Last week, host Jeffrey Rosen was joined by Minnesota Attorney General Keith Ellison and Ohio Attorney General Dave Yost for a bipartisan discussion about the role of state attorneys general in addressing policing reform, protests, and other constitutional challenges facing their states today. This conversation was hosted as an online America’s Town Hall program. Hear more programs on our companion podcast Live at the National Constitution Center or register for an upcoming program—to watch live via Zoom and ask speakers questions in the Q&A—at constitutioncenter.org/townhall. You can also watch videos of archived programs on the National Constitution Center’s Interactive Constitution Media Library. This program is presented in partnership with the Center for Excellence in Governance at the National Association of Attorneys General.
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PARTICIPANTS
Keith Ellison was sworn in as Minnesota’s 30th attorney general on January 7, 2019. He served for 12 years on the House Financial Services Committee. Before being elected to Congress, Ellison served four years in the Minnesota House of Representatives. Prior to entering elective office, he spent 16 years as an attorney specializing in civil-rights and defense law, including five years as executive director of the Legal Rights Center. Ellison received his law degree from the University of Minnesota Law School in 1990.
Dave Yost became Ohio’s 51st Attorney General on January 14, 2019. After working as a Columbus Citizen Journal reporter, he began his public service career as Delaware County’s Auditor from 1999 to 2003 and County Prosecutor from 2003 to 2011. He also served as Ohio’s 32nd Auditor of State from 2011- 2019. Yost earned his undergraduate degree from The Ohio State University and law degree from Capital University.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was engineered by the National Constitution Center's AV team and Jackie McDermott, and produced by Jackie McDermott. Research was provided by Lana Ulrich, Grace Zandi, and the constitutional content team.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.
Last week, Minnesota Attorney General Keith Ellison and Ohio Attorney General Dave Yost joined me for a vigorous bipartisan conversation about the role of state attorneys general in addressing police reform protests and other constitutional challenges facing states today. Hope you enjoy. There are many insights and please check out our other America's town hall programs, which we run every week on our companion podcast Live at the National Constitution Center.
General Ellison you are at the center of the most closely watched case involving the police in America today, but arising out of the tragedy involving George Floyd in Minnesota, you're limited in what you can say about that case, but you've had an extraordinary background as a representative for Minnesota in the US House of Representatives.
And as a civil rights attorney, separate of specializing in civil rights and defense law. tell us about how your background as a civil rights attorney and a representative has influenced your approach to the Floyd case.
Keith Ellison: [00:01:31] You know, my background, I've got to go at least back to a man named Frank Martinez, who is my grandfather.
He was organizing Black voters in the 1950s in rural Louisiana. And he would, do fish fries or community meetings show up at church and try to convince people who have never had a chance to participate in democracy, that they really did have every right to participate in democracy. They signed up a lot of people to vote, and some of those people were ordered off their farm.
Some of them were threatened. Some of them were beaten. And he was, threatened and, and, and, and beaten himself, and even had, we, the, my mom telling stories about how they refused to sell him gasoline in the city of Natchitoches, Louisiana, because he was a, what they said, stirring up a fuss. And, he, they burned across, across the street from their house.
And they called my family's home so much threatening to kill my grandfather, that they sent my mom to a boarding school because they couldn't afford for her to be there if some tragic event happened. So my family, my mom, my, everybody, they said, look, we don't want you to grow up to be angry. We want you to grip to have a sense of responsibility.
And my mom, you know, was a social worker for many years. She did juvenile sex offender group. Where the judge would send her cases. and if those kids, made it through the program, they could leave it without a juvenile adjudication. and she spent her life doing that. She worked on education reform lobbied the governor in Michigan, where she moved and was able to do a lot of things that way.
So that's the conversation I grew up around and my dad is a psychiatrist he's 91 years young now. And, he's still is very active and interested in what's going on in the world. And personally, it was, I don't know if it was a foregone conclusion that I would do the work that I'm doing, but I kind of felt that field, that it's sort of something that I, do quite naturally.
And, have, you know, I had left, I was in Congress and enjoyed being there. I never got sick of Congress. Never said I'm done with Congress. I just thought that being a state attorney general was a better job and would put me in a position to be of greater use to my neighbors. I bet you General Yost agrees with me on that.
that, you know, you can do a lot as an attorney general that, it's just tougher to do as a member of Congress. basically because you've got to work with, you know, 435 other people in the house, a hundred other people in the Senate. As attorney general, if you feel that the law, requirements that alarm that you can act.
And, and, and so, I was, I got into the work, and I did it because I really feel that the government, our democratic government, and I don't mean parties, partisan and small D democrat. Should should really be on the side of promoting the general welfare, protecting human rights of all, should make sure that people who have individual rights, should make sure the government leaves people alone.
And, you know, whenever we do live in a society where the Constitution requires that the government not impose upon people, when it, when it should not. And, you know, so these, so these issues of civil rights, human rights, civil liberties, and policing are issues that I come to, sort of very, very naturally, and just really honored to be able to talk about those things today with you and General Yost.
