The “FinCen files” story reveals: getting caught doesn’t stop banks from taking dirty money. It may even encourage them
On December 11, 2012, U.S. Justice Department officials called a press conference in Brooklyn. The key players were once and future bank lawyer Lanny Breuer (disguised at the time as Barack Obama’s Assistant Attorney General in charge of the DOJ’s Criminal Division), and Loretta Lynch, the U.S. Attorney for the Eastern District of New York, and future Attorney General. The duo revealed that HSBC, the largest bank in Europe, had agreed to a $1.9 billion settlement for years of money-laundering offenses.
An alphabet soup of regulatory agencies was represented that day, from the Justice Department, to Immigration and Customs Enforcement (ICE), the U.S. Treasury, the New York County District Attorney, and the Office of the Comptroller of the Currency, among others.
The regulators outlined a slew of admissions, with HSBC’s headline offense being the laundering of $881 million for Central and South American drug outfits, including the infamous Sinaloa cartel.
The laundering was so brazen, regulators said, the bank’s Mexican subsidiary had developed “specially shaped boxes” for cartels to pack with cash and slide through teller windows. The seemingly massive fine reflected serious offenses, including violations of the Bank Secrecy Act (BSA), the International Emergency Economic Powers Act (IEEPA) and the Trading with the Enemy Act (TWEA).
The next years would follow up with a flurry of similar settlements extracting sizable-sounding fees from other transnational banks for laundering money on behalf of terrorists, sanctioned businesses, mobsters, drug dealers, and other malefactors. Firms like JP Morgan Chase ($1.7 billion), Standard Chartered ($300 million), and Deutsche Bank ($258 million) were soon announcing settlements either for laundering, sanctions violations, or both.
Even seasoned financial reporters accustomed to seeing soft-touch settlements scratched their heads at some of the deals. In the case of HSBC, the stiffest penalty doled out to any individual for the biggest drug-money-laundering case in history — during which time HSBC had become the “preferred financial institution” of drug traffickers, according to the Justice Department — involved an agreement to “partially defer bonus compensation for its most senior executives.” If bankers can’t get time for washing money for people who put torture videos on the internet, what can they get time for?
When I did a story on the case in early 2013, I found the HSBC settlement was the latest step in a dizzying, decade-plus cycle of offenses and ignored reprimands, involving multiple regulatory bodies. The number of times HSBC had blown off compliance orders seemed too absurd to be real. In one stretch between 2005 and 2006, the bank received (and, apparently, ignored) 30 formal warnings just from the Office of the Comptroller of the Currency.
Prosecutors insisted the deferred prosecution settlements slapped on companies like HSBC, Standard Chartered, and JP Morgan Chase were tougher than jail terms. The deals would place banks in a permanent state of quasi-arrest, with regulators granted enormous supervisory power and serious charges pre-filed and hanging over the firms going forward.
As one federal investigator put it to me back then, “This way, we have them by the short ones.”
Fast-forward eight years. On September 20th, a combination of Buzzfeed and the International Consortium of Investigative Journalists (ICIJ) published the details of a major document leak highlighting a decade of money-laundering incidents, involving hundreds of billions of dollars and a number of the world’s biggest banks. The leak centered on a cache of over two thousand “suspicious activity reports,” or SARs, filed by those banks to the Financial Crimes Enforcement Network, a regulatory arm of the U.S. Treasury.
Though the ICIJ was also behind the release of the Panama Papers, investigative editor Michael Hudson told me he believes the FinCen leak is “the most important” project they’ve worked on. Instead of being about one group of actors, or one jurisdiction, these revelations span the banking sector as a whole.
“It shows the widest set of problems,” he says.
The story has been covered around the world, but some press accounts particularly here in the States seem to have missed the punchline, i.e. that the banks figuring most prominently in the FinCen leak are exactly the same institutions paraded before the public as subjects of “message-sending” punishments back in 2012-2014.
HSBC, for instance, continued to take in questionable money through 2012 and beyond, including $30 million from Hong Kong accounts related to a Ponzi scheme called World Capital Market. WCM was suspected of bilking “investors” — most of them ordinary people scraping together five or ten thousand dollars and throwing them at false promises of guaranteed returns — of nearly $80 million.
The leaked records show HSBC flagged the account as suspicious as early as 2013, but continued to take the money from this and a wide variety of other dicey accounts. Although regulators saw all of this information, the Department of Justice not only didn’t take action, it announced in 2017 that HSBC had “lived up to all of its commitments” and agreed to file a motion to lift the deferred prosecution deal.
