The Comedy Cellar: Live from the Table - Jacob Sullum

Episode Date: July 24, 2020

Jacob Sullum is a senior editor at Reason magazine and a nationally syndicated columnist who writes about drug policy, criminal justice, and civil liberties. He is the author of For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health (Free Press) and Saying Yes: In Defense of Drug Use (Tarcher/Penguin).

You're listening to The Comedy Cellar, live from the Table, the official podcast of New York's world-famous comedy cellar, coming at you on Sirius XM 99 Raw Dog. And on the Ridecast Podcast Network, this is Dan Natterman. I'm here with Noam Dorman. He's the owner of the world-famous comedy cellar. Hello, Noam. Hello, Daniel.

I've been locked down now since March. Barely leaves his house. It's February. It's February. We started early. Yeah, I started early in my house.

And with us, we have another one of the great intellects that we love having so much on this podcast, Jacob Sullum, senior editor at Reason Magazine,

nationally syndicated columnist who writes about drug policy, criminal justice, and civil liberties, all things we discuss regularly here and we look forward to discussing today. He is the author of For Your Own Good, The Anti-Smoking Crusade, and The Tyranny of Public Health, and saying yes, in defense of drug use, Jacob Selim. Hello. Hi. How are you doing?

Fine. Hello, Mr. Selim. So I'm a regular reader of Reason Magazine. I must send these knuckleheads a Reason Magazine at least once or twice a week, right? And I say that Dan and I are, I'd say if you call us anything we're probably libertarian are you a libertarian dan that's the word it's so popular now that i hate to use it well i don't i don't want to just jump on any bandwagon and i'm not even sure libertarian is is i'm not even sure i know what it means but um well you went to law school you're supposed to

politically i think i'm a centrist i don't know if that has anything to do with being a libertarian i anyway and agree on most thing most policy matters in any case so i guess i would i would warn you that before i considered myself a libertarian i thought i was a centrist because i didn't agree with the left or the right on a bunch of things so i figured i was a centrist, and then I realized that, in fact, I was a libertarian. But it makes you feel better. The term classical liberal is a bit cumbersome, but that maybe better reflects the philosophical tradition behind the philosophy.

I agree with that. I might have a better idea of what I am. Periel is a far-left, know, whatever you want to call it. Perrielle is even introduced for those of you who are listening and not watching. Before we get into that, though, before we get into a bunch of issues that I have so many issues I want to ask you about. Did you see in the Times today, it says the whole of liberal democracy is in grave danger at this moment in a column by thomas edsel but then the the column basically goes on to present all these studies that show that liberals are like smarter and more tolerant and more more open-minded than conservatives did you see that in the times

today i'll tell you i saw the headline but did not read it oh because i because i didn't look like it was worth the trouble but um it sounds like, I mean, I think what we call liberals in the U.S. today, which I would call myself, except the term has gotten so muddied, like to think of themselves as being more enlightened, more rational than conservatives. And I would say to the extent they follow in the tradition of the Enlightenment, by definition, they are. But I think within the conservative movement, as it's defined in the U.S., there are also very strong elements of Enlightenment values. So I don't think conservatives or liberals, so-called, really can lay exclusive claim to those values. Yeah, I mean, I'm reading that, I'm thinking, well, I mean, you know, maybe it's true, but if you'd think a smarter mind would have kind of explained at least what they mean by liberal

and conservative as what they're controlling for, they're controlling for evangelicals, like, how are they, you know, lumping me together with Jerry Falwell and deciding that on average, we're less intelligent than, I don't know who, I mean, just seems so not so smart way to write a column. Well, I just, I think the left and the right in the US are both a hodgepodge of sometimes contradictory views. So you will see in some respects, people on the left seem tolerant, in other ways, very intolerant. And the same thing goes for people on the right. It depends on the issue. That was sort of part of my evolution ideologically, was realizing that neither side was being consistent and that it's important to figure out what your principles are and then try to apply them consistently. So let's start with, and everybody jump in.

Periel really wants to ask you about Portland. Let's hold Portland back for just one second, and let's start with police reform. You've written about police reform. Where are you on the best answers to the nationwide situation with police reform and police misbehavior? Okay, well, there are two approaches

that you can take, broadly speaking. One is sort of immediate reforms that respond to the specifics of George Floyd's death. And you saw a lot of that after he was suffocated to death in Minneapolis. Most obvious thing, I guess, would be restrictions on the use of restraint techniques that obstruct breathing, right? That's been an issue that's come up again and again over the years, and probably the best approach is to simply treat any kind of neck restraint, regardless of whether it is formally called a chokehold or not,

as a kind of deadly force, in the same way as firing your gun is considered deadly force, which means that it's only justified in situations where firing your gun would be justified. In other words, if you have reasonable grounds to believe that you're in danger of death or serious injury or that other people are, right? So I think that would really help address that problem because the sort of halfway solutions

they've tried over the years have not worked so well, especially when it comes to changing police department policy. That didn't really work in New York, for example. New York had a policy against chokeholds, but it was widely flouted. And so that may have some restraining effect on police behavior, but I think the best approach is to legally define neck restraints as a kind of deadly force and apply the same restrictions that you would to the use of a firearm. Now, you can take a much broader approach, and that was a good opportunity to try to push some of these broader issues and ask what are the incentives that the system creates either for

police misbehavior or giving police the idea they won't be held accountable for misconduct, giving them too much power and discretion, that's a big issue when it comes to racial disparities in law enforcement. If you don't believe that the system is deliberately consciously racist, which I don't, you can nevertheless see that there are very clear racial disparities that can't be explained by,

for example, differences in the rates at which blacks and whites commit crime. One of the clearest examples of that would be marijuana arrests, where black people are nearly four times as likely to be arrested for low-level marijuana possession, even though they're only slightly more likely to be cannabis consumers. Let me just add to that, because this came up, and Mayor Bloomberg kind of bragged about that when he was trying to justify stop and frisk, which I found really, I thought it was one of the only pure examples of systematic racism I could point to

was that they were purposely arresting these black guys for bullshit crime and marijuana, hoping to catch them with guns or whatever it is. And all these innocent people just found themselves mixed up with the law. So go ahead. Yeah, I would say actually Bloomberg's defense of stop and frisk was interesting because he, I don't know if he realized it or not, but he never actually offered a constitutional rationale for it. He said not even that, oh, we're hoping to catch them with guns. His argument was, we know we're not going to catch them with guns.