Jeffrey Rosen: [00:05:07] Thank you for sharing that inspiring story and your remarkable background as a lawyer and representative. Wonderful to hear about your dad, the 91 year old psychiatrist. My dad is 93 and he's also a psychiatrist and very different backgrounds. We've got some great that we've got them both. General Yost, you also have a really interesting background as a County auditor, and then as a journalist as well. first tell us what the County auditor does and then tell us whether your background as a journalist in any way influenced your approach to your job. and, and then give us a sense of what the state of the debate about the police in Ohio.
Dave Yost: [00:05:46] Thank you. I was a newspaper reporter for the old Columbus Citizen Journal, which was a Scripps Howard paper and the, the motto, it was a quote from EW Scripps, founder of the chain, was give light on the people will find their own way. And that really is, That motto kind of sheds light on my career path.
I probably still be a newspaper reporter if, My paper, hadn't gone out of business in 1985, but, I've always been about finding the facts, finding what is objective true and fighting for justice. so in my time as a newspaper reporter later as a, an attorney in private practice, and yes, I did, criminal defense work for awhile, early on in my career.
through my time in public service as a County auditor, which is basically the fiscal officer for the government in Ohio County government in Ohio, through, my years as prosecuting attorney and now into state service, it's always been about holding power accountable and in shack, and doing what's right.
Finding the truth and, and fighting for what's just. My dad is not a psychiatrist. although he's still with us, we're very proud of him. grew up in a family of six kids. he got, Promoted to from Columbus to Detroit and didn't want to go with his company. So he quit and started his own company.
one truck, one, man, and built it over 35 years to a successful business that employed more than 300 people around the state of Ohio. I learned a lot about integrity and honor. And hard work, watching my dad built that company and I'm honored today to be attorney general. And I agree with you, General Ellison, being attorney general, gives one far greater reach to do justice and to seek the common good than, being, a single Congress person.
Although I value and honor their work, this is immensely rewarding.
Jeffrey Rosen: [00:08:04] That's a remarkable statement that both of you made and friends in the audience, just let's pause to say how significant it is that these, these public officials, a former representative says that being a state attorney general is more significant in terms of the impact you can make.
And that's now what we're going to explore. As we dig into these two central questions of defund the police, and also the standards of excessive force that officers are subject to. General Ellison, the Minneapolis City Council on June 26th, unanimously advanced to change the city charter to allow the police department to be dismantled in face of widespread criticism after the killing of George Floyd. Tell us about that proposed amendment, which would replace the police department with a new department of community safety and violence prevention. Is it likely to pass? Does your office have any role in supporting or opposing it and do you think it would be a good idea to defund the police?
Keith Ellison: [00:09:00] Well, let me tell you this. I think that, what I've done is tried to interpret what I hear community and some of the local officials to be saying, I will not claim that I've been the author of this call, but I have listened to it. And I think that. What they're saying is that, look, this is about more safety.
It's about well, greater safety. Right now. We don't, we clear about one in four rapes in Minneapolis. we, right now, we there's a lot of gunfire in North Minneapolis, South Minneapolis. We really, we we're glad it's not as bad as some places, but it's not nearly as good as it should be. And it goes on, with some degree of regularity.
we have domestic violence. We have theft, we have fraud. We have all kinds of problems. This is not designed to take away an agency that addresses these things. It's designed to be more effective and simultaneously reduce human rights abuses. So that's why, the charter is, is it's. They're not going to call the institution the police department, they're going to call it, the department of public safety and violence reduction. But they will have people who investigate theft, domestic violence, sexual assault, all these things, but they will reorder it with a different set of priorities. and so I think that when you hear dismantle the police, obviously, that's somewhat, alarming it.
And as I talked to the people who proposed that kind of label, They meant to be provocative. Why? Because they've been calling for reform measures for 20, 30 years and it felt that they really haven't gotten anywhere. A few things we'll have training here, civilian review authority, then that got denuded.
And so they're really of a mind now where they want to say, we've got to keep people safe, but what's more important, but, but in line with that mission, We've got to, look at some of the fundamental historic suppositions that print per hip, prevent us from being able to do that as effectively as we could.
And so, they've begun a year long series of conversations there. They have a trip planned to go visit Camden, New Jersey, which did it dismantle it's the police department and then reconstituted another agency that does the same thing. and they've had some very good numbers. they, they, it's not perfect and Minneapolis is not gonna, I don't believe, just, you know, clone kind of the Camden experience.
It'll be a Minneapolis expression, but, at the end of the day, that really is what's going on. and by the way, you know, there are a number of police officers who have said, look, I want to be on a force where we have the trust, respect of the public. We don't want to be a part of an institution where the public, who we rely on does not that, you know, feel that we're doing what we're charged to do.
And so we have not, we've gotten a lot less, opposition then you might guess. but I do agree that the people who've made the proposal need to put more flesh on those bones because having a provocative tagline is not going to get it done. But, did, but they've stepped forward in begin to really put some greater definition.
Jeffrey Rosen: [00:12:30] That's fascinating to learn that Camden is a model for Minneapolis. Chief Charles Ramsey joined us for a program last week. And the Constitution Center is working with him to train Camden officers, to learn about the Constitution by talking to school kids in Philly. And we'd love to work with both of you to do that kind of constitutional training as well. And very interesting also to learn that you're thinking of changing the name of the police department, Ralph Hendrickson in our Q and A box says policing implies force. Could we come up with a different term for the work of the police department? And you're suggesting that that's exactly what Minneapolis is doing.
