‘Your papers, please” and the tort reformers

If there’s anything libertarians and social conservatives hate more than Big Government, it’s the Greedy Plaintiff’s Bar. Defenders of the Arizona “Your Papers, Please?” bill don’t seem to have noticed is that it creates a right of private action.  Any citizen can sue any “official or agency” for having a “policy or practice” of  failing to be mean to brown people “to less than the full extent permitted by Federal law,” and if the suit succeeds the plaintiff can collect attorneys’ fees.  (Relevant text at the jump.) Law enforcement officers are personally liable if they are found to have acted in “bad faith.” Rachel Maddow points out that FAIR, which helped write the bill, would stand to benefit financially from this provision.

Note that if two law enforcement agencies, or two different cops, in Arizona have different rates of asking brown people to show their papers, that’s prima facie evidence that the agency with the lower rate has a policy or practice of not acting to “the full extent permitted by federal law.” It’s a plaintiff’s lawyer’s fantasy.

And yet none of the loudmouth “tort reformers” seems to mind. I wonder why that might be. (Perhaps for the same reason that the people who kicked up the “vote fraud” hysteria about ACORN won’t mention that the California Republican Party has been caught – again – hiring a contractor to defraud people into registering Republican?

Footnote Add Mike Huckabee to the list of Republicans criticizing the Arizona law. As I keep saying, Huckabee is dangerous; he’s very conservative and not very well educated, but he’s smart and sane and has a conscience. Unlike Sarah Palin, he could wind up as President.

From the bill, as passed:

G. A PERSON WHO IS A LEGAL RESIDENT OF THIS STATE MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY OR PRACTICE THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.
H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G OF THIS SECTION AND REMIT THE CIVIL PENALTY TO THE STATE TREASURER FOR DEPOSIT IN THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND ESTABLISHED BY SECTION 41‑1724.
I. THE COURT MAY AWARD COURT COSTS AND REASONABLE ATTORNEY FEES TO ANY PERSON OR ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT PREVAILS BY AN ADJUDICATION ON THE MERITS IN A PROCEEDING BROUGHT PURSUANT TO THIS SECTION.
J. EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS ADJUDGED TO HAVE ACTED IN BAD FAITH, A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW ENFORCEMENT OFFICER’S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING BROUGHT PURSUANT TO THIS SECTION IN WHICH THE OFFICER MAY BE A DEFENDANT BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW ENFORCEMENT AGENCY.

Comments

  1. kevo says

    Yeah, I thought Republicans hate trial lawyers! Why did the Republican Arizona govenor hand a victory to trial lawyers with the signing of the legislation?

    The mashed up platform the Republicans are trying to sell us doesn't make sense, and I wonder if that is just the type of strategy they are employing going into the mid-term elections – don't stand for or propose anything, just muck up the political landscape so the unassuming voters will plant Republicans back into office.

    Why does the early 21st century Republican party maintain its relentless use of wedge issues, fearmongering and obfuscation, save for a political strategy that doesn't stress governance, but rather only wants power! -Kevo

  2. Joe S. says

    I agree with Mark's point on Huckabee–except the "conservative" tag.

    Mike Huckabee is pure American Taliban, not movement conservative. Taliban doesn't have much patience with free markets and no patience with big bidness. Huckabee has had a history of being at loggerheads with the funding wing of his party. Which is why (along with his face made for radio) he will probably not get the R nomination.

  3. BM says

    The first place I'd like to see ID checks at "the full extent of Federal law" is at the next [I]gun show[/I]. There's one in Tuscon this weekend, I believe. I'd like to see the collision of "it violates my rights to need an ID card to buy an assault rifle" and "anyone showing their face in public must have ID".

  4. Anonymous says

    Please. We must create a distinction between "Voter Registration Fraud." and "Vote Tabulation Fraud."

  5. Brennan says

    I don't think this criticism of the tort reformers is plausible.

    Mark Kleiman suggests that "loudmouth" tort reformers have not criticized the Arizona law because of … some unspecified (but presumably nefarious) reason. Other, more specific and more plausible explanations for the "silence" of the tort reformers come to mind, however. Perhaps they didn't notice it because … they didn't notice it. It's a brand new immigration-related law, after all; not the usual place the tort reformers focus their attentions.

    Or maybe, just maybe, it's because this law does not create a "tort" at all. A tort is usually thought of as a civil remedy for a personal injury in which the injured party may recover compensatory damages from another private party. This law, however, only allows suits against government agencies and government officials. Moreover, there is no requirement that the plaintiff prove he or she was injured and the remedy created is a "civil penalty", not compensatory damages. The plaintiff doesn't even get to keep the "civil penalty" — it gets transferred to the state government!!

