. They don't know much of anything, but they're out there stopping people and, um, you know, arresting them very, uh, I don't know, on on very little evidence. And, and usually, uh, uh, they get thrown out. But, but I guess my point I'm getting to is that there should be some universal standard of knowledge for a cop, and they should have to improve. I, I see, uh, guys that have been in the force 20 years or more, who, who don't know what a, a, a trespass is, et cetera. It, it's, it's like they, they just get the badge and they stop learning. They don't wanna learn. Uh, talk about that, would you? 

Clark Neily : (19:48)
Well, again, I think that that police, like many other professions, span a whole spectrum. You'll, you'll run into some very smart and honorable lawyers, and you'll run into some lawyers who are not, that happens to be my profession. Same thing with police. You're run into some police who are very honorable and knowledgeable in the way that they do their job, and others who, um, are the opposite of those things. Um, on balance, uh, America has, uh, probably the lowest standards for hiring and training police of any developed country, certainly any western democracy. Um, and so I'm not saying that all departments have low standards for hiring police, but in general, in America, uh, very low standards in terms of education, um, in terms of experience, in terms of certification, et cetera. And so, um, and as you suggest, there's very little evidence that police, uh, receive meaningful, um, ongoing professional training on the job, especially in the area of, um, uh, you know, what the law covers. 

Clark Neily : (20:45)
And so, uh, again, it's a very hit or miss, uh, proposition about who you might be dealing with. You don't generally get to choose which police you're interacting with, and you may get a very good one, and you may get one that's not so good. But what you will always get in our country is a police officer who operates within an environment of near zero accountability, uh, in large measure, because the Supreme Court has invented out of whole cloth, this legal defense called qualified immunity, which effectively undermines, and in some cases just takes away that one avenue of accountability, which is to say, uh, filing a civil rights lawsuit against the officer. It's the only avenue of accountability that can be both initiated and pursued unilaterally by you, the victim of the police misconduct. The other two avenues of accountability, criminal prosecution of the police officer, or some kind of an internal accountability mechanism, those can only be pursued by fellow police officers or prosecutors deciding to do something on your behalf. 

Clark Neily : (21:46)
And that's a real problem. That's why a civil rights lawsuit is often the only really viable mechanism for accountability. And then when you have the Supreme Court saying, oh, okay, nice civil rights lawsuit you've got there, but see if you can get it past qualified immunity, that's when we have this huge problem, and it opens the door for police to go about their business with a mindset that I can do pretty much anything to you that I want to as a police officer, because what are you gonna do about it? Um, the answer, unfortunately, this day and age is not much. 

Reverend Becker: (22:15)
Yeah. Now, there are, um, I don't know, rumblings, uh, uh, investigations. I don't know to, to reevaluate the situation, uh, with, with the qualified immunity to, to tamp it down or I, I would hope, get rid of it. But there, there are at least some indications that, that there, that folks are studying this reevaluating, right? 

Clark Neily : (22:41)
Yes, that's true. Um, so, uh, one thing, maybe a bit of a ray of sunshine is that unlike other problems that we have, there are actually two different branches of government that could solve this problem. Qualified immunity is not a constitutional doctrine. Other words, it's not something that the Supreme Court has said that the Constitution requires. Instead, the Supreme Court has misread a congressionally enacted statute as including this defensive qualified immunity. And if the Supreme Court wanted to, it could simply correct that misreading tomorrow and say, you know what? We got this wrong. And by the way, they did get it wrong, no question about it. So the Supreme Court could absolutely grant a review of a case involving qualified immunity and say, Hey, you know what, um, when we invented this outta whole cloth, uh, 40 years ago, we just got it wrong, and we're gonna repeal it. 

