Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
After the mass shooting at Marjory Stoneman Douglas high school in Parkland, Florida, Republican lawmakers in Tallahassee are now calling for the Governor to exercise his authority to suspend the Sheriff of Broward County, Scott Israel, for “incompetence and neglect of duty” for failing to prevent the massacre. In a letter to the Governor, the lawmakers describe a long catalog of warning signs that they argue the Sheriff’s office ignored. It begins: “During Sheriff Israel’s first week in office, his deputies responded to a call from [the then-14-year-old shooter’s] mother, who complained about her son’s violent response to her taking away his video games. They did nothing.” The letter goes on to cite dozens of additional calls to sheriff’s deputies through November 2017 that should have raised concerns, but each time, the letter repeats its refrain: “Nothing was done.” As a final straw, one sheriff’s deputy was outside the school during the shooting itself and did not act.
The calls for Sheriff Israel’s removal brought to mind another famous case of police inaction—one that similarly turned on the possibility that, if the police had intervened in a timely way, they might have prevented the slaughter of children. In the 2005 Supreme Court case of Castle Rock v. Gonzales, Jessica Gonzales alleged that she had shown the Castle Rock police a copy of a temporary restraining order a court had entered against her estranged husband, which ordered him not to “molest or disturb the peace of [Gonzales] or of any child” and to stay at least 100 yards away from her house. She alleged that the police nonetheless refused, for hours and despite her increasingly desperate calls for help, to do anything to investigate, after her husband showed up at her house and kidnapped their daughters, who he later murdered. Castle Rock built on a prior and more famous 1989 Supreme Court case, DeShaney v. Winnebago County Department of Social Services (DSS), in which the local social service agency charged with preventing child abuse did nothing, despite mountains of tips and evidence, including highly suspicious and severe injuries, to protect 4 year old Joshua DeShaney from physical abuse by his father, which finally left the child with profoundly life-altering traumatic brain injuries from blows to the head. (Joshua died in 2005 at age 36.) In DeShaney, and again in Castle Rock, the Supreme Court held that the Constitution categorically does not offer individuals protection against private violence, even when that violence might have been prevented by the actions of the police or other government actors whose official duty is to prevent such violence. The Supreme Court majorities in these cases framed them in terms of a bedrock constitutional axiom—one born in the late 1970s and 1980s—that the Constitution secures only negative rights, not positive rights. On this view, you can complain about police action that violates your rights, but if your complaint is about police inaction, you’re out of luck.
Justice Brennan’s dissent in DeShaney could have been written by Robert Hale. Lamenting the majority’s “fixation” on the formalistic distinction between positive and negative rights, Brennan disputed that the case was really about government inaction in the first place. “I would focus on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State has failed to take,” he begins. What action? The state “has established a child welfare system specifically designed to help children like Joshua” and the state specifically “directs” citizens and police and everyone else “to depend on” this system and make sure it is the place where you report abuse—thereby “reliev[ing] ordinary citizens . . . of any sense of obligation to do anything more than report their suspicions of child abuse to DSS” and ultimately displacing whatever sources of private help might have been available to Joshua in a world without the DSS.
Brennan didn’t bother to point this out, but there are lots of reasons we might have thought such displacement a sound idea. Neighbors confronting neighbors over child abuse—well, that could work, but it’s likely to go disastrously wrong frequently enough that it makes a lot of sense to socialize this function. This sort of thing is a big part of why you build a modern social welfare state. The same kind of logic explains why Broward County has a Sheriff.
Obviously there are reasons why one might call for the suspension or resignation of a Sheriff who failed to prevent the slaughter of the children in Parkland while not similarly calling for courts to allow constitutional claims against the police who failed to prevent the slaughter of the children in Castle Rock, or the DSS that failed to prevent the abuse of Joshua DeShaney. There’s an institutional difference between sanctions by a Governor and court claims by victims. Still, there is an underlying normative through line here that is hard to ignore, and it has to do with the core ethos of a certain species of libertarianism.