    The law is clearly intended to force local governments to comply with an unpopular new regulation; in effect, it is a structural, "good government" law (which is not to say that it's good) like the state Sunshine laws that regulate transparency in local government — it has nothing to do with tort law. And by the way, the attorney's fee provision is not one that the plaintiff's bar would like as it appears to be (a) left entirely up to the discretion of the judge, and (b) potentially benefits both plaintiffs and defendants (an unusual provision).

    If you think this Arizona law is the kind of problematic law that the tort reformers complain about, then you haven't been paying attention.

  6. Warren Terra says

    Brennan, you appear to be making a distinction between frivolous and ill-founded lawsuits that function more to employ lawyers than for any positive purpose when those lawsuits target government and when they target individuals and corporations (although, I suppose, your side now believes corporations are individuals).

    Your argument that the plaintiff sees no personal benefit is moot – the whole post, and indeed a preponderance of the arguments made by "tort reformers", is about the benefit to the lawyers, and the construction of a legal system whose main effect is to benefit them. By your own admission, the bar set for a successful lawsuit under the "Papieren, bitte" law is very low: no injury must be demonstrated, and as Mark said any flagging of zeal when compared to any other official is automatic proof that the accused official could have been doing more.

    Basically, what you're saying is that you don't like lawsuits that target wealthy people and wealthy corporations, but lawsuits that target government, especially lawsuits that target government for insufficient zeal in persecuting your perceived enemies, are fine with you. This isn't very surprising, but it also isn't very principled. Which was rather the point of the post.

    P.S. Re the 12:28 PM post by "Anonymous", the point of your comment wasn't clear. Also, would it really inconvenience you to use a pseudonym by which you could be addressed – better yet, to consistently stick to a particular pseudonym by which you might, if you stick around, develop a track record that would establish the reasonableness and lucidity (or, I suppose, otherwise) of your comments?

  7. Richard W. Crews says

    I want to go to AZ and pose as a Swedish person. I'm blonde/blue, so I look the part. Then I want someone to demand that a policeman ask me for my papers. Of course, I won't have them. So, due to the complaint, the policeman MUST arrest me, right?

    If he does, I stink up the whole court process, and cost AZ thousands. If he doesn't arrest me, then we sue him! All the while, I offer no papers – because I don't have to.

  8. Joe S. says

    Uh, Brennan, there is this little thing called the "Federal Torts Claims Act." It creates liability for, uh, something that the government does. I have no idea why they chose to use the word "tort." It must be the damn gummint interfering with the natural order of things again.

    Your point on the recipient of the remedy is not quite as lame. However, some states (Oregon, IIRC), transfer a fair amount of punitive damages in tort (again!) cases to the state.

  9. K says

    Brennan, the (notional) author of SB1070, Russell Pearce, has been a vocal proponent of tort reform, & in particular is not normally a defender of the right to sue cops. Likewise in varying degrees with most of the members of the AZ legislature who voted for it & the governor who signed it. At least they are aware of the provisions of the bill. (It's only 17 pages long.) The underlying proposal isn't new. A similar bill had been vetoed by then-Gov. Napolitano several years ago. Look at the old press coverage & you'll see that this provision has always been a big selling point with the public. So at least some significant share of the members of the AZ public who support the bill will have been aware of the tort provision.

    The FAIR people have been barnstorming to get similar laws enacted elsewhere, & they also put public emphasis on this provision. It's good that Maddow emphasizes the Immigration Law Reform Institute's — FAIR's legal arm — material interest in the provision.

  10. Brennan says

    Warren Terra said:

    "Brennan, you appear to be making a distinction between frivolous and ill-founded lawsuits that function more to employ lawyers than for any positive purpose when those lawsuits target government and when they target individuals and corporations (although, I suppose, your side now believes corporations are individuals)."

    Warren, I have no idea where you found that in what I wrote. I thought I was making a distinction between causes of action that are properly called "torts" and those that are not.

    Warren said: "Your argument that the plaintiff sees no personal benefit is moot – the whole post, and indeed a preponderance of the arguments made by “tort reformers”, is about the benefit to the lawyers, and the construction of a legal system whose main effect is to benefit them. By your own admission, the bar set for a successful lawsuit under the “Papieren, bitte” law is very low: no injury must be demonstrated, and as Mark said any flagging of zeal when compared to any other official is automatic proof that the accused official could have been doing more."

    I don't think I wholly agree with your characterization of tort reform, but I don't see how it's relevant to my critique of Mark's post. (I also don't think Mark's interpretation of the statute to allow different arrest rates to constitute a prima facie case is inevitable and it's certainly not part of the statute he quoted.)

    Warren said: "Basically, what you’re saying is that you don’t like lawsuits that target wealthy people and wealthy corporations, but lawsuits that target government, especially lawsuits that target government for insufficient zeal in persecuting your perceived enemies, are fine with you. This isn’t very surprising, but it also isn’t very principled. Which was rather the point of the post."