Clark Neily : (23:31)
And we've, we've been working to urge the court to do that through our friend of the court briefs. But the other, uh, branch that could fix this is Congress. Congress enacted the law that the Supreme Court purports to interpret and to find the defense of qualified immunity in that law. Congress could pass a law again tomorrow that just says, Hey, you know what? There is no qualified immunity under federal civil rights law Section 1983. It doesn't exist. We're just clarifying that. Um, and part of the problem here is I think you've got this kind of cycle of finger pointing and buck passing where Congress hopes that the Supreme Court will take the hit, and then the Supreme Court takes co hopes, Congress will take the hit. And when I say take the hit, what I mean is this, the law enforcement lobby, by which I mean police, prosecutors, and prison guards, is probably the first or second strongest political interest group in the country. 

Clark Neily : (24:24)
They wield enormous influence, um, both in state and, uh, federal legislatures, uh, and, and to some extent over courts as well. And I would say that police in particular have almost, I would say, no higher priority than maintaining the policy of near zero accountability, uh, for police misconduct that we have in this country. And of course, the centerpiece of our national policy of near zero accountability for police is qualified immunity. And you better believe that they fight like tigers to prevent qualified immunity from being repealed or even dialed back. Uh, and so, uh, that's the, um, that's the challenge that we're up against, is essentially a completely unjust illegitimate doctrine that happens to be a high priority of one of the most politically influential interest groups in the entire country, namely the law enforcement lobby. 

Reverend Becker: (25:18)
Thank you. And yeah, the thin blue line, um, I I, I was a cop many years ago, a lifetime ago, and you know, we, we had period, the 38, um, had a baton, um, might've had a flashlight. That was it. And you see these guys now, they walk around, they, they look like silverback gorillas, a lot of them. They, they're, they're huge people to begin with, and they got this vest on 'em and all the tools of the trade all around them, uh, ready to go to war, basically on, in the city streets of America. And, and that's, uh, it just seems so, I don't know, unnecessary, uh, uh, we, we need dirty Harrys on the force. We need people who get stuff done. We certainly do, but we don't need all of 'em out there thinking they're dirty. Harry, that's just my theory on it. Um, you mentioned 40 years of, of, uh, qualified immunity. What do you happen to know what year it began? Um, 

Clark Neily : (26:18)
I do, uh, qualified immunity in its modern form was, uh, invented by the Supreme Court in a 1982 case called Harlow v Fitzgerald, which is the case in which the Supreme Court invented this idea that in order to, um, avoid the defense of qualified immunity, you as the civil rights plaintiff have to be able to demonstrate that the righted issue was clearly established, which is simply a judge term for, you have to identify a case from that jurisdiction with nearly identical facts to whatever it is that that happened to you that you're trying to sue about right now. And if it just so happens that that case doesn't exist, then you're out of luck because the cop will get qualified immunity. And I'll give you a concrete illustration from just a couple of years ago. This is a case that, uh, came up out of Tennessee. 

Clark Neily : (27:11)
Um, the, the plaintiffs and, and, and the friend of the court, including Cato, tried to get it to the Supreme Court unsuccessfully. Here's what happened, because the police pursuit case on foot, um, and they catch up with the suspect, he knows he is been caught. One of the officers has a dog. So the guy, uh, he sits down like this with his arms up in a position of surrender, five or 10 seconds go by while they just look at each other. Then the officer with the canine deploys the dog and tells him to attack the guy. The dog attacks seriously injures him. He requires, uh, emergency surgery for a bite underneath his armpit to save his life. He sues. Now, here's the good news. There is a case involving a police pursuit with a K nine that was then directed to attack the suspect already on the book. So that's, that's pretty good. But here's the thing. In the previous case, when the suspect gave up, he laid down with his arms at his side in a position of surrender. And you, Mr. Plaintiff, wait a minute, you were sitting down with your arms up in a position of surrender, and guess what, those are two different cases. So your, your right was not clearly established, and you lose, the officer gets qualified immunity. You would think, I'm making that up. I am not making that up. That was the actual case. 