We're almost never going to catch them with the guns. That was the case. If you look at the record, they almost never found guns, even though about half of the stops included pat-downs. The pat-downs are only supposed to happen if you have a reasonable suspicion that the person is armed. And yet they rarely found any kind of weapons, almost never found guns. Now his argument was, we are trying to deter these people from carrying guns. Now, that is not a constitutional justification, because the Supreme Court has said you have to have reasonable suspicion

before you stop someone, first of all, reasonable suspicion they're involved in criminal activity, and the fact that nine times out of ten there was no arrest or even a summons suggests that police very frequently did not have reasonable suspicion of criminal activity. And then once you've stopped them, you're only supposed to pat them down if you have a reasonable suspicion that they're armed. And the statistics regarding weapons are even more damning because the very rarely finding

weapons would suggest that they did not have reasonable suspicion. So that made it unconstitutional, regardless of the racial impact, which was, you know, there were stark racial disparities in the impact, but the fact that they did not meet the criteria set forth by the Supreme Court showed that it was unconstitutional. And so his whole rationale, you know, which I guess he has sort of refuted lately, I mean, when he ran for the Democratic nomination, he said, we went too far. We, you know, once we realized what was wrong, we recalibrated.

And it's not really true if you look at the history of this. He very persistently defended this while he was in office, after he was in office. But in any case, he never acknowledged the basic constitutional problem. And I would, I guess I would disagree a little bit. I would say, I don't think that was deliberately racist. I think here is, if you ask the NYPD, what was their perspective on this?

They would say, we're sending police where the crime is. We're trying to help people in these neighborhoods. I didn't say it was deliberately racist. I said it was systematically racist. Okay. Yeah. I guess I try to avoid using that phrase because it's ambiguous and people, people will often say, well, if you're saying it's racist, doesn't that mean that it's run by racists? And I understand your point. It doesn't necessarily mean that. I don't like the term either. I would begrudgingly admit it.

And if I had to use that term, I mean, when black guys are just getting arrested for marijuana for a crime that nobody even cares about because they're black, that sounds like system. Yeah, it was especially outrageous in that case with marijuana busts soared, first under Giuliani, then under Bloomberg, even higher. And it was especially outrageous because you may recall that in 1977,

the New York legislature supposedly decriminalized marijuana possessions. That's right. So every time they were arresting somebody, it was by tricking them in some way into openly displaying marijuana. And that remained a misdemeanor. It's not anymore, by the way. They did change that. But at the time, it was still a misdemeanor to either be smoking marijuana publicly or even to have it in public view.

So the cops would stop people, and they would either pat them down, supposedly, for weapons, and say, what's this lump? Pull it out. It's a bag of weed. Now you're under arrest. Or they would say, hey, do you have any contraband on you that I should be aware of? You should turn it over now. And they turn it over, now they've committed a misdemeanor. So I think that that was a policy that was sincerely designed to help people in high crime neighborhoods. I can't speak to the motivations of every single police officer,

but if you send a whole lot of police into a particular neighborhood, and if you have one of these preventive policies where you're just more or less randomly shaking down young black and, well, first of all, they never would have attempted it, right? But if it had, they attempted it. Can you imagine? The outcry, it would have stopped it almost immediately. And now you can say that goes to race, and it obviously does in some sense, but it's also a class issue. It's a question of who has political influence and who doesn't, right? So all these factors come into play. So when we talk about racial disparities, it doesn't necessarily mean that people are, there's a bunch of racists who are running the system, or even that most cops are racist, which I don't think is true either, but that you have a system that creates what certainly does not look like equality under the

law, where people who are engaging in the same kinds of behavior get treated dramatically differently, and you can predict how they're going to get treated by the color of their skin. So that's one example. And obviously the drug war, you know, that's one policy that gives police tremendous authority to mess with people. And given the other incentives, and this is the people they mess with are going to be disproportionately black. And that we found over the years, the drug, you know, drug prohibition has explicitly racist rates. If you look back to when these laws were passed, it doesn't mean that the people running the system now are racist,

but that should be acknowledged. And it's very clear that the racial disparities persist. So the drug policy is one that I'll give you one other example of systematic or sort of broader policies that would help address these issues. It's the authority of police to stop not just pedestrians, but drivers, which is pretty much absolute given the various Supreme Court rulings. Because there are hundreds of rules set forth in state vehicle codes, many of which are really picayune, many of which are open to interpretation, if you drive for any length of time, a cop will have reason to stop you if he wants to. And the Supreme Court has said that is valid as long as it's probable cause to believe there's a traffic violation, which cops will almost always find.

And it doesn't matter what the real reason is, right? So if a cop stops you for some trivial traffic offense, but he's really thinking, oh, I bet this guy has drugs in the car, or I bet he's got a sizable sum of cash that I can seize by alleging that it is connected to drug crime. That's okay. The Supreme Court has said that's okay. So you get these situations where large numbers of motives are stopped. A lot of them get questioned beyond what is necessary, you know, to give a ticket or a warning. Cops are fishing for evidence of criminal activity. They may end up searching people. They may end up criminal activity. They may end up searching people. They may end up threatening people. They may end up...