    Warren, that's a remarkably offensive accusation to say that I "don’t like lawsuits that target wealthy people and wealthy corporations, but lawsuits that target government, especially lawsuits that target government for insufficient zeal in persecuting your perceived enemies, are fine with you." Would you care to explain how you found anything like those sentiments in what I wrote?

  11. Joe S. says

    Brennan,

    Question. What arguments brought by the tort reformers would not apply to this statute? And if you are going to repeat your earlier point (this is not a tort), please answer my upstream post, as well as Warren's.

  12. Brennan says

    Joe S. said: "Uh, Brennan, there is this little thing called the “Federal Torts Claims Act.” It creates liability for, uh, something that the government does. I have no idea why they chose to use the word “tort.”

    Some causes of action are torts, some aren't. The FTCA uses the word "tort" because it makes the government liable for "torts" committed by federal employees as if the government were a private employer. See 28 USC 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances …."). Now you know. The FTCA doesn't fundamentally alter the nature of tort claims, it just adopts whatever the local torts are and says that the government will be treated like a private individual with legal liability for the bad acts of its employees. Accordingly, I don't see how the FTCA implies that new Arizona law is properly called a tort. I am open to persuasion that I'm wrong, of course.

    You also said "It must be the damn gummint interfering with the natural order of things again." Sarcastic insults aren't persuasive. Also, why the heck are you even interested in insulting me? Because I said that this new law isn't a tort? Seriously?

  13. Brennan says

    Joe S.

    I wanted to respond to you and Warren in separate posts, thus the delay. To respond in brief to your question about the arguments of tort reformers that would not apply to this statute, I think that this law does not create much of an incentive to sue, either for plaintiffs or plaintiffs' attorneys, and usually bad tort law is considered to create disproportionate economic incentives for people to sue. I also beleive that a major complaint of the tort reformers is the vast unpredictability of damage awards (and the potential for puntive damages.) This law merely threatens local governments with relatively small penalties.

  14. Joe S. says

    Brennan,

    I don't understand your first argument. You started with stating that a tort is not a suit against the government. When I pointed out that it could be (admittedly snarkily), you then switched to a reference to the inherent nature of torts. This would be fine if you clarified the inherent nature of torts, but I don't see how you did so, except to point out that the government is not a tort defendant, and that tort recoveries are inherently private. Neither statement is true. This law closely resembles a claim of nuisance against the government. It's not much of a stretch to call it a tort.

    I think we have an honest old-fashionied empirical disagreement on your second point. You maintain that the tort reformers' argument against tort law is that it often creates "disproportionate economic incentives for people to sue." I believe that this statement is a fair characterization of one of their key arguments. However, you also maintain that the AZ statute won't lead to much litigation. I don't agree with this. Immigration is a hot-button political issue, much like the Establishment Clause. I notice no lack of creche cases every Christmas. People with politics love expressive litigation: on both the right and the left. And if you can cite the FTCA to me, you can certainly figure out how plaintiffs can neutralize the risk of fee-shifting.

  15. K says

    Whether or not the new cause of action is really a tort, it fits awkwardly w/ the law’s supporters’ general ideological orientation. Russell Pearce — I mention him again because it truly is astonishing that AZ Republicans have let such a grotesque figure take control of their agenda — emphasizes that he’s a former cop (he was briefly Arpaio’s chief deputy), & has made it one of his main slogans that the law just “takes the handcuffs off the police.” His argument is that, since we trust cops to carry guns, a fortiori we should trust them not to engage in racial profiling. Neither he, nor his constituents, nor the law’s supporters nationally are generally friends of people w/ grievances against the police.

    So this is an exception. It reflects both the historically adversarial relationship that the anti-immigration organizers who drafted it have had w/ state & local law enforcement, as well as existing political divisions w/in AZ, including among law enforcement officials. Some of the law’s harshest critics have been AZ law enforcement officials w/ long histories of conflict w/ Pearce &/or Arpaio. If the law survives, expect Arpaio to support lawsuits against his personal & political enemies in other law enforcement agencies.

    Joe, I think you’re right about the incentives. There are ideological & political as well as economic incentives to sue. Organizations like IRLI exist in order bring these kinds of lawsuits, & will do so even if they aren’t getting rich.