General Yost. Tell us about what Ohio is doing. Governor DeWine has laid out a series of proposals that he's asked lawmakers in Ohio to pass. Including creating a state board of law enforcement officials and members of the public licensed police officer's like teachers and lawyers, not allowing officers to use choke holds on people except in life and death situations and not allowing police departments to conduct internal investigations.
There are other proposals tell us about them and what you think would be the best path forward in Ohio.
Dave Yost: [00:13:38] Well, the most important thing we can do is to have reforms that allow us to, remove the few bad actors that are on police forces. Look, I, I got to know, police officers. Very very well.
During my times prosecuting attorney, I was in a County that, was small enough that I, along with my staff tried cases. So I got to know these folks, know their work, see how they conducted themselves on the job. And. There is no doubt in my mind that the horrifying videos that we see popping up from a cell phones here and there, and, in most of our big cities, certainly are really the, still the exception.
Now they're horrible. And we need, to make sure that that stops, General Ellis and I agree on that. But the fact of the matter is the vast, vast majority of these officers are a good hearted, patient disciplined, professionals who are doing a very difficult and dangerous job. there's still evil in the world.
There's still people that are trying to harm others. and what we have is a very few people who are not fit for the job, who are acting out. And we see it in the disciplinary records. It didn't happen Oh, over and over and over again. And because of civil service laws, or collective bargaining agreements, police departments who not able to perch their ranks.
It's the only profession in America that doesn't have a licensing regime and where it's almost impossible currently to get rid of bad actors. So among the many things that the governor and I have proposed, I think perhaps most important is the licensing regime that allows us to get rid of the few people that are the sources of those appalling videos.
And yes, let's get better at training and yes, let's clarify, use of force doctrine. let's make it uniform and not a hodgepodge that differs from jurisdiction to jurisdiction. but at the end of the day, the most important thing that we can do is get rid of the few bad actors so that they, good actors can resume their day to day work.
I have to on a personal note yesterday, I traveled to Toledo, Ohio, a 26 year old officer answer to call on July 4th, and Toledo, as personal safety check that it was sent out because there was a report of a man who was seriously drunk in public and his job was to go make sure that person was safe, get them services if they need.
It was that he was not trying to affect an arrest. He was gunned down in cold blood. and yesterday I was at his funeral and met his young widow and his two little boys that is the face of law enforcement, men and women who are going out, trying to do the right thing, trying to help and make their community safe, showing valor every time they put the badge on their chest and it often turns into a target on their backs.
We need to not tar them all with the same brush.
Jeffrey Rosen: [00:17:13] Thank you for that story. And thanks for also emphasizing your proposals with Governor DeWine, including the licensing requirement that picks up on a comment that Richard Finch has made in our Q and A box. Many other countries require police officers to require much longer training some for almost two years, might that translate to a different outcome for the officers in the community? General Ellison, in the comments that you have been able to make about the Floyd case you've suggested that the case won't rely on the question of qualified immunity, because it's not a civil issue, but you did say that officers have some allowance to use deadly force and will be interesting to see if that's brought up in the case. Can you describe the constitutional standards for deadly force?
What is the Supreme Court said about those standards? And should they be changed or reformed either by courts or legislatures?
Keith Ellison: [00:18:05] Yeah. So the case that we rely on now as a constitutional, U S Supreme Court case called Graham versus Connor, it's a case that, basically says that you have to use reasonable force based on what a reasonable officer would do.
in a situation, I think that there is room to look more carefully at this. and I think that, California has already, you've taken some steps forward, to change their use of force, where they have required use of, the standard of sanctity of life that you should avoid use of force where you can, that it should be proportionate.
And necessary, as opposed to simply authorized, you know, the, the fact is so much of how, officer will apply that use of force, you know, is determined by the culture of the community and the department that they're in. the, officers do have the authority to affect an arrest, which most people don't want to be arrested.
So they have some authorization that you and I don't have. but at the same time, those uses of force have been construed, in, in very different ways, over different times in different places. So we do need standardization. And I think that, you know, Graham versus Connor actually wasn't approved and on what the law was about for, because then we had a case called Tennessee versus Garner, which authorized the use of deadly force on a fleeing felon.
And it was, and, and that case, that, that, So many officers relied on, in fact, that led to some tragic results. and so I think that use of force, policy, something that is being considered very carefully by legislatures and departments all over the country. and there is a growing trend towards saying, you know, even if you may be authorized to use force, if you don't need to, to protect yourself and others, You shouldn't.
you know, there's a case that was described to me by a leader, police leaders in Camden, where somebody actually had a knife in a room and the officer said, put the knife down. The guy didn't do it. I know, situations where the officers might go in there and disarm the guy and by shooting him what they did is they closed the door and call some mental health professionals said he's contained.
He's not hurting anyone. Even though he does have a weapon, he did brandish. We don't necessarily need to use that level of force, because even though it could be authorized under Graham, it's not necessary, it's not proportionate. and we do want to remember that so often when officers use deadly force, there are situations where the officer really by was literally doing nothing and was attacked perhaps in the situation General Yost just mentioned a moment ago, but there've been other situations where we've seen. Where the officer's actually saying, you know, move and the guy doesn't move fast enough. So the officer approaches the guy and then the guy doesn't move fast enough. So the officer puts hands on the guy and starts putting them down.
