Democrats seem surprised that Rep. Tom McClintock (R–Calif.), a libertarian-leaning conservative, favors the abolition of qualified immunity, a legal doctrine that often shields police officers from liability for violating people’s constitutional rights. The Democrat opposing McClintock in this year’s election, Brynne Kennedy, claims his position on qualified immunity, which she calls “a welcome surprise,” implies that he should support the rest of her agenda, including such completely unrelated issues as Medicare, Social Security, and price controls for prescription drugs. If McClintock really wants to prove his bipartisanship, she says, he should agree with her about those issues too.
Given McClintock’s history and ideology, Democrats should not have been surprised by his position on qualified immunity, and Kennedy’s argument implies that true bipartisanship requires Republicans to agree with Democrats about everything. Her reaction to his stance, whether sincere or not, reflects a broader obstacle to building a trans-ideological coalition for police reform in the wake of George Floyd’s death and the ensuing protests. Many left-leaning supporters of that cause either do not understand or willfully ignore the perspective of people like McClintock, and that incomprehension or misrepresentation risks alienating potential allies who disagree with them about a lot of other things.
As the Raleigh News & Observer noted, McClintock is not a newcomer to police reform, which he supported as a state legislator. Back in 2007, McClintock was outraged by the California Supreme Court’s decision in Copley Press v. Superior Court, which shielded police disciplinary records from public view. “The Copley decision basically said that disciplinary proceedings against police officers are none of the public’s business, even if conducted by a civil service commission under all due process considerations and even if the charges are proven,” he said. “In short, once a citizen complains about the misuse of police power, even though the complaint is found to be entirely true, the public has no right to know. That is nuts.”
Nor is McClintock a milquetoast when it comes to police invasions of people’s homes. Here is what he had to say about no-knock raids this week: “No-knock warrants have proven to be lethal to citizens and police officers, for an obvious reason. The invasion of a person’s home is one of the most terrifying powers government possesses. Every person in a free society has the right to take arms against an intruder in their homes, and the authority of the police to make such an intrusion has to be announced before it takes place. To do otherwise places every one of us in mortal peril.”
Regarding qualified immunity specifically, the News & Observer notes, “libertarians have long been clamoring for change on the issue.” The paper mentions the Institute for Justice, which for years has been backing cases aimed at restricting or eliminating qualified immunity. Conservatives such as Supreme Court Justice Clarence Thomas and 5th Circuit Judge Don Willett, a Trump appointee, also have criticized the doctrine.
McClintock’s opposition to qualified immunity makes sense if you understand where he is coming from. During his 2008 House campaign, my former Reason colleague Dave Weigel observed, McClintock “saw the real political split in this country (and everywhere else) as between ‘authoritarians and libertarians,’ with authoritarians in the saddle now but libertarians coming on strong.” McClintock also told Weigel, “I am concerned with civil liberties in this country, and with warrantless surveillance of Americans.”
McClintock has been an outspoken critic of the PATRIOT Act and the Foreign Intelligence Surveillance Act, and he supported amnesty for National Security Agency whistleblower Edward Snowden. “I think it would be best if the American government granted him amnesty to get him back to America where he can answer questions without the threat of prosecution,” McClintock told a Sacramento TV station in 2013. “We have some very good laws against sharing secrets, and he broke those laws. On the other hand, he broke them for a very good reason: because those laws were being used in direct contravention of our Fourth Amendment rights as Americans.”
McClintock also has broken with most of his Republican colleagues in backing marijuana reform. He was an early supporter of legislation aimed at stopping federal raids on medical marijuana dispensaries and repealing the national ban on cannabis as it relates to conduct that is allowed by state law. McClintock opposed federal marijuana prohibition years before many prominent Democrats decided it was safe or politically expedient to do so. That position reflects not just a libertarian sensibility but a principled defense of federalism, a cause that many conservatives abandon when it proves inconvenient.
The fact that progressives can find common ground with McClintock on some issues, of course, hardly means he is about to embrace the rest of their agenda. Likewise with other conservatives, libertarians, and moderates, whether they have long supported police reform or are newly sympathetic because of the problems highlighted by George Floyd’s death and other recent travesties.
It may seem obvious that you cannot build a coalition on an issue like police reform if you insist that your allies agree with you about everything or if you mistakenly treat them as Johnny-come-latelies. But progressives are making both of those mistakes.
Instead of supporting the four-page, stand-alone qualified immunity bill that Rep. Justin Amash (L–Mich.) introduced, House Democrats produced a 134-page bill that addresses qualified immunity but also includes several provisions Republicans are likely to oppose, including increased Justice Department scrutiny of local law enforcement polices and practices, government-backed racial profiling lawsuits, “training on racial bias” for federal law enforcement agents, and financial penalties for states that fail to ban chokeholds or are deficient in reporting data on traffic and pedestrian stops, body searches, and the use of force.
There is a huge gap between the Democrats’ grab bag of proposals—many of which are worthy ideas—and the reforms that Republicans seem inclined to support. “The fact that it has no Republican sponsors, the fact that there was no effort to contact any of us to have us weigh in on the legislation, suggests it’s designed to be a message piece, as opposed to a real piece of legislation,” says Sen. Mitt Romney (R–Utah), who plans to introduce a bipartisan police reform bill. “We should vote on each proposal separately,” Amash argues. “Massive bills with dozens of topics aren’t serious efforts to change law. They’re messaging bills with no expectation of getting signed. They cram in so much that they’re never written well or reviewed carefully.”
The “defund police” slogan adopted by many activists (but wisely eschewed by most Democrats in Congress) poses similar problems. Some people who use it mean it literally, while others have in mind a restructuring of police departments and/or the transfer of money from them to social programs. Whatever the intent, the slogan is bound to alienate people who would otherwise be inclined to support reforms aimed at preventing police from abusing their powers and holding them accountable when they do. The fact that Donald Trump has latched onto the meme as a way of discrediting Democratic reformers is not a good sign. While “defund police” may appeal to some progressives and libertarians, it is not a message that will help attract broad public support for reforms.
It is also a strategic mistake for progressive reformers to act as if they own this issue when many people who don’t agree with them on other subjects have been fighting this battle for a long time. As a libertarian who has been covering police abuse, the drug war, criminal justice reform, and civil liberties for more than three decades, I find that attitude irritating, and I’m sure other nonprogressives do as well. But this is not about personal pique; it’s about how people with different ideological perspectives can come together on this issue now and avoid squandering an opportunity, perhaps the best we’ve had in many years, to do some good.
David Menschel, a criminal defense attorney, activist, and documentarian who runs the Vital Projects Fund, describes himself as a “left-winger,” but he recognizes that progressives and libertarians are natural allies on this issue. He poses some provocative questions to libertarians about whether they are prepared to support social programs aimed at performing functions currently handled by the police. While that is a good conversation to have, it is not directly relevant to seizing this moment, which requires not only getting along with people who have different political views but also compromising with grudging supporters of reform who may be willing to back specific, concrete proposals to address police abuse that fall far short of the fundamental restructuring Menschel has in mind.
Much of the action on police reform is happening on the local and state levels, as you would expect given our federalist system of government. But to the extent that Congress can address the issue, we should be thinking about changes that might gain the support of not only Tom McClintock and Mitt Romney but also Senate Majority Leader Mitch McConnell (R–Ky.), who has not heretofore distinguished himself as a criminal justice reformer but lately has been making noises about racial disparities in law enforcement. I’m not sure how much change someone like McConnell can stomach, but reform-minded legislators should find out before it’s too late.