Reverend Becker: (28:25)
Ah, and again, it demonstrates the, the non connectiveness. I don't know what, it just shows that there, there every case is treated differently. Uh, if they can make it, uh, lean in favor of law enforcement. I, I guess is the, the best way to say it. Um, I mean, , I I, I'm not ashamed to admit it. I've said it on the air many times. I've been busted 13 times for minor amounts of drugs. Um, and, and for whatever suspicion, I think most of it was, it was the years were 1960 to 70 something, and I had long hair, that was the main indicator that got me stopped, searched, et cetera. And, and I guess the, you know, there's, uh, I can't rehash that, I suppose, but it's just, it's what motivates me. Uh, you mentioned the 40 years, and it made me think it was about 40 years ago that the United States was once again, wanting to escalate the drug laws, wanting to go after them hippies, wanting to, you know, have more control over the lives of these witches and warlocks out there doing these products. 

Reverend Becker: (29:31)
And, and, um, uh, I, I guess what I'm just wanting to get to is that this is, this is, a lot of it is ancient history. It's like when they invented the slave laws or something, and eventually they came along and said, well, we're going to undo that. And I guess my whole point I'm wanting to get to is that those who believe in this policy of drug war, they know it's a sham. They know it's, it's just a means to fleece the public forever. And, and I, I don't know, man. I'm, I'm preaching again, your thoughts, uh, Mr. Clark Neely. 

Clark Neily : (30:07)
Well, you know, listen, I'm a libertarian, and one of the things that means is that I think it is immoral to use force against another person unless necessary to prevent them from harming somebody else. The idea that you could put another human being in a cage, uh, because they have chosen to put an intoxicate in their body that you don't think is a good idea, uh, flies in the face of that principle. Uh, I think that you can make a strong argument that there's a constitutional right to put intoxicants in your body. They were well aware of various intoxicants at the time in the founding. They used cannabis back then. They used opioids back then in the form of Loudon. There were no laws prohibiting people from, from using those kinds of, uh, of intoxicants. And so, um, I'm not here to make a strong claim that there should be a constitutional right to consume drugs. 

Clark Neily : (30:56)
What I'm saying instead is that if you look at the moral basis of the Declaration of Independence and the moral basis for our system of government, as articulated in the text of the Constitution, the idea that the government is empowered with the ability to do violence to people, simply because, um, they put something in their body that makes them feel a certain way, but not based on any harmful conduct or injury that they've caused to somebody else, I think is utterly antithetical to the values, the enlightenment values upon which this country, uh, was formed. And therefore, people who choose to go into a line of work where you have to do that, you have to do violence to peaceful people who haven't done anything morally wrong. It's a terrible position to put police in. And I suspect that it attracts the wrong kind of people in some ways to that profession. I would not want to have a job where I was charged with doing violence to people who hadn't hurt anybody, and who simply wanted to be left alone in order to, uh, uh, consume whatever plant or other substance, uh, made them feel better. So I, it's a problem. I don't support the drug war, uh, and I share your view that it's immoral and, uh, and futile. 

Reverend Becker: (32:03)
Thank you. Thank you very much. Um, well, I, I, Rico I hope you're out there. I, uh, hope you can hear me. I, I'm gonna, uh, ask you to play that file I sent you here in a little bit, but I, I wanna talk about, um, right now, uh, in the last couple of the days, uh, president Trump, uh, gave a speech. And I don't know, Biden, uh, has been speaking in various places, but, uh, uh, oh, I, I know what it is. The, uh, the Fox folks, uh, have been saying that, uh, when, uh, president Biden gave his, uh, state of the Union speech that he was on cocaine, that he, he was, uh, he was enhanced somehow that there's no way he's, he could be that way on that day when he, you know, has troubles on other days. He, he's got to be doing drugs. And, um, if, if Rico's ready, I, I want to hear something, share something else, uh, that, that Trump actually said, uh, they're in, uh, Las Vegas. Are you there, Rico? Please play that file. No. Okay. Well, uh, do All right. 