Then the guy makes a furtive movement, which could be interpreted as a threat. And then the officer uses deadly force. The point is let's not bring the noise if we don't need to. Right. Let's use restraint. When restraint is the smart thing to do to keep everybody alive. And so this is a training challenge.
This is a challenge matter for the state legislatures and some matter for departments. And I will tell you this, you can write whatever the policies you want, if you don't do what General Yost said, which is to make it so that the department can cleanse itself of people who don't obey the rules. Those pretty words are not going to matter at all.
So I would join General Yost and agreeing that we need to look at collective bargaining agreements and other sort of instruments to make sure that the chief really is the accountable source for discipline in that department. We've seen situations in Minnesota where officers who have, I mean, they've, they've done a lot of bad things to a lot of people, excessive force people in custody.
People can find people handcuffed. And then the, the chief fires them and then the arbitrator puts them right back on the force. What message has that arbitrator just sent to everybody else? The good officers that General Yost was talking about they're demoralized. They're like, wait a minute. Where's the standard of behaviour around here.
We had 12 officers write a letter, criticizing the behavior of their fellow officer in the George Floyd case going public. That's a big deal. And so what, what we do need for the sake of good officers, we need to make the transition to rewarding the good officers and written ourselves as the ones who are not fit for the job.
Jeffrey Rosen: [00:23:05] Thank you for teaching us about two important cases. Graham v. Connor and Tennessee v. Garner, the Graham v. Connor case says that the question is whether the officer's actions are objectively reasonable and objective reasonableness will be judged as you said, by the perspective of the officer at the scene, not in hindsight, and it can include questions like purport, whether the action is proportional and necessary, not just authorized.
That's a standard that California. You said, is thinking of clarifying. And then you told us about the Tennessee and Garner case, which I teach in criminal procedure. As you say, it's an incredibly reasonable case and it involves the fleeing felon and the circumstances under which officers can use deadly force to stop fleeing felon.
And the Supreme Court in that case said that a police officer can use deadly force to prevent the escape of a fleeing suspect. Only if the officer has good faith belief that the suspect poses a significant threat of death or serious physical injury to the officer. We'll post both of those cases in the chat box and General Yost, tell us about your experiences with the Graham and Connor case in Tennessee and Garner and your understanding of what the national standard, the Constitutional standards for excessive force are. And whether you think those where you think those standards should be reformed by courts for legislatures?
Dave Yost: [00:24:32] Well, General Ellison has adequately, provided a cliff notes on those two cases. and you know, the, one of the developing arguments that we have, is qualified immunity, which shields, not just officers, but public actors and the people performance of their public duties and it's a judicially created doctrine.
there's some thought that the Supreme Court may revisit that. at some point there were 19 cases, seeking cert, this last term and none of them made it onto the short list to be decided, but I don't think that argument is over, but I'd like to go back to something that General Ellison, talked about, which is the minimum force necessary.
And that is in fact in Ohio, the standard that we train to. but this gets a little murky and here's where we need to think very carefully about this, because the question then becomes, what is, what are we talking about? If are we talking about a criminal action, and whether a criminal prosecution of, of the officers should result, are we talking about ain 1983, civil rights action, which is a civil, matter with a lower standard of proof. are we simply talking about, job action and discipline for violation of work rules and policy, because all of those present a different issue, and the, the. The devil, if you will, is in the question of necessary and whose judgment is necessary.
And the current case law, it is a reasonable officer, a kind of standard, the challenge with, trying to make that the uniform standard, is we can very quickly end up with people who are having to make split second decisions on the street without enough, information, without being able to see.
Maybe what a surveillance camera block down the street from a different angle shows. They've got what's in front of them and they have to decide right now because their safety or the safety of another member of the public is in jeopardy. Are we going to dampen their ability to react to that crisis by, for example, exposing them to criminal prosecution.
By saying later, after we've looked at all the body cam footage and all the surveillance footage and talk to all the witnesses and gotten all the points of view out there, that somebody with the luxury of 400 hours. And that's about what our average is in Ohio. To on a lethal use of force investigation, 400 hours of collection, and the ability to sit in your air conditioned office in a soft chair and decide what was necessary.
and I think that that is a very dangerous thing for us to put on the backs of the folks that are out there protecting us. So train to that. Yes. and that's why I think I'm coming back to, our, proposals that the Governor DeWine and I, why I think the, reform proposal to have licensure professional licensure of police with rules of conduct is so important because the right place for that, level of, review I think is at the licensing board, not in a court of criminal law.
Now let me stress that there are instances I've prosecuted police officers. for wrongdoing and my career, right now in Cuyahoga County, I have a team that is working on, a variety of, physical abuse cases of inmates by corrections officers. We add a, a horrible incident, where the, inmate was actually restrained, in a restraint chair.
They were strapped down, And were beaten. We had another one with a restrained inmate to, one of the CO's sprayed OC spray into her eyes while she was already strapped down, clearly inappropriate uses of force. Hmm. We're going after them. So I'm not now one of these folks that doesn't think there should be accountability, but we need to think very carefully.