I think we're frozen. ...threatening people. What happens... Oh, sorry. No, you got froze for a second. It's okay. Okay. We look at what happens in those situations.

Again, Black people are much more likely to be stopped for interrogation purposes, more likely to be searched. And when those searches happen, the cops are less likely to find contraband, which suggests that the amount of evidence that they need in order to justify a search is less for black people than it is for white people. Now, there I think what you have is a combination of the policy that gives police very wide discretion, and then the existence of at least some cops who are influenced, whether consciously or not, by racial prejudice.

So when they're thinking about what does a drug dealer look like, they're imagining somebody who has darker skin as opposed to lighter skin, that sort of thing. And there's actually some interesting research where they find that the likelihood of that black people, or I should say, the disparity between the rates at which black drivers are stopped versus white drivers decreases the later in the day it becomes, the darker it becomes outside,

the harder it is to see the color of a person's skin. So this sort of evidence suggests that you have some element of racial prejudice, either whether conscious or not, operating in conjunction with these broader policies that give police license to hassle people pretty much at will. Can you give an example of a traffic law that we might not know about that could be a reason to stop somebody that we wouldn't have thought of? Oh, I mean, there are things related to how you maintain your car, right? So you have to have a

certain amount of tread on your tires. Now, I don't know if I have the right amount of tread on my tires. I don't know if you guys do either, but it's not a typical justification for stopping somebody unless the cop has some other reason to do it. Failure to properly signal a lane change. It's not just a matter of signaling, but allowing a certain amount of time and distance in the signaling. Signaling a turn a certain distance from, a lot of people aren't even aware of this, you have to be a certain distance from the intersection before you start signaling your turn. Window tents, right? These laws vary from state to state, how dark your windows can be.

And I would imagine in most cases, cops don't really care about this stuff and don't tend not to stop people for them. But if they have some other independent reason for suspicion that they think they have, that they will use a rule like that to justify a stop. Oh, one more. Crack in your windshield. Now, this also varies from state to state,

but you can have a crack in your windshield, but it can't be so large that it obstructs a clear view. Well, what is that? How big can the crack in your windshield be, right? So rules like that provide police with ample pretext for stopping motorists basically anytime they want. So just a couple of questions. Just to go back to something you said, I'm just curious. Do you distinguish between racial profiling and racial prejudice?

You use the term racial prejudice to cops pulling over, you know, the black guys morp often on the highway looking for whatever crime. And I'm wondering, is that racial prejudice or is that racial profiling, or is that the same thing? I think it's probably a combination of both. But racial profiling, you could try to justify by saying, well, we know that people in certain groups are more likely to commit this kind of crime, right? So if that's true, that's more like racial profiling.

I don't mean to justify it, just to be fair for the listeners. But the problem is, as I mentioned, when they actually search drivers, so they're searching them primarily for drugs, sometimes, you know, weapons, illegal weapons, they're less likely to find contraband on black drivers, right? So that suggests if they are profiling, they're not doing it very well, right? They're not accurately identifying people who are more likely to be carrying contraband. So I think you have a combination of factors there. Now you can look at statistics on homicide and say, well, look, black people commit a disproportionate share of homicides, which is true. But that does not make it rational to include

that any randomly stopped black driver will be more likely to be carrying drugs, right? That's a different category of crime altogether, right? So, but I think it is, I've had some conversations with cops and former cops who are, you know, for the most part, taking issue with me, but I get the sense that what they're saying

is that cops know these statistics, these crime statistics, and that it tends to color, forgive the expression, their view of how suspicious people are, right? And in their view, that's rational. But it isn't necessarily rational, because it depends on what the probabilities are, what the statistics are, what they pertain to, and whether it's actually relevant to that situation.

Well, this goes to a much, much, much broader human frailty, which is our inability to process probabilities at all. I talk about something like my wife sees somebody's child kidnapped in Iowa, and then my kids can't leave the house for a month because she can't process the probability. So cops are supposed to do better, but it is hard for humans to do that stuff. I'll give you just one more example about probabilities, which is very telling, I think, which involves drug sniffing dogs. Now, the Supreme Court has said, typically during a traffic stop, it could also be a pedestrian stop. Cops can use drug-stiffing dogs without any additional justification. They pull you over for a minor traffic offense. As long as they don't unreasonably prolong the stop, they can bring in a dog with no additional

evidence, have him sniff your car, and if the dog alerts to your car, that provides probable cause for a search. Now, when we say the dog alerts to the car, what we probable cause for a search. Now when we say the dog alerts to the car, what we really mean is the cop says the dog alerted the car, which may or may not be true. Even if the cop thinks the dog alerted to the car, the dog may be alerting erroneously to other scents. The dog may be responding to the handler's subconscious cues, right? So if the cop is suspicious of you, he wants the dog to alert your car so he can search your car

and he can subconsciously communicate that to the dog. So there's research on this that shows all kinds of errors come into play. The sprint court has said, as long as the dog is well-trained, that's good enough for probable cause, but it's not actually true. And this is where the probabilities come into it. Because even if you have the best trained police

dog in the country, who performs really well in test conditions, right? So you walk them through a course, you have drugs and dummy targets, hidden dog toys, they typically use, they'll hide dog toys and they'll hide drugs. And assuming the guy who's administering the test doesn't know the location of these things, which is how you're supposed to do it, the dog performs very well in that situation. That doesn't mean he's going to perform very well in the real world, because when you're stopping people, say for minor traffic violations, a very small percentage of them are going to actually be carrying drugs. So even if the dog has a very high probability of, you know, he does very well in the test situation,