  16. Brennan says

    Joe S. You say that I "started with stating that a tort is not a suit against the government…. [and] then switched to a reference to the inherent nature of torts. This would be fine if you clarified the inherent nature of torts, but I don’t see how you did so, except to point out that the government is not a tort defendant, and that tort recoveries are inherently private

    That badly mischaracterizes what I said about the nature of torts. In fact, I said that "A tort is usually thought of as a civil remedy for a personal injury in which the injured party may recover compensatory damages from another private party." My definition is doubtless an imperfect summary of a vast body of law, but I don't think it's too far off the mark, either. It certainly should not be summarized as "a tort is not a suit against the government." The statue at issue here does not create a cause of action against private actors generally, requires no showing of injury to the plaintiff (or anyone else), awards zero compensation to a successful plaintiff, and merely imposes a relatively small transfer of funds from one arm of the state to another (with the possibility of some attorney's fees.) I don't see how this law is a "tort" (and I'm not sure what your suggested parallel is with the tort of nuisance).

    So Joe S. (or anyone else), can you either explain how this law really does fit my (actual) definition of "tort" or offer another definition of "tort" that does seem to clearly fit this law?

    Joe S. also said that "I think we have an honest old-fashionied empirical disagreement on your second point. You maintain that the tort reformers’ argument against tort law is that it often creates “disproportionate economic incentives for people to sue.” [and] … [Y]ou also maintain that the AZ statute won’t lead to much litigation."

    Actually, that's not my second point. You asked a question; I answered it to see where you would go with it. But I don't think that whether some tort reform argument could also apply to this law is particularly relevant whether or not this law creates a tort. Also, I didn't say that this law won't lead to much litigation — in fact, I think it may lead to a fair bit. But that's because, as you correctly point out, people love expressive litigation and this is a hot button political issue. The statute, however, doesn't CREATE a strong economic incentive to litigate it merely provides people an outlet for expressing their (often xenophobic) anxiety about illegal immigration. But, again, I don't think this is relevant to our discussion of the nature of the law.

    Finally, I note that nobody here is defending Kleiman's post against my criticism of it. Using this law's creation of a highly specialized cause of action against government agencies (and some governmental officials) in Arizona as an excuse to attack the tort reform lobby is just silly. Kleiman often has smart things to say; this is not one of them.

  17. says

    The capitalization of the text is odd. In netiquette, capitalizing whole sentences is rightly frowned on as SHOUTING; it makes a text harder to read, unless you were brought up in Russian, and makes a strident claim for attention independent of the interest of the content. Routine capitalisation also loses information: compare "state", "State", and "STATE". If the idea is to differentiate amendments, this can be done any number of other, calmer typographical ways, including nowadays with colour. Is Arizona's bad practice standard?

    • Mark Kleiman says

      I simply copied-and-pasted from the official website. I think the language is part of an amendment, and that the convention is to use ALL CAPS to mark added language and <del datetime="2010-04-29T15:09:55+00:00">strikethrough</del> to mark deleted language.

  18. says

    "Any citizen can sue any “official or agency” for having a “policy or practice” of failing to be mean to brown people…"

    I don't think that's fair. The law applies to any dark-complected persons, whether brown, black, olive or other.

  19. K says

    Hum. The AZ legislature already (late last night) has repealed some of the law's most alarming features, although not the one being discussed here.

    http://www.azdailysun.com/news/state-and-regional

    The editor of National Review, Rich Lowry, describes the changes as clarifications of what was already intended in the original law, but this is false. The changes are a significant retreat.

  20. Brett Bellmore says

    Yes, that's a change, not a 'clarification'. But if we're going to be honest on both sides of this, what really alarms opponents of the AZ law is not the prospect of discriminatory enforcement of immigration laws. Its the prospect of enforcement of immigration law.

  21. Barry says

    Brett Bellmore says:

    " But if we’re going to be honest on both sides of this,…"

    I won't say that you've never been honest, Brett, but if you had a dollar for every time that you have been honest here, you'd still have to pick your restaurant very carefully, to afford lunch.

  22. K says

    I think this is what passed last night:

    http://www.azleg.gov/legtext/49leg/2r/bills/hb216

    {I say "I think" because I don't know.)

    Contrary to what I said, there are some slight changes to section G above. (The sections are also re-lettered.) The term "policy or practice" in G becomes just "policy." The lower bound of the civil penalty is cut from $1K to $500. The reference to federal immigration laws is amended to refer specifically to 8 U.S.C. 1373 & 1644.

  23. Brennan says

    How poorly-drafted does legislation have to be be before it needs to be amended a week after it passes? Arizona answers the question.

    It looks like the legislation K located addresses one major problem in the law by eliminating government liability for having a police "practice" that limits immigration enforcement, e.g., responding to a report of a violent crime in progress before they respond to a reported immigration violation.

    The changes also appear to allow any resident of Arizona who believes that the police are wrongfully using race, color, etc. to enforce immigration laws to sue on the same basis as the pro-enforcement suits previously authorized. So now the local governments and individual police officers can be sued over the same policy by BOTH pro- and anti-enforcement forces. Wow. What a mess.

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