About the dangers on the street and a life and death mission that our officers are on as we consider these questions.
Jeffrey Rosen: [00:29:18] The questions you raised about performing qualified immunity, track those raised by the Ohio Fraternal Order of Police who are on board with a lot of the reforms that you and Governor DeWine have proposed, but say that form of qualified immunity would have a negative impact on the recruiting and potential of qualified people from across the country. General Ellison understanding that qualified immunity may not be at the center of the Floyd case. can you share thoughts on its well form qualified immunity, as General Yost said gives officials performing discretionary functions, immunity from suit, unless the plaintiff can show the official violated, clearly established statutory, or constitutional rights of which a reasonable person would have known.
As General Yost said, Justice Thomas on the Supreme Court just a few weeks ago, said the court should revisit that standard, even though it declined to do so, so far, do you think the standard should be revisited and what effect would that have on both law enforcement and on police misconduct?
Keith Ellison: [00:30:18] Yes. I think that the very strong production of the existing qualified immunity law creates moral hazard.
I think that, it's so protective that it allows people to not have to operate at their very highest level of professionalism. you know, and I think statistically, if you look at the history of qualified immunity, when the standard was lower, you, you saw more accountability when it was raised and as General Yost says it to do, it's a judicial doctrine.
You just saw less accountability. I think if you want it, the goal is to have the most top performing professionals you possibly can get. You've got to create, you've got to have an environment where people know that there's accountability when they violate the rules. If you say that you pretty much can do whatever you want.
and you got to really, really, really go way over the line before there's going to be accountability. Then, I mean, the bottom line is that you're going to get more bad behavior. It's simple as that. I mean, and, and so often we are, we are not talking about these, you know, dark alleys, furtive movements, quick, split second decisions.
Those we can all kind of agree, you know, you know, an officer needs discretion in that situation and you're not always going to be right. But you know, what about the situation where the 75 year old man was pushed to the ground in Buffalo? What about that? Is that okay? Oh, well, you know, but they first said it was actually, he tripped.
Then they say that, that, that, the video show different. I mean, there's, there's so many that we have tape where officers are spraying chemical agents out of the car and, and people who are just standing there. So what I want to say, you might say, well, those are clearly wrong. Well, are they. I mean, if an officer says, Oh, I thought I, I, I thought that person could be a threat.
I mean, you could literally come up with anything. I mean, as an attorney, it's your job to formulate arguments on behalf of your client. Yeah. As long as you're not lying. Now, of course you can, you can stretch credulity, but I mean, the bottom line is. The problems that we're facing are not so much those decisions that reasonably people can agree.
The officer needs discretion on and you can't just second guess them. That's not really where the problem is. The problem lies back where it's a little clearer to all of us that this behavior isn't right. And yet it gets protected from civil liability because the standard for qualified immunity is so high.
I think that we would have better professionals better. We would reward the good officer much more, often if we raise that standard and expected officers to perform at a high level, and, and then say, yeah, those, those dark alley situations split second decisions situations. We can all agree. You need some room, but not on some of this other stuff that we see.
Jeffrey Rosen: [00:33:26] General Yost, any responses you'd like to make. And then I'll introduce another question.
Dave Yost: [00:33:31] Thank you, I would like to respond. I, I. Really question, whether there is a, a moral hazard out there for our officers, because they feel like they can get away with anything. maybe it's a difference in our backgrounds, but I talk with a lot of police officers oftentimes in relatively unguarded situations.
And they're very concerned about getting sued, and very concerned about the consequences of that. They don't feel at all that they're, invulnerable from civil liability. That goes back though to the point that I made at the beginning, which is while I agree with the, some of the things that, General Ellison talked about a spraying OC spray out of a police cruise.
Clearly not a, an appropriate tactic. And not one, we would train in Ohio. and I can't imagine any officer would defend that. we need to be able to remove officers who would exercise their judgment in that, or discipline them, perhaps, but the, At the end of the day, I, I don't believe that removing qualified immunity is going to happen.
a good effect and there could well be unintended consequences. The better approach if we are really concerned about qualified immunity is perhaps tweak the standard. I'm not sure that, we, we couldn't leave it in place with something less than what amounts to a willful and want and, standard, you know, that, that, that couldn't be tightened up, but I, I'm not in favor of .
As a practical matter of eliminating qualified immunity. Well, that's a little bit awkward for a guy like me to say who's such a, critical judicial activism, most judicially created doctrines. I am not a fan of.
Jeffrey Rosen: [00:35:28] Thanks for reminding our audience that the qualified immunity doctrine, which came from cases like Pierson and Ray in 1967 and the Harlow and Fitzgerald case was judicially created Harlow and Fitzgerald was 1982 , Justice Thomas has argued that it. Isn't faithful to the original qualified immunity statute, and therefore should be reexamined. So, it's a complicated debate that we will revisit at the Constitution Center. General Ellison, we have a bunch of questions about the intersection of the First and Second Amendments.
Kim McGee, who is an assistant attorney general writes by email it's a commonly held belief in the US that an individual has a right to protect, preserve his real and personal property. For example, I saw this defense invoked regarding the St. Louis couple brandishing weapons from their lawn and porch, as protesters went by, that's a belief that country needs to explore.