When we make a collective decision through politics to create government bodies such as the police or the DSS who have extensive special powers and duties to protect us all from certain forms of private violence, we are deliberately altering a socio-legal baseline. We are taking a step away from a Wild West baseline of violent self-help and self-protection, and toward a baseline in which we cede certain important powers and responsibilities to the government. Some actions that might have been acceptable or even praiseworthy against the “you’re on your own” baseline of the (stylized, imagined) Wild West become, instead, negligent or worse against the baseline of a society with modern institutions such as police whose responsibility is to stop certain forms of private violence. This kind of baseline-altering change is generally slow, uneven, and contested. Whenever important functions migrate out of the realm of individual self-help and become core duties of public bureaucracies (such as the police), it’s a sad day for a certain kind of libertarian. Over the past century there have been a lot of such days.
New forms of libertarianism blossomed in the late 1970s and 80s, and it was during a significant crime wave. In a story told well by Adam Winkler, that crime wave led to two powerful, contradictory responses: some Americans tried to enact restrictive gun control laws, placing faith in the police and hoping to give the police a little more of a monopoly on force, while other Americans demanded guns for self-protection against crime and loathed the new gun control laws, viewing them as a threat to their personal safety. This second group took over the National Rifle Association (until then a sportsmen’s group), and built modern American gun politics, recasting the Second Amendment as a right to individual self-protection. This was a profoundly libertarian recasting of that Amendment. (And indeed, the lawyers who brought the Heller case to the Supreme Court were a bunch of libertarians.) Their epic popular-constitutional success rendered the Second Amendment a kind of libertarian charter of gun-based self-help.
And that brings us, finally, back to Sheriff Israel. School shootings pose profound problems for anyone with the kind of libertarian ethos that emphasizes gun-based self-help as the first protection from private violence. The problem is that this ethos demands skepticism of all the regulatory solutions that could keep people like the Parkland shooter from obtaining an AR-15. You certainly can’t ban AR-15’s—obviously people need them for self-protection. You can try endorsing various methods of separating the “good” gun buyers from the “bad” ones with policies such as background checks, tolerating that bit of government bureaucracy, but there is no reason why teenage school shooters, with clean criminal records, would fail a background check. Realistically, if we all have a right to unlimited AR-15’s, large magazines, and so on, then some teenage school shooters will obtain these items too. So at that point you’re left in an awkward spot. For some gun rights folks, the obvious and only solution is arming teachers, and maybe students, on the theory that guns are a “positivegood” and more is better, but on some level, even this idea’s proponents are probably aware that even if this were a terrific idea, most teachers will not go for it, so there are pretty serious limits to how far it can reach (and of course, even if every teacher were required to be armed, it would not stop massacres committed by people who fully expect to die). And that is why, having exhausted various other options, you find yourself making claims that make absolutely no sense from within the ethos of your own type of libertarianism, claims that ought to be absolute anathema to that ethos: claims, for instance, that we ought to build what would necessarily amount to a massive and intrusive mental health bureaucracy, with the power to take away people’s guns quickly and without unnecessarily restrictive due process. Or, swinging even more wildly, claims that the blame in Parkland falls on the Sheriff’s office, or the FBI, or some other government bureaucracy—please, government, protect us! These moves undoubtedly come with some cognitive dissonance, but they are apparently preferable to considering alternatives such as banning AR-15’s, which not only would deprive law-abiding citizens of those weapons, but also would entail an admission that because some people are homicidal, and it’s hard to know who, making more powerful guns more widely available tends on the whole to make society more dangerous. And that obviously cannot be admitted.
One of the many problems with the particular type of libertarian ethos that emphasizes gun-based self-help over government bureaucracies like the police is that even if you buy all the implausible premises at the core of this ethos, you still don’t have a good solution when it comes to children. Children are clarifying in that way. Arming children is not going to work out well, even granting all those implausible premises. So then what? Maybe you can arm lots of adults to protect some of the children from other adults. But this isn’t going to do anything for Poor Joshua. He needed us to build him a competent government.
In this way, children’s vulnerability and dependence can help keep us honest. It can stand on its own terms, and it can also stand in for the vulnerability and dependence on society and government that adults do not always see clearly in ourselves. Because children can’t do some things on their own, perhaps they can help us understand some of the ways we’re all in this together. Posted
by Joseph Fishkin [link]