A similar pattern held with JP Morgan Chase, which in 2013 was hit with a cease and desist order over “systemic deficiencies” in its money-laundering controls, yet continued to do business with rogue accounts, including some infamous and obvious ones. To give some sense of the sums involved, JPM made roughly a half-billion dollars just servicing the accounts for con artist Bernie Madoff.
As far back as 2006, JP Morgan Chase knew enough to pull its own money out of investments in hedge funds tied to Madoff, but never told investors, and continued to manage his accounts for years. The bank ultimately settled with the government over the Madoff episode in 2014, after the 2013 “cease and desist” order, while continuing to manage money for other malodorous accounts — including, according to the ICIJ, more than $1 billion for Jho Low, the fugitive financier behind Malaysia’s infamous 1MDB fund.
In a detail that should infuriate the #Resistance crowd, Jamie Dimon’s bank also continued to do business in huge sums for former Trump campaign manager Paul Manafort even after Manafort stepped down in scandal, and even after the bank flagged Manafort’s accounts. From the ICIJ report:
JPMorgan also processed more than $50 million in payments over a decade, the records show, for Paul Manafort, the former campaign manager for President Donald Trump. The bank shuttled at least $6.9 million in Manafort transactions in the 14 months after he resigned from the campaign amid a swirl of money laundering and corruption allegations spawning from his work with a pro-Russian political party in Ukraine.
“If you look at the cases where they tried to punish and deter the big banks, the headline-making efforts just haven’t worked,” says Hudson. “In the aftermath of these supposed crackdowns, the banks continued to move money in staggering amounts, for powerful and dangerous characters.”
“The big takeaway is, the system just doesn’t work,” adds former federal prosecutor Paul Pelletier. “I think these SARs represent about $2 trillion in suspicious transactions, and nearly all of it went through. And this is just a small fraction of the overall amount of money.”
According to Hudson, the FinCen files represent about two-tenths of one percent of the suspicious activity reports filed between 2011 and 2017.
In the aftermath of the HSBC deal in 2012, money laundering cases began to attract a fair amount of press attention. HSBC’s case even became one of the subjects for Oscar-winning documentarian Alex Gibney’s “Dirty Money” series:
At the time, there was an expectation that these stories could be told in the past tense, because firms like HSBC had been busted. The FinCen leaks show the opposite. The settlements may actually have been an accelerant, allowing for the appearance of regulation, while alerting banks to broader weaknesses that encouraged more brazen behavior going forward. We may have to change the way we think about “dirty money,” from being an outside contaminant, to endemic to the system at its core.
Public legend about movement of ill-gotten cash usually centers on crooks sitting under ceiling fans in tropical locales, receiving mysterious wire transfers in places outside the physical reach of American regulators, like Vanuatu, Panama, or the British Virgin Islands. The FinCen leaks make clear the real hub of money laundering is in what Hudson calls the “choke point” of New York, where the world’s largest financial institutions have streamlined the process of moving shady money.
SARs don’t always indicate a crime. They’re the regulatory equivalent of a call to police to check something out that doesn’t add up. Bank monitors who compile them might be spotting something in their account rolls like high numbers of cash transactions, large numbers of wire transfers to a country where the customer doesn’t do business, etc.
The requirement to produce these reports creates a cat-and-mouse game for banks. Every time compliance officers discover derogatory information that leads to an account being closed, it’s a direct hit to a bank’s revenues. On the other hand, to keep regulators off their backs, banks have to be seen to be doing all they can to sniff out illegalities. Therefore there’s an incentive for banks to cycle through creative ways of looking like they’re engaging in compliance, without actually doing so.
A bank might create sizable AML departments, but pad them with inexperienced, entry-level employees incapable of spotting problems (see here for the HSBC example I wrote about years ago). A firm may hire a top-of-the-line department head, but not give him or her real resources. Required hiring boxes may be checked, but the company may non-report or under-report problems. Companies may even generate huge numbers of suspicious activity reports while leaving key data like names or addresses missing.
In a different scenario, reports are filed too late for action to be taken. SARs are supposed to be filed within 30 days, for instance, but the FinCen documents were filed to the government an average of 166 days after the initial detection of a potential problem.
In another stalling method, banks informally agree not to close suspicious accounts until a certain number of SARs have accrued. When the Senate Permanent Subcommittee on Investigations looked at HSBC in 2012, for instance, they found internal emails from bank executives suggesting that HSBC’s Mexico operations had settled on a policy of not closing accounts until four SARs had been filed.
When the company’s chief compliance officer found out about its subsidiary HMEX’s standard, he wrote, in a bemused tone, “4 SARs seems awfully indulgent, even by local standards.” HMEX later cut the standard to two SARs, which seems to be the exception rather than the rule. In the FinCen leaks, companies are seen repeatedly filing reports about the same actor, each time implying they’ve dug just enough to write a report, but never quite enough to actually close the account.