How does this right to protect, preserve property, impact the right to peaceful protest and the right to carry and use a gun?
Keith Ellison: [00:36:28] You know, this is a interesting question, right? Because, you know, I, you know, I, nobody is going to say that if you're going to hurt another person or damage their property, that that should be protected activity.
It's not. We know that that's obvious. The real question is if you are lawfully protesting, if you are protesting, for about an injustice that you perceive to be a serious matter in our, in our community, like, you know, excessive force and police brutality really is. I mean, then, then those folks were standing out there, brandishing firearms.
I mean to me that that's a concerning thing because in my view is that yes, you may have a First Amendment right to express yourself. And you may also have a Second Amendment, right to have firearms on your own property, or if you're licensed to do so, or if you're authorized by law to do so. But at one point, are you not simply menacing another person, you know, and what right.
Do you have to do that? You know, if you have a gun it's it's you have it out. You know, it's loaded and people are peacefully protesting. You know, that, that raises some very serious concerns to me. I don't think that the First and Second amendment, were ever designed to shield what essentially amounts to a terroristic threat, you know, there are some mosques, you know, Muslim houses of worship, around the country, including in Minnesota.
And there were people who'd go out and protest outside of them. Saying, you know, Islam sucks or whatever, they say some horrible thing. And they're probably protected to say that they probably have the right to say that, and they may have the right to have a gun, but when they put those two things together and go outside a house of worship where people are lawfully, behaving it, have we, you know, are we not pushing the boundaries of what those two rights allow for?
I'm very concerned about that. I think that, you know, the fact fact is that, you know, the Second Amendment is a very interesting, piece of jurisprudence. and I think that we have strayed very far away from the original intent of that particular provision. I think that, and even if in the Heller case, it, you know, basically Scalia said it's.
You know, the average person can and cannot have that an average gun. They can't have an M16. They can't brandish it against other people. I mean, unless they are legally authorized to do so. And yet now we're in a situation where we have folks bringing an AR-15s in the state legislatures, calling out the governor and, insulting and, and threatening ways all under the auspices of the First and Second Amendment.
So I think that this is something that we're going to have to really, really grappled with because I, I, because I think that, folks have gotta be able to express themselves about matters that they think are important. That's how change happens. We couldn't have a civil rights movement if we were to not come to an evolved sense of what the First Amendment protects and what it doesn't protect.
You remember Sullivan versus New York Times, that's a case where the original case where they were suing civil rights activists, because there was something in an ad that wasn't absolutely precisely right. And they sued based on a theory of defamation. And then the Supreme Court ultimately said, wait a minute.
You know, if you know, you've got to prove actual malice. If you're talking about public figures or public officials, And public officials in the first, in that case. And if you can't prove that it was knowingly said as that falsity, then, you know, that's just the cost you paid for putting your name on a ballot.
And so, I mean, we've, we have looked at the contours of the First Amendment and Second Amendment in the past in order to accommodate, you know, the, the people's right, to be able to say what they feel is critical is true and helps advance our society. Towards a higher level of equality and justice.
So those are some of my thoughts. on that matter, I'd be curious to, be in the conversation.
Jeffrey Rosen: [00:40:57] This is really exciting. I feel like I'm in a constitutional law seminar and we're talking about the landmark cases involving the Fourth, First, and Second, and then, then General Yost, General Ellison just mentioned the Heller case.
And as he said, Justice Scalia in that case identified four exceptions to what the court held was an individual right to keep and bear arms. He said nothing in the opinion should call into question longstanding prohibitions on the possession of firearms by felons and the mentally ill or laws forbidding the carrying of firearms in sensitive places, such as schools or government buildings or laws, imposing conditions and qualifications on the commercial sale of arms, share with us your thoughts on the intersection of the First and Second Amendments. Does Heller strike the right balance or as Patricia Panziera asks, can the remedies that the generals are discussing, be accomplished without gun regulation and constitutional reforms.
Dave Yost: [00:41:55] So let's start off by recognizing that something that just because one has the right to do something, it doesn't make it a wise thing to do.
The folks that have gone down to ohio is an open carry state. It's legal to carry a firearm. unconcealed without a permit in Ohio, The folks that would come down to the state house to protest or counter protest with an AR over their shoulder, have that right to do so. and that's not menacing.
Menacing is not a subjective thing where you feel that somebody is acting in a way that makes you feel uncomfortable. Menacing is a criminal act and it requires an overt act to confirm a threat, and simply carrying a firearm. Doesn't do that. now again, while I have a concealed carry license, and support the Second Amendment and been a hunter and an outdoorsman my entire life.
I, wouldn't carry a firearm down downtown to a protest. If I were to go to one, I don't think it's wise. so there's a difference between wisdom and what one has constitutional right to do something. The intersection, of the First Amendment of the Second Amendment, is a, an interesting one. but the issue that was raised with regard, so for example, if a legislature were to pass a law, a statute that said that, guns are forbidden during protests on state house grounds.
I think that that falls within Justice Scalia's, in, thoughts, in, in the Heller decision, as saying that I want to see that law, but, I think that's something, for example, that could happen, constitutionally. But the St. Louis case was raised. and it's important to realize that, those people, we're protesting on private property.