he is apt to falsely alert to cars much more often than he accurately alerts to them. And if you run the probabilities, I won't bore you with the details of it, but it suggests that even with a well-trained police dog, when they alert to a car in an ordinary situation where you haven't screened people based on other criteria, more or less random stops, when they alert to a car, the probability is something very short of what would be considered to be probable cause, maybe 10 to 15% in that area, the probability that they're accurately alerting. So that is a big problem, not just for cops not knowing probabilities, but for the general public and also for judges, including the Supreme Court, that they don't recognize that what they consider to be probable cause really isn't. You're saying a well-trained dog that indicates drugs has a 13% chance of being

correct in a real world situation? Well, this is a particular calculation that I read was done by a law professor. He came up with 14% based on certain assumptions. The dog performs very well in test conditions. In the real world, a certain low percentage of cars are actually carrying drugs, right? This is the same problem comes up with any kind of diagnostic test, by the way, including testing for antibodies for COVID-19, is that the test looks very good when you do the validity, the validation studies, where you know what the samples are. But if you're testing a general population where the rate of the disease or the rate of carrying drugs in this case is low, then you may get many more false positives than true positives.

Base rate fallacy. What's that? That's the base rate fallacy. There you go. There you go. Yeah. So that's just one example. So the fact that the police have the power to stop you at will,

given that they have a dog, they also have the power to search you at will. Given that they have a dog, they also have the power to search you at will. That's another problem. So the first thing to do is have way fewer reasons for police to be arresting people. That'll go a long way to decreasing interactions

and also decreasing interactions where the guy being arrested feels righteously bitter about the bullshit that he's being arrested for, which probably raises the temperature on some of these interactions. For sure, yeah. And then just let me just add, there's two issues. There's stopping the person, right? And you've got lots and lots of excuses for that. But then there's also arresting the person,

which some states allow for almost any traffic. I live in Texas. In Texas, you can be arrested for almost any traffic violation. And in fact, there was a case that went to the Supreme Court involving a woman who didn't buckle her seatbelt. And the cop was especially pissed off because she had two little kids with her who also weren't buckled. So instead of just ticketing her, he handcuffed her,

hauled her off to jail. She had empty her pockets. She was held in jail. This went all the way to the Supreme Court, and they said, not in so many words, but basically this cop was an asshole. He shouldn't have done that, but it's not unconstitutional. Why? Because he had probable cause to believe she had violated this traffic law,

and even though it was only punishable by a small fine and not by jail, she could still be jailed for it. That's rather counterintuitive, but that's what they said. So if you say not only that they can stop you, but that they can arrest you for almost any of those offenses, then as you say, the opportunity for escalation is magnified. Yeah. I mean, I'd said, I don't want to get sucked into that, but I had said that I think much of the anger that we're seeing about George Floyd is actually anger about the stuff you're talking about now. It's a rage that's built up, not from the murders, but built up from the day-to-day humiliations and angering interactions with the cops. And if the cops in general treated people nicely or appropriately, then when from time to time, as is inevitable, some cop murders somebody, which it is inevitable, people would take that in context.

But the context they take it in now is a police force, which they highly resent in their own lives. And you probably want to see unions defanged a little bit, but there is something that I think I strongly disagree with you on, or might disagree with you on, and that is you want to end qualified immunity. Yes. Can you explain to everybody what that is, and then I'll tell you why I have a problem

with it. You can tell me why I'm wrong. So this is a doctrine that was invented by the Supreme Court in its current form. It was invented in 1982. What it says is that if you try to use this federal statute that

allows you to sue government officials for violating your constitutional rights or in the case of somebody who's killed, allows the relatives of that person to sue, you will not be allowed to pursue your claims unless you can identify precedent typically in that circuit that has a very, that's very similar in the facts, right? So it's not enough, for example, to establish that when police officers use excessive force while arresting somebody, that is a violation of

the Fourth Amendment. It's an unreasonable seizure. You need to have a situation that is very close to what happened in your particular case. And so you may be surprised to learn, even though I've been writing about this for years, I was surprised to realize that it's not even clear that George Floyd's family will be allowed to pursue claims based on his death. Because in that circuit, in the Eighth Circuit, you have cases relating to excessive force, where it has been deemed unconstitutional, but you have several cases where suspects or detainees were held in a similar way

while lying down on their stomachs, pinned down by several cops for extended periods of time, died as a result, and allegedly as a result of suffocation, where the court said that is not excessive force. And the rationale apparently was that the person was resisting, right? So that could make a difference in George Floyd's case, because if you've watched the video, you can see that the only way he's resisting is by saying he can't breathe and to beg them to get off him. So that might make a difference, but you can't be sure. So it's possible that even in a case that is, I think, almost universally recognized as egregious, that his family still could not, not only not recover damages, but not even be allowed to make their case to a jury.

Now, in all likelihood, there's going to be a big settlement. And so it won't have to get to that stage. But assuming that it did, and the courts had to say whether this lawsuit is allowed, it's not clear that they would allow it. So now to be clear, this is a lawsuit against the cop personally, not against the jurisdiction. They can still sue the city or the municipality. They can, this is, yeah, this is, the immunity goes to the officers. They can also sue the municipality if they claim there's a pattern in practice that encourages this sort of behavior. That's a bit harder case to make, right? Because they can say this is a rogue cop.

We had proper training. He ignored it. You can't sue the municipality just for the negligence of the officer, the qualified? I thought you could. Not just for the negligence, although there's actually a bill in the Senate now that would allow that. It would narrow qualified immunity for cops, and it would allow lawsuits against the municipality without having to show that they had a pattern or practice that encouraged the behavior. And just to be clear, the cops themselves basically never pay a cent, even when they're found liable, because they're indemnified by the government.