Of course, in banking, size matters. “Maybe the bank looks at a wire transfer and says, ‘This smells.’ Do that in a $12,000 transaction, and they’ll kick you out of the bank,” says Pelletier. “Do it at $12 million, and they’ll let it go.”
What’s unique about this leak it shows bad behavior the banks actually reported. As one former investigator put it this week, “This is the stuff they actually have a suspicious activity report for!” That banks keep taking the money is bad, but the fact that regulators keep receiving the reports and letting shady transactions slide makes the dirty-money problem a bizarre symbiosis of private rapaciousness and (at best) governmental apathy.
While credit card companies are able to detect fraud and banks are able to detect suspicious activity thanks to technological advances, the government lacks the same capability, in part perhaps because the reporting system is not automated. Since it’s a crime to leak a “SAR” — you “literally have to steal one” to make one public, as one former investigator puts it — they’ve rarely been seen by the public. The ICIJ has now put them on display:
The government receives millions of these written reports, which often appear to reflect a fair amount of person-hours of research by the bank. However, the government lacks what one investigator described to me as an “AI-type test” for passive review of this material, and lacks the personnel to go through it all individually.
At best, a federal investigator may go through the SAR database to check an individual or company already targeted in another probe. This particular batch of SARs seems to have been gathered as part of a congressional investigation into Russian interference, for instance. The rest of the reports are fated to be memory-holed by overwhelmed regulators.
What do you get in this seeming worst-case scenario, when banks pretend to monitor, and regulators pretend to collect the monitoring? A short list of some of the messes found in the FinCen docs:
— In one ridiculous case, Deutsche Bank’s New York branch processed $2.6 billion and $700 million, respectively, for a pair of companies called Ergoinvest and Chadborg trade. Both companies declared annual incomes of $35,000, and the statements for both firms bear the signature of the same obscure dentist in Belgium, who claims he doesn’t even own a car. Yet the money kept rolling through! The companies earned British registrations through “formation agencies” located in the Baltics, where investigators have found a rat’s nest of problems in recent years. Deutsche Bank, the originator of 62% of the leaked SARs (perhaps reflecting the focus of the Russia investigation that produced the FinCen docs), moved at least $150 billion just from one small Tallinn-based bank, Danske Estonia, for instance.
— Ukrainian Ihor Kolomoisky was the subject of raids by federal investigators earlier this summer, and has been profiled in colorful news reports that read like movie scripts. In one piece, he allegedly dropped crayfish meat by remote control into a tank to be devoured by sharks in the middle of a meeting, as a Dr. Evil-style intimidation tactic.
The crux of accusations by prosecutors is that Kolomoisky employed gangland tactics at home (including using “armed goons” to take over an oil company), then funneled the money to places like the States, to be invested in legit vehicles like real estate. This is exactly the kind of person the SAR process is designed to identify and disqualify quickly. Nonetheless, the FinCen files show Deutsche Bank, which had entered into a settlement deal in 2015 for moving over $11 billion in suspicious transactions, moved at least $240 million for a Kolomoisky-connected account at exactly that time, between 2015 and 2016.
— Even as Russian aluminum baron Oleg Deripaska garnered enormous media attention in recent years, including during the Russiagate furor, he continued to move money freely through the American banking system. The FinCen files contain a total of 58 SARs related to Deripaska, issued between 1997 and 2017, covering an amazing $12.41 billion in transactions. The Bank of New York Mellon flagged 16 transactions involving a Deripaska subsidiary company called Mallow Capital, but apparently kept doing business. To quote the ICIJ, “Mellon said Mallow Capital appeared to be a shell company operating in a high-risk area with no known legitimate business purpose. In 2012 and 2013, Mallow sent itself nearly $420 million using different British Virgin Islands addresses and different banks…”
The FinCen leaks highlight two major weaknesses of the regulatory system. One is the longstanding absence of a requirement that anyone opening a U.S. account name a “beneficial owner,” i.e. who is really controlling the account. The other is correspondent banking. Banks in the U.S. are required to “know your customer” in addition to monitoring and reporting domestic accounts. Still, any foreign bank with a license may open “correspondent” accounts in those same regulated Western banks. A lot of the worst instances catalogued in the FinCen leaks involve these correspondent accounts, opened in Asia, Eastern Europe, the Middle East, etc.
In the long run, the regulatory system ends up serving as a de facto partner for banks that all but admit they’re taking in money from Ponzi schemers, mobsters, drug lords, and rogue states.