You have no First Amendment right on somebody else's property. you can take to the streets. You could say whatever you want. but if you are trespassing, if you are on private property without we have to do so, The your First Amendment, right. Is not enough implicated there. yeah. And while I would not have acted the way, those two citizens in St. Louis chose to, particularly I would have avoided pointing a rifle at my wife's head, as I was holding it, the, It is hardly a menacing threat. when you're standing in front of your property and people are encroaching upon your private property, to, be holding that, that weapon.
Jeffrey Rosen: [00:44:55] It's time for sort of closing thoughts on this completely rich and grossing discussion and General Ellison the first round is to you as you see what's going on in Minnesota and look across the country. What are the reforms either legislative or constitutional or legal that you think are most promising and most important to ensure effective policing and a more perfect union?
Keith Ellison: [00:45:26] You know, if I may just say so I think we need to acknowledge as a society that we have a problem, and I'm very happy to see that many people from a diverse set of, perspectives, you know, agree that there's office, problems.
I mean, I'm glad that the General Yost mentioned the reforms, he, and, and, and Governor DeWine working on, we come from different political points of view, but there is some consensus that we gotta do something cause the situation we have is not serving us as well. and, I also just want to say, you know, that this problem is long standing.
Did, I don't know if you remember, the sociologist, the sociologist who, did the doll study in a Brown versus Board of Education, that particular sociologist was brought to speak at the Kerner commission in 1968. And when he was giving his presentation, he said, you know, I appreciate this Kerner Commission report.
But I gotta tell you it's very similar to what the 1943 report that was written to the McCone Commission report that was written a whole host of other reports that were written, where what we see is, you know, often, not only, but often, Black and Brown persons in very, disturbing conflicts with members of law enforcement.
And we keep on going through this cycle and we've got to ask ourselves if the problem is this chronic, why do we keep having it? And don't, we need to do something differently. So I'm glad we are at sort of a moment of inflection sooner or later, George Floyd's case won't will be something that happened a long time ago.
And I hope we use this moment while it's still fresh and urgent to really make those changes that we've been talking about. And I'm going to mention some of those now. I just wanted to say, I'm proud to be in this conversation cause it helps propel us toward really solving a chronic sustained problem.
Martin Luther King talked about police brutality. So did Malcolm X by the way. So did the Black Panthers. These are people who are very diverse in their political approach. We all agree on the essentialness of the problem. You know, I will, I will mention, that there's a lot the history here, but whether you talk about the Stonewall Riots, where LGBTQ people rose up to kind of assert their rights, that started with a bad interaction with policing, or you want to talk about Jimmie Lee Jackson killed by Alabama state troopers, which led to the movement for the voting that culminated in the Voting Rights Act.
This is a problem, and we got to deal with it. Thank you for doing this conversation. What are some of the things I think we should do? Number one, I do agree that we've got to create an environment where officers who violate departmental standards violate the law, violated the criminal law are fired.
We've got to create that environment. And the truth is that if you were an officer and I will agree with a General Yost, there's a lot of great, great Americans on police departments, but you know, you gotta ride next to this thumper who, if you were to tell on him, you're going to have repercussions on the job.
We've got to create an environment where officers can expect that if they report a violation of departmental or policy or law, that those people are going to be handled. And that you, you will be able to work with people who you can actually trust and obey the law. We've got to reform the system.
And that means Dylan. I think we should prohibit collective bargaining agreement provisions, which prohibit, which deny the chief, the ability to administer discipline, including discharge. Now I do believe in a due process, the officer who's discharged should be able to appeal to the city council, to the mayor, somebody public but not a nameless, faceless arbitrator who doesn't have to answer to anyone.
Number two, I think we need to, have investigation and prosecution of police outside of the normal process of criminal and investigation and prosecution. Why for the reason, that General Yost mention these folks, they go hunting together. By the way, I'm a hunter. I love it to hunt pheasants and turkeys and General Yost, if ever you want to do it the game. But my point is, if you're hanging out with these guys in a deer stand all weekend, and then on Monday, one of them is accused of doing something unlawful or in violation of a departmental regulation. Yeah, there's no way you're not going to, you know, sort of like see it their way a little bit, or be inclined to, it's just human.
Let's take the human element out and say that the state bureau of criminal apprehension is going to be the investigator and maybe the attorney general or some other office is going to do the prosecution. That way we can have a little bit more comfort that it will be done, without the normal, human element of familiarity.
Another item I would say is that we, we do need to ask ourselves, how can we not invest in housing? Cause we really haven't, not invest in health care for everybody. A lot of people are still uninsured, even after the Affordable Care Act, not invest mental health, not invest in all these things. And then tell the cops, you go deal with it.
I mean, we, as a society have failed the police as an institution. Because we take every social problem that we don't want to deal with and say, cops handle it. And then when they go shoot somebody and they're not supposed to, or choke hold them to death and they're not supposed to, we're upset. We have, we have all kinds of uprisings and we're upset and we want reform.