And so either the insurance company or the taxpayers end up footing the bill. So it's not as if, even when cops lose in a case, which doesn't happen very often, that they're going to be bankrupted by it. Okay, well, this is what got interesting. And this is some stuff I don't know. So if what you're saying is that the qualified immunity, I mean, that the lawsuits against the officers simply are passed through to the city and that there's actually no liability on the part of the officers, then I might agree with you in ending qualified immunity.

But then, obviously, there's not much, not that I think there would be anyway, actually, but there's not much deterrent effect against the officer if it doesn't have skin in the game, actually. In reality, it doesn't have skin in the game. Definitely, you're right. I mean, that weakens the deterrent effect for sure, if you don't have to worry about being personally bankrupted. But the hope is that you, first of all, won't be sending a message that this sort of misconduct will not be held unconstitutional and that no one will be held accountable for it. that cities and police departments will eventually have an incentive to change their policies. Because if they start to pay out a lot of money, it becomes harder to maintain their insurance policies. It's costing the city more. Another approach is to have cops carry their own liability insurance. Well, that's what I want to talk to you about.

In which case they would have a personal incentive because they don't want their rates to go up to be more careful. Okay. That's what I'm talking about. So I think that's why I'm really against it because I think it's just, first of all, it's a cut and pay for the cops, right? To carry their own liability insurance. And unlike a doctor or a restaurant owner or lawyer who gets sued and his insurance rates go up. Cops can't raise their prices or cut their expenses. They're literally at the mercy of whatever bullshit claims. And let's be honest, most claims are bullshit. In all liability cases, most claims are, especially once people know you're insured, basically everybody has an incentive to sue because the insurance company

almost always settles. I can tell you that. And you put this cop in a situation where he now has to take less money. And here's the real rub. The cop who has the most dangerous beat is going to pay the highest insurance rate. So the guy who's taking the most risks and actually is in the most dangerous situations is the guy who's taking the most risks and actually is in the most dangerous situations is the guy who's going to end up paying the most out of insurance policies and making the least money for himself. That just seems to be untenable and unfair. Well, I think that- You follow me, right? Yes, I do. I think having cops carry their own insurance changes the calculation a bit,

but I would like to point out that it's not as if you're arguing that the insurance companies will just pay to get rid of the lawsuit. They always do. Yeah. Typically, what happens in these cases, because lawyers are working for contingency fees, they have a strong incentive not to take bullshit cases because it's out of their pocket then. No, I tell you my real world experience to tell you that's not correct. Okay, but that's so you're right that the so personal insurance might change that calculation, but under the current system and even if you eliminated qualified immunity but you had you know the otherwise continued with the current financial arrangement, I don't think you would see a lot of many more frivolous claims because the lawyers

have an incentive to avoid them. And let me just give you a few examples of what I'm talking about. I mentioned George Floyd, but there's one case after another where police did seemingly outrageous things, and the court said, not only are we not going to let this lawsuit proceed because we decided the law was not clearly established at the time, we're not even going to say what the law is. So I'll give one example from the Ninth Circuit. These cops in Fresno were accused of stealing, I think it was over $240,000 in cash and rare coins while executing warrants, search warrants. Now you would look at that and you look at the Fourth Amendment, you would say, that seems like a Fourth Amendment violation to me, right? The Ninth Circuit said the cops should

have known it was wrong to do that because stealing is wrong, but it was not clearly established in our circuit at the time that it was also a violation of the Fourth Amendment. Therefore, you can't sue them. And, you know, we're not going to bother to say whether cops in the future have to worry about this as a constitutional violation either. So you have a situation where not only the immediate plaintiff can't pursue the case, but any future plaintiff suffering from almost or identical, from an identical abuse, can't sue either because the law is never clearly established because the Supreme Court has said you can

skip the step of addressing the constitutional issue and proceed directly to the question of whether the law was clear, the rights that were allegedly vile were clearly established at the time. So that means that the law never gets better and these constitutional issues never get resolved. Just a couple other great examples. There is a case, some of these cases, the Supreme Court had an opportunity to hear that the Fresno case was one of them,

but decided not to. Another one they declined to hear involved a woman who agreed to let cops into her home to arrest her ex-boyfriend, who actually turns out wasn't even there at the time. And they took her saying, you can go in my house to arrest my ex-boyfriend, permission for them to essentially destroy her, excuse me, destroy her house and make it uninhabitable for months by bombarding it

with tear gas grenades. So the question was, was that a legitimate interpretation of her consent, making it constitutional under the Fourth Amendment? And the appeals court said, we're not going to say whether it was or not. All we're going to say is that that was not clearly established at the time. Other cases involve things like cops chasing a suspect into a family's yard and shooting a 10-year-old boy while trying to kill his dog. Now, neither the boy nor the dog represented any threat to the cop at the time. That again was, the lawsuit was blocked without resolving the constitutional issue. A case where a guy was, claims he was surrendering to police. A suspect was surrendering to police. He was sitting on the pavement with his hands up

in the air and the cop sicced a dog on him anyway. And one more case. So my point is that it's not just, you have seemingly plausible claims, assuming they can prove the facts, right? So a lot of these facts are alleged, and you'd have to, if you were allowed to proceed, you'd have to prove them, right? So I don't want to give the impression that this opens the floodgate, abolishing qualified immunity opens the floodgates for any kind of nonsense claim. There still are incentives against bringing those claims, and there are still reasons why you can't win them, although you're right to mention that the insurance company angle changes it somewhat. Yeah, I just can't, first of all, I can't see saddling the cop with the requirement that he has to, with a fixed income, he can't get,

he can't collect higher salary, but he has to pay insurance for his job. And if he should, and if the insurance company, for whatever reason, decides they want to, you know, he's a higher liability,