Donald Trump: (33:13)
You're not a trial that lasts 400 years like China. I was with President Xi. I said, do you have a drug problem? No, he didn't even know what I was talking about. He's got 1.4 billion people. I said, do you have a drug problem? He goes, no drug problem. I said, how do you do that? Essentially, he set the death penalty. We catch they call it quick trial. They have a trial and it's quick. 

Reverend Becker: (33:37)
Yeah, quick trial. Uh, they had the same sort of thing in the Philippines, uh, in Iran, uh, probably in China too. Take 'em out in the public square, chop off their heads. Um, but I, I guess you combine the two thoughts that the Fox folks saying that, uh, biden's on cocaine and Trump wanting to have a quick trial just kill him off. I guess I, I don't know. It's just another example of the hysteria that just grows around drugs. It's just, it's gotta be demanding more, more torture. More punishment. Right. 

Clark Neily : (34:10)
Well, there's certainly an irony in the fact that Trump is, um, at the same time he's advocating for a quick trial for suspected, and keep that, keep in mind, that's suspected, uh, drug dealers and a and a quick execution, the way they do it in China. Um, you know, he's crying bucket loads of tears because he didn't feel like he got a fair process when he was prosecuted in New York, uh, for, you know, the hush money payments in the campaign violation. So my response to that is, which is it? You like due process or you don't like due process? And apparently, as with so many things, when it's Donald Trump, the answer is, well, I like it just fine when I'm getting it. Um, and I insist upon it. But when it's somebody else, uh, you know, a quick Chinese style, uh, trial followed by a bullet to the back of the head will be plenty of process. 

Clark Neily : (34:56)
So, you know, I mean, he's a child, fundamentally, he doesn't really understand, I think our constitutional norms, our system of government. Um, and he just sort of views the world as one in which, as long as he's in charge, um, and he gets to implement whatever policies make sense to him, uh, everything will be fine. And then of course, we put the shoe on the foot of our president. Joe Biden, who, when he was in the Senate, was one of the most art drug warriors, uh, and, uh, proponents of draconian, um, federal gun laws, many of which I think are completely unconstitutional. And so today we find out that his own son Hunter, uh, was, was caught up in the net, uh, of, of largely unconstitutional federal drug and gun laws, and has been convicted on three charges arising, uh, out of those laws. So it seems that our, uh, our leaders are having a difficult time keeping their, uh, both their stories and their philosophies straight about what is, uh, optimal policy in this country. 

Clark Neily : (35:58)
Again, uh, my view is that the federal government is one of enumerated and therefore limited powers. It has almost no power, uh, to enact or enforce ordinary criminal laws like gun possession or drug possession that should be left to the states. And at the state level, there should be a compelling justification, uh, for forbidding somebody from engaging, uh, in non morally wrongful, non-harmful behavior. And certainly for imposing significant consequences, like putting that person in a cage. And the judiciary's decision to allow the government to do that on a whim instead of on the basis of a compelling justification, I think is, is an extraordinary affront to the principles of liberty and limited government that are both articulated in the text of the Constitution. And were the inspiration for the Declaration of Independence. It's on American at the end of the day. 

Reverend Becker: (36:49)
It is. And I, I see if I can phrase this up well enough to be understood, um, I, I, let's say I get in a hassle on a street corner with a cop, and he, he, he, he just puts his hand on my chest, you know, well get back. You don't, you shouldn't be here. If I were to do that to him, that's an assault. He would throw me on the ground and cuff me. And, and I guess what I'm saying is that's another example there of their qualified immunity right there, that, uh, um, e even if I have a friend who's filming that, it's not gonna be prosecuted or whatever, it's, it's not enough evidence to convict a cop where it's immediate enough evidence to convict me. And, and it just seems that the imbalance of justice is, is, is really, it's just a wide, uh, expense for the citizen and very little, uh, requirements or, or, or oversight for the, for the cops. Uh, can we talk about that? That just seems like that's unconstitutional. 