What if we took the burden off the shoulders of the police and said, we are going to, we're not, you're not going to have to arouse homeless people out of the park. Cause we're going to give people homes to live in. Well, you're not going, we're not going to ask you to arrest people over a fake 20, because we're going to have folks who do those kinds of property crimes that, you know, don't involve our men with guns.
you know, having to go deal with that. We're going to, you know, deal with the problems of society that will lead. We're going to deal. We're going to have a real mental health response for people. So that officers, a 24 year old guy who got out of academy a few weeks ago, isn't going to be asked to deal with somebody in autistic meltdown, which is what we're asking them to do.
Now it's not fair. So, those are just a few ideas for now. And again, I just want to thank, the, the, the National Constitution Center and General Yost for, and you, Mr. Rosen For a great converstation.
Jeffrey Rosen: [00:52:14] Thank you so much for those eloquent final thoughts for invoking the doll study in Brown vs. Board of Education by Kenneth Clark, some have called the Floyd case, your Brown vs Board of Education and a new Brown for the nation.
And we're all watching closely General Yost. The last words are to you. Your closing thoughts for our great audience about what legal, constitutional, or judicial reforms you think are most promising for achieving fair policing and a more perfect union?
Dave Yost: [00:52:49] Well, general Ellison, and I actually agree on some of those things.
The police licensing, independent investigation and prosecution are things that we've proposed here in Ohio and further, We need to do a better job of training. we need to fund training, or we need to fund the, local, officers because when we take somebody out of service to train, the police department has to fill that, that, that shift, it takes seven officers to have one 24 hour shift, seven days a week, 52 weeks a year.
so taking people out of service very quickly has an impact on the street. But I, there's two things that I want to mention in closing as closing thoughts. the first is the defund police issue. yes, let's bring in, partnership splits, do what we do in Columbus, for example, where there's actually a specialized team of 10 people, five officers and five mental health professionals that respond to the mental health type calls, which certainly are on every police department's docket. but the notion that we're going to defend the police, words matter, defund police means to take the money away from police. And that means that we're going to have less resources to accomplish those functions.
Why, why do we even have government in the first place? Go back to Thomas Hobbes and the natural state man, a nasty brutish and short he said, in the natural state of mankind humankind, the strongest take from the weakest, your person, your family, your property is not safe. and the reason we have government is to preserve that, to have public safety, to have the rule of law, because there are, there is evil in the world.
There are people that want to take your stuff, and if they can hurt you or enslave you, they will . that is the first function and most important function of the government. I understand that it's a sticky hashtag, but look, the City Council President of Minneapolis when asked about this by CNN affirmed that defund police means defund police.
She said that she envisions a police free future. I don't want to live in that kind of a city, because it will be anarchy and you'll have a lot more than that couple and St. Louis out there with firearms on the street. It's not a place we should go. Me Too movement didn't mean? Yeah. I sympathize with what's happening to those women.
To Me Too, movement happened because words matter and women were saying what happened to those women with Harvey Weinstein? Yeah, me too. That happened to me too. That's why it was so powerful and words mean something. No means no. And defund police means defund police. It's a, it's a dangerous idea. but finally, let, let me conclude by saying, I imagine some of the people on this call saw a video of a young African American man in his teens.
Talking about the rules that his mother taught him for surviving in the world. And the video was him reciting these things. You could tell that his mother had told him this over and over and over again. always get a receipt or a bag when you're in the store. Even if it's something just as small as a piece of gum, don't look at a white woman too long.
Don't go out of the house without a shirt, things that I would ask my friends in the majority community. Did your mom teach you those things? Things that rules that assume that you start out a suspect that you're going to be blamed? My mom didn't teach me that stuff. I guess that most of my friends who are white didn't have that lecture from their moms about keeping the hands on the steering wheel at 10 and two, if they get pulled over and to ask permission before they get the driver's license out of their pocket, that video, that young man's testimony was proof beyond a reasonable doubt that racism not only exists in America, but that it intended or not is endemic enough that it's a fact of life for those United States citizens of color.
And as we're talking about police reform, I think it's important that we recognize that we don't have fundamentally a police problem. Here. We have a societal problem that has a law enforcement component, and it's time that we change hearts and minds. perhaps we can have another discussion, some point in the future on how we might do that after all this time.
But I appreciate the opportunity to be part of this conversation.
Jeffrey Rosen: [00:58:12] Thank you so much General Yost for those closing thoughts and we would be honored to have another conversation. And I am so grateful to both of you and to the National Association for Attorneys General for starting this great partnership that bring together attorneys general of different political perspectives to discuss areas of agreement and disagreement about the Constitution. It is extraordinarily educational and very illuminating, and it is very meaningful for the Constitution Center to be able to host the conversations. So friends, thank you all for joining. Thanks for your great questions.
And please join me in thanking Generals, Yost, and Ellison for a wonderful conversation. Bye everyone. Thank you.
Today's show was engineered by the National Constitution Center's AV and produced by Jackie McDermott and Tanaya Tauber research was provided by Grace Zandi and Lana Ulrich. Please rate, review, and subscribe to We The People on Apple Podcasts and recommend the show to friends, colleagues, or anyone who may enjoy a weekly dose of constitutional debate.
You always remember it through the National Constitution Center is a private nonprofit. We rely on the generosity, passion, and engagement of people from across the country, who are inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member of the constitutioncenter.org/membership, or give a donation of any amount to support our work in putting this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