even if it means because he's a, he's really risking his life more often, you know, getting in more tangles with murderers or something. Well, he's a higher risk, and now he's got to pay more. I just can't imagine anybody having to insure themselves at a job like that. And I think I really – it's one of the only things I could probably ever disagree with you on, but I strongly disagree about what the reality is. When you have, I can't think of anything more tempting for like a lawsuit for a contingency fee is having a really

tough to look at video of a minority being manhandled, perhaps with justification by a white cop suing for a couple million dollars, ready to settle for $30,000 or $40,000. And you go before and you file that lawsuit and the insurance company says, I'm not going before the jury and risking a few million dollars when I can settle this for $30,000. And I mean, I know about this in real life. Well, except that the current situation, which is that the municipality is either paying a settlement out of the general fund or they're insured themselves, that doesn't happen. In other words, they don't always settle these cases. There are lots of cases that lawyers

are rejecting. They sometimes agree to a settlement in cases with facts that look really bad. And that may happen in George Floyd's case. Why doesn't the municipality settle? I mean, everybody settles. Billy Joel settled over a bullshit claim for a song he didn't steal. I mean, everybody settles. One of the reasons they don't settle is that because of qualified immunity, they have a good shot at getting the case dismissed

before it proceeds any further. Yeah, but you want to take that away. That's the thing. I want to take it away because- Yeah, that's what I'm thinking. Open the floodgates. It prevents police from being held accountable for really egregious misconduct.

And it's furthermore, it's not, as I mentioned, it's what's not written into this law. This law was passed the late 19th century. The Supreme Court sort of extra legally decided that cops should have this, not even a defense, but this immunity. And I think for reasons that are not persuasive, if you look at the original understanding of the law or at the common law at the time, it might be it might be one of those things, which we have how it came to be probably is has no good reason to it. But I I think that somehow maybe just by happenstance, I actually think it would be very a lot of unintended consequences if we got rid of it and not not all that much benefit although i would very much strongly like to see the municipalities be able to be sued um because after all ron goldman is still trying to chase the ron goldman's dad the money you know civil lawsuits don't actually pay out that much when you sue an individual um but when you sue the city you can make a lot of

money which is the best thing these families can get actually is money more than, more than the cop getting prosecuted. Although that might bring them closure. Money is important. I mean, for George Floyd, George Floyd's family, money is very important, you know? Right. And so, but the point is, if you have a legal doctrine that could very possibly present a lawsuit, even in a case like this, that's a real problem.

That's a problem that needs to be addressed. So whether you want cops to carry their own insurance, or you want to continue having the municipalities indemnifying them, I think something needs to change. All right, Periel, you want to talk about Portland? Periel, talk about smoking and drug use. Go ahead, go ahead, and then we'll get to Portland. You wrote a book about smoking, and I haven't read it,

but the title of the book seems like you might have some interesting opinions about the anti-smoking crusade and the tyranny of public health. I take it you're against the anti-smoking crusade and the tyranny of public health. I take it you're against the anti-smoking crusade? I am against the coercive aspects of it. So as with any choice that people make that may endanger their health, I think adults should be free to make those choices. You know, applies to drug use, motorcycle riding, sex, even, all kinds of dangerous activities that adults should be allowed to engage in, even though they're risky, even though they might result in disease or injury.

And sort of the main thesis of the book is that the rationale for getting the government involved in stopping people from smoking, not just through propaganda, but through measures like, you know, taxes and smoking bans and restrictions on which cigarettes can be sold where and to whom, that sort of thing, that the rationale for that is based on a very broad understanding of public health that has totalitarian implications, not to put too fine a point on it, because what it says is that anything that people do that might hurt them is a legitimate grounds for government intervention. You know, I'm not a cigarette smoker.

I've never, you know, never in my life been a cigarette smoker, but I think that's a good example of a situation where some people look at the habit and say, that's disgusting, and it's really dangerous, and no one in his right mind would do it. Therefore, if we can't ban it immediately, we at least should restrict it as heavily as we can in order to discourage it. And I'm just saying that, in my view, that's not the government's business. Well, I would just say that, and maybe I'm not so much a libertarian then, because I would say that with regard to my experience in this matter which is as a comedian that works at comedy clubs that are that up until some years ago

were filled with smoke and then bloomberg came along and said you can't smoke in bars you can't smoke in clubs and it's great and everybody loves Now, you could argue that the free market should take care of that and that clubs and bars could open up and advertise no smoking. But that was never going to happen. It just didn't seem like the free market was up to the challenge. It wasn't happening. Well, I think it was happening to some extent. And we don't know what would have happened had the government all across the country started to impose these rules. I agree with you. I like it much better without having to smoke. I don't like being around the smoke. I think lots of other people feel the same way. And when there's a demand like that, and that demand became more and more

powerful over time, right? It used to be that non-smokers would just kind of put up with it, they took it for granted that was going to be around. But eventually they began to feel like their interests should matter and that they should be taken into account. I think the market would have responded to that. But the situation we're in now is so far from that that I don't even think it's even relevant anymore. But my only plea now would be to say, if somebody wants to open a bar that caters to smokers, and everybody who works there agrees to that, and all the customers who go in know that smoking is allowed, a free society should be able to allow that.

That's my plea, is that there should be some tolerance for this deviant lifestyle that most people disapprove of, and that it should be allowed among consenting adults. Yeah, I would have no problem if a bar, and I think some cigar bars can do that, but if a bar or restaurant wanted to open up with smoking, that would be okay. But it would only be okay because we've already had this, we already have a kind of a world now where everybody is on board with the no smoking in bars and restaurants. I mean, in other words, it wouldn't go back to the way it was. If all of a sudden they said you can open up a restaurant and allow smoking, it wouldn't go back to the old days when they were smoking everywhere.