This is a “feature, not a bug” problem. Going back to the years after the crash, regulators spoke often about the need to carefully construct settlements, so that even repeat offenders might remain viable.
In late 2012, for instance, at a press conference announcing a market manipulation settlement for the Swiss Bank UBS, Breuer told reporters, “Our goal here is not to destroy a major financial institution.”
“This is a bank that has broken the law before,” a reporter said that day. “So why not be tougher?”
“I don’t know what tougher means,” Breuer answered.
Some time later, then-Attorney General Eric Holder gave a video message on the theme, “There is no such thing as Too Big to Jail.” While insisting “no one is above the law,” Holder pointed out that some criminal charges carried automatic regulatory penalties that “may even trigger the loss of that institution’s charter.” This, he implied, is not always a good thing.
This issue had come up at the HSBC press conference the previous year, when Breuer said, “had the US authorities decided to press criminal charges, HSBC would almost certainly have lost its banking license in the US.”
For that reason, Holder insisted, regulators often “must go the extra mile to coordinate closely with the regulators who oversee these institutions’ day-to-day operations.”
Translated, this meant the Justice Department was crafting punishments to make sure banks landed on their feet and remained functional as American businesses, even in the face of public reprimand.
A typical settlement involved a fine that sounded large but was really equal to months or weeks of profit, with penalties in some cases also being deductible, so taxpayers could share in the joys of paying a bank’s debt to society. In other words, settlements were designed not to hurt too much, but just the right amount.
Even a “record” harsh settlement doled out to the French bank BNP-Paribas in 2014 for sanctions violations, which included a rare plea to a real criminal charge in addition to a $9 billion penalty, only incurred a one-year exile from U.S. dollar transactions. Even when throwing the proverbial book at firms, regulators made sure to pave clear roads to redemption.
This was not necessarily a bad thing. There’s no reason why anyone should want systemically-important institutions (who are often major employers) to be wiped off the face of the earth, willy-nilly. The problem is that if you completely remove the threat of a lost charter, it signals to everyone that regulators will tolerate even open repeat violations. In this light, even a “tough” public punishment becomes a license to steal.
Hudson, for instance, notes that announcements of many of the biggest money laundering settlements involving the firms in the FinCen files were accompanied by jumps in the company’s share prices. HSBC’s shares rose in London and Hong Kong after the 2012 settlement, and even BNP’s criminal plea deal prompted a 3.6% jump in share price. Markets see the settlements as seals of approval going forward, and “send the signal that the regulators are looking to do a deal,” Hudson says.
The irony of all this is that the Trump era has seen much gnashing of teeth over America’s withdrawal from global bureaucracies like the Paris Agreement, the “Open Skies” arms control treaty, the Iran deal, and other conventions. Meanwhile, in the one place we want an isolationist-style wall, around the Federal Reserve-connected American banking system, barriers are wearing away. Only in crime, it seems, is America becoming more global in outlook.
“The US has imposed sanctions on the chief prosecutor of the international criminal court, Fatou Bensouda, in the latest of a series of unilateral and radical foreign policy moves.
Announcing the sanctions, the secretary of state, Mike Pompeo, did not give any specific reasons for the move other than to say the ICC “continues to target Americans” and that Bensouda was “materially assisting” that alleged effort.
He also announced sanctions against Phakiso Mochochoko, the ICC’s director of jurisdiction, complementary and cooperation division.
The US Treasury issued a statement saying Bensouda and Mochochoko had been deemed “specially designated nationals”, grouping them alongside terrorists and narcotics traffickers, blocking their assets and prohibited US citizens from having any dealings with them.”
We are trapped in an abusive relationship. When we finally have enough, our abuser comes after us with flowers and apologies, promising never to do it again.
Police take the knee. NASCAR and the U.S. Marine Corps ban the display of the Confederate flag. Nancy Pelosi uses a kente scarf as a political prop. Joe Biden, one of the driving forces behind militarized police, the massive expansion of mass incarceration and the doubling and tripling of sentences, speaks at George Floyd’s funeral. The National Football League apologizes for its insensitivity to racism, although no teams appear to be negotiating with Colin Kaepernick.
The mayor of Washington D.C., Muriel Bower, had the words “Black Lives Matter” painted in 35-foot-tall letters on a street near the White House but has also proposed a $45 million increase in the police budget and the construction of a $500 million new jail. The press, which does not confront corporate power and rarely covers the poor, rendering them and their communities invisible, engages in circular firing squads, sacking or admonishing editors and journalists for racially insensitive thoughtcrimes, to advertise its commitment to people of color.