Clark Neily : (37:55)
Well, I think that's exactly right There. There are, um, the number of double standards where police are held to one very favorable level down here, we're held to a much higher standard. Up here is just jaw dropping. And again, I can tell you a true story from a qualified immunity case from just a couple of years ago. This one happened at a public swimming pool in Nebraska. Um, uh, this woman, um, named Kelsey was swimming with her daughters and her boyfriend, um, at the public pool. They were horsing around in the shallow end, somebody mised what was going on, and called the police and said, there might be a domestic violence incident. Police show up. They get, uh, the, the woman and her husband outta the pool, separate them to figure out what's going on. She's about five feet tall. She's wearing a bikini, not carrying any weapons. 

Clark Neily : (38:40)
There's no place for her to have a weapon. And, uh, while the police officer's talking to her, she notices that somebody's hassling her kids. And she says, Hey, I need to go take care of my kids, and then I'll come back and talk to you. And he says, no, you need to stay and talk to me. And she says, I will talk to you, but let me take care of my kids. She walks away from him, he comes up behind her, he gets her in a bear hug, lifts her up off the ground, turns her upside down, and slams her on the ground so hard that he knocks her unconscious and breaks her shoulder. When she sues, he asserts qualified immunity, which is granted, notwithstanding the fact that he violated her constitutional rights with excessive force. Why? Simply because that same case with those same facts doesn't happen to be on the books in that jurisdiction. 

Clark Neily : (39:23)
Thank goodness, by the way. And the second part of your point is well taken as well. That was absolutely a criminal act that police officer committed that was aggravated assault. And if anybody did that to a cop or just to another citizen, they would've been prosecuted. But he wasn't. Why? Because professional courtesy, prosecutors don't like to bring charges against police. Um, and the second double standard, besides the use of force one that you described, is inherent within qualified immunity. It is often said that for a mere citizen, like you or me, ignorance of the law is no excuse. So, for example, there was a guy in California who had a very good experience with medical cannabis. He was amazed at the result that it has. And he wanted to share that opportunity with others. And he knew that it was legal under state law, but he wasn't entirely clear whether it was okay or not okay to open a dispensary under federal law. 

Clark Neily : (40:19)
And so he called the local DEA and they gave him the runaround to the point where he thought he, that it was okay to do and it wasn't. So they watched it, they put him under surveillance while he opened up a dispensary in California, and then they busted him. They charged him with felony marijuana distribution under federal law. And he just didn't know, well, when it's a mere citizen and you don't know what the law is, you can still go to prison and he is going to prison for five years, but now in the shoes on the other foot, and it's a police officer saying, oh, I, I didn't know if it was okay to release my dog to, to, you know, attack the guy who was sitting there with his hands up. Well, guess what? When it's a cop, ignorance of the law is an excuse, and they will get qualified immunity because they didn't know what the law said. 

Clark Neily : (41:02)
Um, and that is, is such an unbelievable, glaring double standard. It's no wonder that public confidence in law enforcement has been plummeting over the past 10 or 20 years and has reached some of the lowest levels in the history of this country. And then you have police, I understand their morale is low too. They don't appreciate being disrespected. They don't appreciate that people don't recognize what a tough and dangerous job they have. But guess what, if you insist on being held to a much, much lower standard of accountability than the people you are policing, they are not going to respect you, and they shouldn't respect you. 