No, I agree. We needed a little bit of totalitarianism to get us where we needed to be. Well, I guess I disagree. It's very hard to go back in history and look at what might have happened, but it's very hard to disentangle the impact of these policies, the smoking bans, from the impact of evolving opinion

and culture, and also the decline in smoking. I mean, that's a big deal. I mean, smoking has, the smoking ban has declined very, very substantially since the 60s. And that has a big impact on people's

views of the matter. What is a bar and restaurant owner? I would say that from time to time you got to accept the expediency over principle. What's upsetting is that you hate to give in to any

kind of exception to a very important principle or belief in the wisdom of the marketplace. that you hate to give in to any kind of exception to a very important principle or belief in the market, the wisdom of the marketplace, because then sooner or later that people take that example and then they drive a truck right through it and there's five other ridiculous things that happened from it. But I would say that the marketplace didn't work in this regard

because it was not an informed marketplace. And now that we've had years with the smoking law and without the smoking law, I think at this point, if you turned it over to the marketplace, I think it would work fine. I think you'd see places that allow smoking, places that didn't allow smoking smoking i think most clubs wouldn't allow smoking because now we have those experiences to compare when we deciding which one we want to buy but at the time we only knew clubs being smoky and you know that's just that's the way it was so what do we have to compare it to but uh i'm basically with you uh mr solomon on on this they should allow smoking bars if you want to smoke. Who cares what they do, right? That's the basic idea. It sounds like you're with me,

Noam, but you don't want to say it because I don't have quite the pedigree that Mr. Noam. I agree with you that the market wasn't working back then and it would have never happened. What I'm saying is that now that we actually have an informed population, I think the market would work much better now than it did in the 90s because people actually are comparing two things that they've experienced and now they can really choose at that time is that it was really fun and kind of sexy when you used to be able to smoke in bars like doesn't anybody care about that like it was just you know it felt like so much less uptight yeah the smoking bars will be way cooler for sure the market the market for the smoking rather be way cooler but comedy clubs will probably remain non-smoking and i think that's

as it should be right that would be great i mean right now i don't feel like if somebody lights a cigarette now smokers and non-smokers alike, they freak out. They're like, what the hell is that? You know, used to be something we wouldn't even notice. And that's, you know, that's a big cultural change and a change in expectations. And you're right that the law has some impact on that. What do you expect when you go to a restaurant? Well, the default expectation now is that there won't be any smoking, but I don't think you can attribute it entirely to government policy. If you look at things like other options for diners, right? Decades ago, how easy was it to find vegetarian options in restaurants versus now?

Now, that was not a government-mandated change, but it's a very dramatic change that has happened through cultural change, through changes in people's tastes and preferences, and the market responding to them. Although it's also worth noting that Dave Chappelle can get on a stage anywhere in the world and light a cigarette and smoke like two packs, and nobody dares say a word, right? Well, there should always be a Dave Ch chapelle exception obviously that's right okay portland what's going on in portland perry literally is beside herself people are being kidnapped and and whisked away in portland so let's hit i actually not that informed about what's going on in Portland. Nor I. Go ahead. So we'll let Perrielle run with it. Now that could be dangerous. Okay. So let me read to you. I'm quoting my friend Toure, who is a comedian. There was a comedian Toure that used to work at the Cellar, but I ain't seen him in a

long time. Really? No. This is the guy who was in the Michael Jackson documentary, right? Michael Jackson? Isn't this the guy who was in the Michael Jackson documentary? I mean, it's entirely possible. He was in another documentary. Whatever, whatever. Go ahead. Quote,

What's happening in Portland should be frightening to all of us. It's federal military agents kidnapping protesters off the street. Military is not supposed to police American citizens. It's frightening to have soldiers with no accountability arresting

citizens at Trump's discretion. It could be your city next. It could be you next. This is banana republic fascism. Trey said it. I guess that settles it. No, excuse me. Don't think I didn't come more prepared than that.

Okay. And I'm no longer quoting him. These are just facts unless they're mistaken, although they seem accurate. Since July 2nd, federal law enforcement officers have been deployed in Portland. Federal agents have arrested, assaulted, tear gas shot, and removed protesters in unmarked vehicles.

I mean, and I could go on, but probably I don't need to. Why is it cops arrest people in unmarked vehicles all the time? But go ahead but go ahead, go ahead, Jake, Mr. Solomon, go ahead.

Tell us about it. Yes. No, I mean, I agree. It's very troubling what's going on. And this isn't, this is not a,

and Rand Paul, by the way, also agrees. Yeah. Right. You know, in addition to, you know,

the attorney general of Oregon and the mayor in Portland, Rand Paul, who does not agree with them about much else, agrees that this is- And Bush is former Homeland Security chief. I saw a headline. Tom Ridge, yeah. That it's unconstitutional. Why is it unconstitutional? Because the main obvious violation is that they're detaining people without probable cause. And there are several documented cases that were cited in

the lawsuit that is trying to get a court order to end this. And we have it caught on video. So this is not like some weird conspiracy theory or, you know, or wild allegation. This is actually happening. Now, it's not actually military people. They're dressed like military people. They're dressed in camouflage fatigues for some reason, because I guess you can hide out better in Portland, blend in with the surroundings that way better. But they are generally wearing patches that say only police on them, which doesn't tell you what agency they work for.

It doesn't tell you their name or their identification number. And at least a couple of people who were stopped, dragged off the street, peaceful protesters. These are not rioters. They didn't know why they were being stopped. They didn't know who these guys were. They thought these could be some kind of right-wing crazies. I don't know what's going on. And they never got an explanation for why were they detained? Why were they held? They were never charged. Eventually, as far as we know, they were all released eventually. But that is very clearly unconstitutional. It's not the sort of thing that's supposed to happen.