“The public displays of solidarity are, as in the past, smoke and mirrors, a pantomime of faux anguish and empathy by bankrupt ruling elites.”
Once again, we see proposed legislation to mandate police reform—more body cameras, consent decrees, revised use-of-force policies, banning chokeholds, civilian review boards, requiring officers to intervene when they see misconduct, banning no-knock search warrants, more training in de-escalation tactics, a requirement by law enforcement agencies to report use-of-force data, nationally enforced standards for police training and greater diversity—proposals made, and in several cases adopted in the wake of numerous other police murders, including those of Eric Garner, Michael Brown and Philando Castile. The Minneapolis Police Department, for example, established a duty to intervene requirement by police officers after the 2014 killing of Brown in Ferguson. This requirement did not save Floyd.
Police unions, often little more than white hate groups, continue to have the unassailable power to brush aside would-be reformers, including community review boards, mayors and police chiefs. These unions generously bankroll the campaigns of elected officials, including public prosecutors, who do their bidding. Police unions and associations have contributed $7 million to candidates running for office in New York state alone, including $600,000 to Andrew Cuomo during his gubernatorial campaigns.
It is, as Yogi Berra said, “déjà vu all over again.”
The public displays of solidarity are, as in the past, smoke and mirrors, a pantomime of faux anguish and empathy by bankrupt ruling elites, including most Black politicians groomed by the Democratic Party and out of touch with the daily humiliation, stress of economic misery and suffering that defines the lives of many of the protesters.
These elites have no intention of instituting anything more than cosmetic change. They refuse to ask the questions that matter because they do not want to hear the answers. They are systems managers. They use these symbolic gestures to gaslight the public and leave our failed democracy, from which they and their corporate benefactors benefit, untouched. What we are watching in this outpouring of televised solidarity with the victims of police violence is an example of what Bertram Gross calls “friendly fascism,” the “nice-guy mask” used to disguise the despotism of the ultra-rich and our corporate overseers. Whatever you think about Donald Trump, he is at least open about his racism, lust for state violence and commitment to white supremacy.
“The problem is an economic and political system that has by design created a nation of serfs and obscenely rich masters.”
The crisis we face is not, as the ruling elites want us to believe, limited to police violence. It is a class and generational revolt. It will not be solved with new police reforms, which always result, as Princeton professor Naomi Murakawa points out in her book “The First Civil Right: How Liberals Built Prison America,” in less accountable, larger and more lethal police forces.
The problem is an economic and political system that has by design created a nation of serfs and obscenely rich masters. The problem is deindustrialization, offshoring of manufacturing, automation and austerity programs that allow families to be priced out of our for-profit healthcare system and see nearly one in five children 12 and younger without enough to eat.
The problem is an electoral system that is legalized bribery designed to serve a tiny, unaccountable cabal of oligarchs that engage in legalized tax boycotts, deregulation, theft and financial fraud. The problem is that at least half of the working class and working poor, a figure growing exponentially as the pandemic swells the ranks of the unemployed, have been cast aside as human refuse and are being sacrificed on the altar of profit as the country reopens for business and the pandemic crashes in wave after wave on front line workers.
The problem is the diversion of state resources, including over half all federal discretionary spending, to an unaccountable military machine that wages endless and futile wars overseas, the savage face of white supremacy beyond our border. This military machine perfects its brutal tactics and tools for control on people of color in the Middle East, as it did in other eras in Vietnam, Latin America and the Philippines. It passes on this knowledge, along with its surplus equipment, including sophisticated equipment for wholesale surveillance, drones, heavily armed SWAT teams, grenade launchers and armored vehicles, to police at home. Smashing down a door and terrorizing a family in a night police raid in Detroit looks no different from a night raid carried out against an Afghan family by Army Rangers in Kandahar.
Empires eventually consume themselves. Thucydides wrote of the Athenian empire that the tyranny it imposed on others it finally imposed on itself.
The entrenched racism in America has always meant that poor people of color are the first cast aside in society and disproportionately suffer from the most brutal forms of social control meted out by the police and the prison system. But there will not be, as Martin Luther King pointed out, racial justice until there is economic justice. And there will not be economic justice until we wrest power back from the hands of our corporate masters.
Until that happens, we will go through cycle after cycle of brutal police murders and cycle after cycle of the profuse apologies and promises of reform. We are trapped in an abusive relationship. When we finally have enough, when we cry out in pain and walk out, our abuser comes after us with flowers and apologies and promises to change. Back we go for more.