Reverend Becker: (41:39)
No. Uh, it's very difficult to even think of respecting them. I hear you again, Franz. We're, uh, speaking with attorney, uh, Clark Neely of the, uh, Cato Institute, uh, Clark, I, I, I, I think about, let's raise the level of inspection here a little bit. Um, the president, uh, or excuse me, the ex-President Trump is wanting to get his own type of unqualified immunity. I, I guess is the way to, to run rampant, to, to, to run ramp to rampage the world if he wants to, with no rep repercu repercussions whatsoever. And there, there are similar type situations. You touched on it a bit, where prosecutors don't really want to go after the cops 'cause they work with 'em. And they gotta have a, a, a relationship to go forward and, and the judges to the prosecutor sometimes give them leeway and yeah, okay, well, let's go ahead and convict, 'cause I'm with you, that kind of thing. But, but this idea that we should create a new scenario of unqualified immunity for the president. Um, talk on that and maybe the repercussions from that. 

Clark Neily : (42:52)
Yeah. I'm not really sure what, uh, Trump's is actually proposing when he says he wants to give complete immunity to police. He's the way the context seems to be that, you know, he wants to take off the, the handcuffs or whatever, whatever he thinks is holding police back so they can go after the criminals. Um, again, you know, this is coming from somebody who doesn't really seem to have any kind of understanding, um, of our nation's history, of our norms of what it was that, that, that caused the colonists to rebel against British tyranny. And by the way, a lot of what it was, um, was the abuse of law enforcement powers, uh, by, uh, British, uh, you know, uh, soldiers and, and others. And so, um, I confess that I'm not entirely sure, uh, what it is that he's proposing, but of course, um, completely, uh, eliminating any form of accountability and giving police not only civil immunity, but immunity from criminal charges would be an absolute disaster. 

Clark Neily : (43:45)
And it's, it's more than a little ironic to hear that coming from a president who spends so much of his time complaining, for example, about the manner in which the, uh, FBI raid was conducted on his house in Mar-a-Lago, you know, and oh, they had a authorization in the search warrant to use deadly force and blah, blah, blah, blah, blah. Well, you know, which is it, um, either, um, even the president of the United States or the former President of the United States is vulnerable to being victimized, uh, by power abusing law enforcement officials, which is what I thought the message was from, uh, his complaints and, and those of his supporters about the way in which the FBI rated Mar-a-Lago, or it's not a problem, but which is it. Right? And so the idea that any government official, uh, particularly government officials who are clothed not only with weapons, but also the power to arrest should be able to operate in an environment of actual zero accountability, zero ability to sue them, zero ability to prosecute them criminally, I think is, uh, insanity. 

Clark Neily : (44:50)
And, um, I don't think you have to be a rocket scientist to know what the founders of this country would think about a policy like that. Um, and I'm sure that any one of them could provide a tutorial that Donald Trump, uh, would, I don't know if he would understand it, that, but would hopefully at least clarify why we fought a war against a country, uh, that thought that it could send its officials here to America to keep us under their thumb and to be accountable to no one but the king. We did that dance, and we know how it ends. It ends in tears. 

Reverend Becker: (45:25)
Yes, it does. And tyranny or ends the tyranny. Yes, sir. Uh, Clark, I, I, I, I, I, sometimes I'm just, I'm buffaloed as to how to proceed because I want to make progress. And yet, as we've been talking about, there are all these constraints and roadblocks set in place to, uh, uh, prevent that said progress. Hey, here in Texas, we had a, a situation back when, where we could actually put a, um, um, a referendum on the ballot and vote for it. And they started talking about doing that with marijuana. And the, the legislature says, we're gonna take away the ability of this state to have a referendum. And, and so we are among the last of the, well, not yet marijuana states. Um, but I, I guess what I'm trying to say is that politicians can be just downright evil. I, I don't know how else to say it. They, in their need to punish the, the populace. And, and I, I, I, I guess at the heart of it, I'm still trying to figure out what gave them the right to penalize us in the first place. I know with alcohol, they had A-A-A-A-A-A, um, a constitution, constitutional amendment, thank you. And, and then another one to undo it. But with drugs, they just kind of said, we're gonna just do this. And, um, let's talk about that. The, just the hypocrisy of it all just, just offends me your thought. 

