Saturday, July 21, 2007

Loose lips sink suicide bombers

I am at a loss to explain why the Senate Democrats (including our own Senators Kohl and Feingold) thought it necessary to kill the "John Doe amendment" granting limited immunity to persons reporting a suspicious activity.

It would be one thing if it granted absolute immunity for such reports or even if it granted such immunity to anyone who, for whatever reason, believes that he or she has seen something untoward, however foolish that belief might be, i.e., to those with pure hearts but empty heads.

But it doesn't do that. In the pertinent text, immunity is granted to:

Any person who, in good faith and based on objectively reasonable suspicion, makes, or causes to be made, a voluntary report of covered activity to an authorized official shall be immune from civil liability under Federal, State, and local law for such report. (Emphasis supplied)

Covered activity is defined as "any suspicious [activity,] indicating that an individual may be engaging, or preparing to engage, in" certain criminal acts.

In other words, you don't get immunity unless you both believe that the person you report may be engaging in covered activity and that belief is reasonable. A pure heart is not enough. Do the Senate Democrats really want people to be held liable for reporting their reasonable suspicions of terrorist activity?

If the concern is racial profiling, the amendment would require that a person claiming immunity articulate an objectively reasonable basis for his or her report. I can't imagine that too many courts are going to think that "flying while muslim" cuts it. (If you are worried that juries will excuse racial profiling, then no such lawsuits are going to be successful anyway.)

I have looked in vein for some reasoned critique of the amendment so I've got to imagine what the Dems might say. One argument might be that it is not necessary because most existing theories of liability that might be asserted against people reporting suspicious activity would require some demonstration of negligence or malicious intent.

The problem is that it would be wrong. One of the theories advanced in the flying imams lawsuit is defamation. Common law defamation (and, to throw out another example, common law invasion of privacy) have no such requirements. While I think it is highly unlikely to ever succeed, I can also imagine a claim for conspiracy to violate Title VI (the law that prohibits discrimination in public accommodations) that might not require intent or negligence. (In fairness, I haven't fully thought through the latter.)

The point is that it is far from clear that immunity is unnecessary.

Another objection might be federalism. Why should federal law preempt state lawsuits? Apart from the fact that I am almost certain that this is not why the Dems oppose the law, it does not seem preposterous to think that there is a national security or interstate commerce hook here that is broad enough to support congressional action.

So what's going on here? No, I don't think that Democrats are courting the jihadist vote, but this does seem like a sop to some constituency.


Dad29 said...

but this does seem like a sop to some constituency

OK. I'll be the fart in the party-room.

How about the trial-bar constituency?

Rick Esenberg said...


Maybe, although this doesn't seem like a very lucrative practice area. I don't think that juries are going to get angry at people who report things in good faith (even if it may not be objectively reasonable) or that false reports will cause much harm. You generally need a base of significant injury and then a hook with which to inflame the jury if you really want to ring the bell.

Anonymous said...

Rick, you are interrupting Dad's attempt to throw together a good story. A good story needs bad guys. And, we know that all things we disagree with are the direct result of nefarious machinations by "trial lawyers," homosexuals, white guilt sufferers, criminal coddlers, and the other usual suspects.

It might have been interesting if someone actually triued to find out why the opponents were opposed so we could assess the reasoning - but that's no fun.

A guess; current law does not typically provide a cause of action for money for honestly and in good faith reporting to law enforcement concerns that a crime might be afoot.

It makes me wonder what the actual affect of the change would have been.

Sorry to bore you dad. I am sure that, somewhere, gay terrorists are working with trial lawyers and union types to use government money to promote abortions anc crack smoking.

Dad29 said...

I am sure that, somewhere, gay terrorists are working with trial lawyers and union types to use government money to promote abortions and crack smoking.

Actually, they're doing quite well with the abortions, Anony. And you forgot about the ACLU. Try harder next time.

Believe it or not, I wasn't really serious about the 'trial lawyer' thing--because I, too, understand that there's no "there" there for money awards.

(But, as Anony observes, lawyers are an easy target.)

Like Anony and Rick, I am absolutely mystified as to the rationale behind the vote of the Dems. They cannot be serious when they yammer about "not-related-to-the-main-legislation" which was their figleaf-cover.

Maybe it's just pure partisan spite and they'll come up with their own version next week.

Anonymous said...

The flying Imam's were purposely trying to act suspicious.
Now they are suing the passengers who pointed out that they were acting suspicious.
There is no shortage of John Edwards types out there that are willing to sue for a share of the cash or infamy.
Russ Feingold is just an idiot.

Other Side said...

Rick, I don't dabble in the law, but I have a question that perhaps you could answer. Haven't people always had the right and obligation to report suspicious activity?

If this is true, wouldn't it be reasonable to assume that someone who was wrongly accused of illegal activity sued for redress?

So, if all this is true, why the John Doe amendment (making use of the conservative argument against hate crime laws)? Is it not really being leveled at Arab-Americans who might be singled out rather that those who single them out?

Anonymous said...

Other side, what is happening here, is those who would harm us and those who sympathize with that cause, are using OUR SYSTEM against us.
For example.
I act very very very suspiciously.
I say things that would obviously make others uneasy.
I ask for seat belt extenders.
I sit separately from those I am traveling with.
I create a scenario to make it LOOK suspicious, on purpose.
People take the bait.
I sue them, getting the nearest John Edwards/Robin Shellow.
Those being sued cannot afford to defend themselves, as they HAVE to hire attorneys who don't work on contigency.


Anonymous said...

The Kohl-Feingold opposition to the John doe provision is rooted in their insecurity over personal freedom. The amendment curtails government review of the motives of the observers - a bad thing in their view that trumps the logic of the amendment. This is just another brick in the wall of the athoritarian trend in Democratic party politics.

Other Side said...

Well, libocrat, my question was addressed to Rick, but I think I can say with 100% certainty that John Doe was NOT written with the scenario you portrayed in mind. Unless you're talking about B-actors who run for president. Then it would be a very good thing.

Hmmm, I can't imagine how taking away the amendment (removing that brick, so to speak) adds to authoritarianism. Me thinks removal of habeus corpus, unwarranted wiretaps, secret prisons, etc. add more to authoritarianism.

Rick Esenberg said...


The problem with making people "guess right" if they are going to report suspicious behavior is that they will be dissuaded from doing so. This is why we often - well, sometimes - grant immunity to encourage people to do what we want them to do, e.g., laws that immunize medical professionals who grant emergency assistance.

This is very limited immunity. Your report must be based on a suspicion that others would find reasonable. I literally cannot imagine a basis to oppose it.

Other Side said...

Thanks Rick. Let em ask ... John Doe is aimed specifically at travellers on airlines, correct?

And, it is a known fact that the vast majority of people that have involved themselves in 21st century terrorism on airplanes have been Arabs.

You don't think that this amendment sets up profiling situations, despite limited immunity?

I know we agree not every Arab is a terrorist. But the howls of protest from some of the lesser lights of the conservosphere, and the coarse and racist language used, lead me to think they would not be disuaded by limited immunity.

Otherwise, thanks for the illumination.

Anonymous said...

See comments in response to your related blog on this issue. There are several valid reasons that Republicans-- at least the old fashioned Republicans-- ought to oppose.