My hope is that this time around the gaslighting will not work. The protestors that have taken to the streets in some 750 cities are young, diverse, angry and savvy. Many were betrayed by the Democratic Party hierarchy who once again ganged up on Bernie Sanders to shove a corporate stooge down our throats, the calculation by the ruling elites being that as awful as Biden is, we will vote for him because he is not Trump. That this tactic failed in 2016 doesn’t seem to faze the oligarchs.
“By defunding or abolishing the police, or by paying prison workers fair wages, the primary bulwark used to keep a subjugated population in check will be removed, or in the case of prisons make the system of neo-slavery financially unsustainable.”
Many of those in the streets can’t find meaningful work, are often burdened by large sums of student debt and have realized that in this world of serfs and masters they don’t have much of a future. They understand that if these protests are to succeed, they must be led by people of color, those who suffer disproportionally from the inequities and violence meted out by the occupying forces of the corporate state. And they also know that social inequality is at the root of the evil we must vanquish.
The ruling elites will never willingly defund or abolish the police, which cost taxpayers $100 billion annually and often eat up half of city budgets, for the same reason they will never pay a minimum wage to the 2.3 million prisoners who work in our ever-expanding gulag. By defunding or abolishing the police, or by paying prison workers fair wages, the primary bulwark used to keep a subjugated population in check will be removed, or in the case of prisons make the system of neo-slavery financially unsustainable.
Rather, the elites, while assuring us that they feel our pain, will insist, as Biden is doing, that by throwing even more money at the police, and increasing police numbers on the streets of our cities, police will be accountable. This is true. But the police will be accountable not to us but the ruling class.
In 1994, then Senator Biden pushed through the Violent Crime and Law Enforcement Act. It was supported by the Congressional Black Caucus, evidence of the growing disconnect between black political elites and those they should protect. The caucus has, in the face of the current crisis, once again called for the tired and toothless reforms that got us into this mess. “Black elected officials have become adept at mobilizing the tropes of Black identity without any of its political content,” notes Keeanga-Yamahtta Taylor in the New York Times.
The bill authorized $30.2 billion over six years for police and prisons. Biden boasted that he “added back into the Federal statutes over 50 death penalties—50 circumstances in which, if a person is convicted of a crime at a Federal level, they are eligible for the death penalty.” The bill, he bragged, authorized “over 70 increased—70, seven zero—70 increased penalties in new offenses covering violent crimes, drug trafficking, and gun crimes.” It also established the Community Oriented Policing Services or COPS Program that has handed more than $14 billion to state and local governments, most of the money used to hire more police. COPS also provided $1 billion to place police in schools, accelerating the criminalization of children.
The 1994 bill more than doubled the prison population. The United States now has 25 percent of the world’s prison population, although we are 4 percent of the world’s population. Half of the 2.3 million people in our prisons have never been charged with physically harming another person and 94 percent never had a jury trial, coerced to plea out in our dysfunctional judicial system.
Biden proudly said in 1994 he represented a new Democratic Party that was tough on law and order. “Let me define the liberal wing of the Democratic Party,” he said at the time. “The liberal wing of the Democratic Party is now for 60 new death penalties. That is what is in this bill. The liberal wing of the Democratic Party has 70 enhanced penalties, and my friend from California, Senator Diane Feinstein, outlined every one of them. I gave her a list today. She asked what is in there to every one of them. The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the democratic Party is for 125,000 new State prison cells.”
There is only one way to defeat these forces of occupation and the ruling elites they protect. It is not through voting. It will come from the streets, where tens of thousands of courageous men and women, facing arrest, indiscriminate police violence, economic despair and the threat of Covid-19, are fighting for not only an end to racism, but for freedom.
Recalling the provocation that came midway through a routine traffic stop, Danville police officer Dylan Hayden told reporters Thursday that driver Donald Watkins’ decision to frustratedly point his finger at him was just the green light he needed. “Legally, I’m not allowed to touch the motorist after pulling him over, but when he extended his index finger directly toward me, I knew that gave me the go-ahead right there to take whatever action I deemed necessary,” said Hayden, adding that as soon as he noticed the conceivably threatening hand gesture, he had full authority to skip right ahead to exerting force. “Frankly, I probably would’ve had the okay to rock and roll after he cursed under his breath, but I wanted to be absolutely certain that I was in the clear. Once he pointed his finger at my chest from inside his vehicle, I knew I’d be covered no matter what happened next. He really left the door wide open for me with that one.” Hayden expressed confidence that there was probably someone wanted for robbery who looks similar enough to Watkins to legally justify pulling him over in the first place.