Clark Neily : (46:57)
No, I'm with you. Listen, I mean, um, uh, first of all, um, I think we all know that plenty of people, um, who work for the government who are in the legislative branch, even in law enforcement, uh, routinely violate drug laws themselves. Um, I think, I don't know who remembers this, but there was a bag of cocaine that was found in the west wing of the White House. Yeah. Uh, last year. And of course, you know, with all of the surveillance and law enforcement resources they have available, they just couldn't figure out whose cocaine that was. I don't believe that for a minute. But, um, and, and there is a hypocrisy here. I mean, another example is, uh, we also know that there's plenty of drug use and even drug dealing going on in the dormitories of Ivy League universities. When's the last time you heard of a police raid at a Harvard dormitory? 

Clark Neily : (47:42)
Right. You never heard of one. Um, because we know who those kids are, right? And we know that, uh, enforcing drug laws even handedly in this country would cause a lot of people who right now, um, don't have to worry about them, and their kids don't have to worry about them. Um, suddenly they'd be taking a fresh look, uh, at those drug laws. But I wanna, I wanna pick up on a kind of a political point that you made and suggests something somewhat unconventional that I actually think is very much, um, a root problem here. And that is this, the founders envisioned a particular political institution as playing an enormous role in our system of government that if it were still functioning properly, would protect us from these very laws. I think very effectively, and I refer here to the citizen jury and specifically the criminal jury, the founders viewed a criminal jury as first and foremost an injustice preventing institution. 

Clark Neily : (48:47)
Um, and you can go online and find stories of grand juries, including one in Tucson, Arizona a few years ago that simply refused to indict victimless drug crimes. That is exactly the way the jury was understood, and that, that it would, in some cases, function that way. You can also find cases where, uh, reg, like criminal juries, we call petit juries, juries that preside over over trial where they refuse to convict in drug crimes because nobody was hurt and they don't think the person did anything wrong. That is exactly the way that juries were meant to function. And they were designed to function that way in our system of government. And one of the most significant developments of the last century, in my view, was the government success in first neutering and second rendering practically irrelevant, the criminal jury. How By getting nearly every defendant who is prosecuted in our system to voluntarily, and those are scare quotes, voluntarily waive their right to a trial and simply agree, agree to plead guilty. 

Clark Neily : (49:57)
So coercive plea bargaining has essentially destroyed this civic institution of the criminal jury that would otherwise interpose itself between us and unjust laws like drug prohibition. It has been practically destroyed and eliminated from the scene. And if we had a robust, constitutionally valid, uh, uh, criminal justice system that featured the criminal jury as the, as the primary mechanism for adjudicating criminal charges, many of the problems that you and I have been discussing would, if not, they wouldn't disappear necessarily, but they would be minimized beyond what you can imagine. And it's the practical elimination of the criminal jury that is both described and prescribed by the text of the Constitution, uh, that has, I think, brought us to a point where the government can reliably enforce laws that are demonstrably unjust and immoral. And, and I think that was the absolute key move, um, in that whole process. And that's why we were exposed to these laws, um, and having so much trouble pushing back. 

Reverend Becker: (51:02)
Thank you. Um, again, friends, that's, uh, attorney Clark, uh, Neely with the Cato Institute, uh, Clark, I, um, got two points I want to get to here. We're starting to run outta time. Yep. Uh, one is, uh, what you were speaking of a a, a frequent guest. My attorney, uh, comes on the show quite often. Uh, clay Conrad wrote a book on jury nullification, which needs to be more exposed, more widely shared, more recognized, uh, utilized, uh, and, and then I was gonna say, but one other area of, uh, well immunity, and that's, that's the Supreme Court. Apparently there's no oversight over them at all. And, and, uh, we have a couple of three of them that are starting to look like they're doing criminal type things. And, and we have no means to control them. They, can we talk about that, please? 