This inquiry is timely—perhaps even urgent. Over the past several decades, the Court has been slowly changing the doctrinal formula for qualified immunity. Most recently, it has begun to strengthen qualified immunity’s protection in another way: by giving qualified immunity cases pride of place on the Court’s docket. It exercises jurisdiction in cases that would not otherwise satisfy the certiorari criteria and reaches out to summarily reverse lower courts at an unusual pace. Essentially, the Court’s agenda is to especially ensure that lower courts do not improperly deny any immunity. This approach sends a strong signal to lower courts and elevates official-protective qualified immunity cases to a level of attention exceeded only by the Court’s state-protective habeas docket. While the Court doubles down on qualified immunity, the doctrine has also come under increasing outside criticism. Recently publicized episodes of police misconduct vividly illustrate the costs of unaccountability. Indeed, the NAACP Legal Defense Fund has explicitly called for “re-examining the legal standards governing . . . qualified immunity.”10 The legal director of the ACLU of Massachusetts has named the doctrine of qualified immunity as among the policing precedents that “we must seek to tear down.”11 Judge Jon Newman has argued that “the defense of qualified immunity should be abolished” by Congress.12 These calls make it all the more important to figure out whether the modern doctrine of qualified immunity has a legal basis in the first place.
THE LEGAL JUSTIFICATIONS FOR QUALIFIED IMMUNITY
The statute colloquially known as “Section 1983,” because it is codified at 42 U.S.C. § 1983, makes liable state actors who violate constitutional or other legal rights. It was first enacted during Reconstruction as a section of the 1871 Ku Klux Act, part of a suite of “Enforcement Acts” designed to help combat lawlessness and civil rights violations in the southern states. The statute originally provided: That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under theprovisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication”; and the other remedial law of the United States which are in their nature applicable in such cases.13As currently codified in the U.S. Code, the statute provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.14
Neither version of the text, you will notice if you wade through them, makes any reference to immunity. (The reference to the “same rights” and “other remedies” in the original statute pointed to the 1866 Civil Rights Act, which provided broad federal remedial authority, Supreme Court review, and presidential authority to direct prosecutions and use the military to enforce the Act.)
50 CALIFORNIA LAW REVIEW[Vol. 106:45 shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.14Neither version of the text, you will notice if you wade through them, makes any reference to immunity. (The reference to the “same rights” and “other remedies” in the original statute pointed to the 1866 Civil Rights Act, which provided broad federal remedial authority, Supreme Court review, and presidential authority to direct prosecutions and use the military to enforce the Act.)15Yet that is not the end of the matter. Legal texts that seem categorical on their faces are frequently “defeasible”—that is, they are subject to implicit exceptions made by other rules of law.16 “No vehicles in the park” might forbid ambulances from entering, but a separate rule of law may nonetheless provide an exception for government vehicles or for responses to an emergency.17Perhaps more to the point, legal provisions are often subject to defenses derived from common law. For example, the common-law rules of self-defense, duress, and necessity can all apply to criminal statutes that do not even mention them.18 Similarly, I have elsewhere defended the current doctrine of state sovereign immunity even though it, too, is an unwritten defense that goes almost unmentioned in the text of the Constitution.19 So perhaps Section 198320 permits such an unwritten immunity defense despite its seemingly categorical provisions for liability. To say that an unwritten defense can exist, however, is not to say that any particular unwritten defense is in fact legally justified. Such defenses come from other legal sources and must be justified on their own legal terms.
Section 1983 changed this framework. It created a direct cause of action against state officials for “the deprivation of any rights . . . secured by the Constitution”25 and thus eliminated the need to first allege a common-law claim or damages. In Hohfeld’s terms,26 most constitutional rights went from being treated as rules about power to being treated as duties.27 As a result, Section 1983 raised questions about how the new constitutional claims related to the old common-law claims, and whether the common law had any role to play in the new constitutional suits.
In their preference for a policy that protects police, conservatives abandon their commitment to textualism and embrace pro-government judicial activism.
If you haven’t watched the video of (former) Minneapolis police officer Derek Chauvin killing George Floyd by jamming his knee into Floyd’s cervical spine for nearly nine minutes until he loses consciousness, you really should. And if you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose. No wonder it seems as though the country is coming apart at the seams.
In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983” after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right.
But many conservatives do an odd thing: In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights.
As documented in considerable detail on Cato’s Unlawful Shield website, those two words—“clearly established”—do an extraordinary amount of work in keeping meritorious cases out of court and ensuring that plaintiffs whose rights have been violated by police or other state actors will receive no recovery unless they can find a pre-existing case in the jurisdiction with nearly identical facts. But that is plainly not the statute that Congress wrote, nor is it the standard of accountability that Congress chose. Moreover, as Professor Will Baude demonstrates in his masterful article, “Is Qualified Immunity Unlawful?,” there is no credible textual or historical basis for the qualified immunity doctrine; it is a blatant act of pro-government judicial policymaking—activism, if you will—and nothing more.