Clark Neily : (51:53)
Well, I'm gonna gently push back on that. Um, there, there is of course an impeachment, uh, process that is, um, available through the Constitution. And so, um, you know, we have, unfortunately a highly dysfunctional Congress right now, but there is an o oversight mechanism, and you can impeach a Supreme Court justice. It has happened once before. Uh, and so that's a possibility. Um, you know, part of the problem is that ultimately, you know, the buck has to stop somewhere. You can't have an infinite, uh, you know, layer of, of, uh, appellate review. So somebody has to have the last word. But I'm gonna go back to what I was just talking about and say this, um, the idea that the primary or dominant figure in either a courtroom or a system writ large, like the criminal justice system was meant to be, the judge, is a very modern and idiosyncratic innovation at the time of the founding. 

Clark Neily : (52:49)
And throughout most of our history, the most important people in any courtroom were the jurors. They were there to decide the result of the case, and they weren't simply there to find facts. They were there to decide what would be just, or unjust, um, and to prevent the government, uh, from violating people's rights, enforcing criminal laws, uh, against morally blameless activity, et cetera. So here's my point. If we had a well-functioning system of government that was constitutionally faithful, juries would be making more decisions, and judges would be making relatively fewer decisions, and we would be leaving a lot less to the, the justices of the Supreme Court and deciding those questions for ourselves with citizen juries. But we've allowed them to be essentially excluded from the process. And that means that judges and specifically Supreme Court justices end up with far more on their plate than the Constitution meant for them to have. 

Reverend Becker: (53:41)
Wow. Okay. Um, amazing thoughts and, and ideas. I, I do appreciate you being with us. Uh, well, again, friends, we've been speaking with Mr. Clark Neely. He's an attorney. He works with the Cato Institute, and, uh, he's got a lot of great articles out there. I urge you to go to their website, which of course is, uh, uh, cato.org. Am I got that right? Yep. Yep. And his name is spelled Neely, N-E-I-L-Y. Clark, thank you so much. 

Clark Neily : (54:08)
It's been a pleasure, Dean. Thanks for having me on. 

Reverend Becker: (54:10)
Yes, sir. Uh, again, friends, I, I, I want to speak to you, you know, the truth of this drug war, you've been, I don't know, um, you've had it pounded in your head to just keep quiet and, and you won't get in trouble if you don't, uh, bring attention to yourself. I've been bringing attention to myself for 25 years. No one's ever messed with me. Never. And I guess the whole point of it is I know the truth. I know how to speak the truth. And, uh, they just don't want me, uh, you know, in a cage because of what I, I don't know. I don't think they want me alive would probably be a better thing. But the point I'm getting at is you can speak up, at least write a, a, a a email to your congressman or call 'em up or visit 'em, go to their office face to face. 

Reverend Becker: (54:56)
Tell 'em we know the drug war is a failure. It's never gonna work. It's time to end it. Begin the process. And, and it is working. It's slow grace glacially moving around the world. But, uh, the point of it is legalization is the answer, the only real answer. It's the only way we will actually control these drugs will quit funding the terrorists, the cartels, the gangs that wanna attract our children to lives of crime and addiction. And we'll stop 99% of the overdose deaths 'cause people will know what they're taking. Um, how we doing on time there, Rico? No. Okay. I tell you what folks, I I'm gonna just wrap it up with this thought that you control the future. Your, your malaise, your unwillingness to speak up, uh, is going to ensure that your children or maybe your grandchildren or your great-grandchildren will be in one of those cages because kids are always going to do drugs. We're never gonna stop 'em. And we need to make it where it's safer, where it won't kill them as handily as it does now. And once again, I remind you that because of prohibition, you don't know what's in that bag. And I urge you to please be careful and always remember that euphoria is a blessing, not a crime. 

Roark/Announcer: (56:11)
The proceeding program Moral High Ground is sponsored by www.drugtruth.net publishers of to end the War on Drugs and Forever, Salem, the American Inquisition, written by Reverend FD Becker.