So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being.
It is well known that prosecutors rarely bring criminal charges against police officers, and indeed it seems unlikely Chauvin would have been charged had his assault on George Floyd not been captured on a viral video. That means the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board. But the Supreme Court has largely gutted that remedy with a judicially confected gloss that transforms the legislatively chosen policy of strict liability into one of near-zero accountability.
Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court.
This Monday we will find out whether the Court will take the unprecedented opportunity it now has to revisit qualified immunity. It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement.
Redirect it to emergency response programs that don’t kill black people.
The only way we’re going to stop these endless cycles of police violence is by creating alternatives to policing. Because even in a pandemic where black people have been disproportionately killed by the coronavirus, the police are still murdering us.
On Monday, a worker at a store in Minneapolis called 911, claiming that George Floyd had used counterfeit money. The incident ended with a police officer suffocating Mr. Floyd to death, despite his and bystanders’ pleas for mercy. Protests have since erupted across the country while the police respond with military-style violence.
As the case of George Floyd makes clear, calling 911 for even the slightest thing can be a death sentence for black people. For many marginalized communities, 911 is not a viable option because the police often make crises worse. These same communities, who often need emergency services the most, are forced to make do without the help.
More training or diversity among police officers won’t end police brutality, nor will firing and charging individual officers. Look at the Minneapolis Police Department, which is held up as a model of progressive police reform. The department offers procedural justice as well as trainings for implicit bias, mindfulness and de-escalation. It embraces community policing and officer diversity, bans “warrior style” policing, uses body cameras, implemented an early intervention system to identify problematic officers, receives training around mental health crisis intervention, and practices “reconciliation” efforts in communities of color.
George Floyd was still murdered. The focus on training, diversity and technology like body cameras shifts focus away from the root cause of police violence and instead gives the police more power and resources. The problem is that the entire criminal justice system gives police officers the power and opportunity to systematically harass and kill with impunity.
The solution to ending police violence and cultivating a safer country lies in reducing the power of the police and their contact with the public. We can do that by reinvesting the $100 billion spent on policing nationwide in alternative emergency response programs, as protesters in Minneapolis have called for. City, state and federal grants can also fund these programs.
Municipalities can begin by changing policies or statutes so police officers never respond to certain kinds of emergencies, including ones that involve substance abuse, domestic violence, homelessness or mental health. Instead, health care workers or emergency response teams would handle these incidents. So if someone calls 911 to report a drug overdose, health care teams rush to the scene; the police wouldn’t get involved. If a person calls 911 to complain about people who are homeless, rapid response social workers would provide them with housing support and other resources. Conflict interrupters and restorative justice teams could mediate situations where no one’s safety is being threatened. Community organizers, rather than police officers, would help manage responses to the pandemic. Ideally, people would have the option to call a different number — say 727 — to access various trained response teams.
The good news is, this is already happening. Violence interruption programs exist throughout the country and they’re often led by people from the community who have experience navigating tricky situations. Some programs, like one in Washington, D.C., do not work with the police; its staff members rely instead on personal outreach and social connections for information about violence that they work to mediate and diffuse. We should invest in these programs, which operate on shoestring budgets, so they have their own dedicated dispatch centers outside of 911.
Dallas is pioneering a new approach where social workers are being dispatched to some 911 calls that involve mental health emergencies. The program has shown success, and many of the people receive care that they would never have gotten in jails or overcrowded hospitals.
In California, the Bay Area Transformative Justice Collective deals with child sexual abuse without the police. The collective develops pods — groups of people including survivors, bystanders or people who have harmed in the past — that each pod-member feels they can turn to for support when needed.
Here’s another idea: Imagine if the money used to pay the salaries of police officers who endlessly patrol public housing buildings and harass residents can be used to fund plans that residents design to keep themselves safe. The money could also pay the salaries of maintenance and custodial workers; fund community programs, employment and a universal basic income; or pay for upgrades to elevators and apartment units so residents are not stuck without gas during a pandemic, as some people in Brooklyn were. The Movement for Black Lives and other social movements call for this kind of redirection of funds.
We need to reimagine public safety in ways that shrink and eventually abolish police and prisons while prioritizing education, housing, economic security, mental health and alternatives to conflict and violence. People often question the practicality of any emergency response that excludes the police. We live in a violent society, but the police rarely guarantee safety. Now more than ever is the time to divest not only from police resources, but also the idea that the police keep us safe.