So let me ask, let's see, let's see what else you feel you need. I didn't want to, you need to say right now, I want to push back a little bit with devil's advocate questions. Yeah. On the issue of the detention specifically. Yeah, that's fine. Go ahead. Cause I was going to move on to the excessive questions. Yeah. I mean, on the, on the issue of the detention specifically. Yeah, that's fine. Go ahead.

Cause I was going to move on to the excessive force, but okay. So the first thing that I want to say is that, um, in every, in every circumstance where the, there's a law enforcement of, uh,

protests mixed with riots, mixed with vandalism, these kinds of situations. We have abuses, always, always. We have people being arrested without probable cause. We have people getting Masha Gessen's daughter, which in New York was arrested by the NYPD and pulled off to prison without knowing what, she probably didn't do anything that she should have been arrested for. So what I'm not getting is that there's something distinctly wrong going on here because this is Trump's Homeland Security thing. I'm all for them properly, to the letter of the law, identifying themselves,

but I don't think that would change anything. I think, I mean, I just, it adds, it's a, it's a bad image, but I don't know if, if it would significantly reduce the injustices going on if they had a nice patch that said Homeland Security. And I'm just to cut to the heart of the matter that, that always goes through my mind. And I am quite libertarian in terms of being an innocent to proven probable cause loving person, which is that when you have mass protests, dangerous situations, vandalism,

we saw that one guy who was stuck in his store, we just found out they pulled out a body of a store that was burned down. When you're in that, you know, the fog of war there, are we being totally fair if we focus just on the inevitable abuses? I know the Wall Street Journal's attitude was just take them all home and let Portland stew in it. And I reverberated to that a little bit. Yes, I want them to do everything as well as they possibly can. No, I don't think that means you're not going to be able to find stories of cops. They always, anybody, give anybody a gun and a badge and unruly people and not a lot of sleep and a lot of stress, and you're going to have abuses. And at some point, we do have to ask ourselves whether we're being realistic. And what's on the other side of the ledger?

Just letting it run free? I mean, just letting it burn? Yeah, I think that what makes the federal intervention different and especially problematic is, first of all, this is not primarily a federal responsibility. They do have the authority to protect the courthouse, protect other federal property, but they're roaming the streets of Portland picking up guys they think look like anarchists, apparently. I mean, one guy was dressed in black and he surmises that they assumed he was a rioter because of that. And so that's that's a problem. They're going beyond what they should be doing. The local officials don't want them. They're trying to generally quell these these demonstrations, which we should note are are mostly peaceful. I mean, I agree with you. I guess all I'm saying is I guess all I'm saying is that there is a baby and there's a bathwater. And sometimes, you know, I just feel like we need to worry about both of them. And I mean, I don't know. I mean, what we went through in New military. It wasn't a whole mess here. They brought in the military. And the nature. So we had to wait until like 30 or 35% of every Korean owned store in Los Angeles was

vandalized. Then we send the military in and say, well, that was justified. So then Cotton starts worrying about it the morning after it looked like it could go either way. He really did. I mean, I own a building and I had a stepmother alone in the building counting, clutching fire extinguishers, getting the windows boarded, hearing really dangerous sounds out on the street. Oh, we lost Mr. Sullen. We lost his photo.

He may still be there. You still there, Jacob? Oh, no. Well. Anyway. I wonder if you can still hear us so yeah i'm i'm with you guys on on the abuses in portland i just hope that um the i hope that the aim is to get them to clean up their act not to just turn the protests and the vandalism free. And I think that the two are mixed together. And I'm not comfortable with the latter. I'm totally comfortable with calling the Homeland Security to task for everything that they're doing that they shouldn't be doing.

I mean, it's really scary that they're allowed to just, you know, gallivant around and just like do that willy nilly. I mean, you have a constitution for a reason, right? Like that's supposed to protect us as citizens from specifically that sort of behavior. Well, if people are being arrested without probable cause, like I said, it was NYPD was doing it too. Every force does it, doesn't make it right. I would say there's, you are still there. We lost your picture. No, there's a difference. Jacob, we can't see you. It's okay. It's okay.

Go ahead. Sorry. Don't worry about that. Okay. I think there's a difference in having these federal agents come in without, not just not identifying their department, but not identifying them at all, right? So if it's a local cop, you have more of an opportunity to hold them accountable because you know, he works for the NYPD. This is his last name. You might get a badge number, right? It doesn't mean you're definitely going to be able to hold him accountable, but at least you know who this guy is. Whereas if you look at the lawsuit that the Attorney General of Oregon filed, it's John Doe's, I think, one through ten or one through nine. They don't even know who these people are. They're not even sure who they work for. We think that they work for the U.S.

Marshal Service and various agencies within the Department of Homeland Security, but we don't really know. That in itself is troubling. Well, that's crazy. Not knowing who they work for. But I got to say something. I have a serious PTSD from what went on in New York. And there was always a separation between the intellectuals. Um, and I don't know enough about you to put you in this category, but I have a lot of dear friends who I put in that category and people who live everyday lives. And you know, the, the, it becomes very difficult for them to see the Molotov cocktail through the restaurant window as a Molotov cocktail through their own careers and never writing again. And what we went through in New York and with the local police is essentially told to stand down.

And it's pretty clear they were because even the governor was annoyed about it. was so fucking scary, so scary and so foul when you think about what it means to be a citizen and have a police force. There's a part of me that's uninformed, which says, look, I don't know what's going on in Portland, but I can imagine there are a lot of people scared shitless right now, just like I was in New York, was saying, thank God for these Homeland Security people. They're the only thing standing between me and the ruin of my life. And the mayor of Portland, clearly, that is not his priority. And to the extent that I'm wrong, I'm wrong. I believe in principle, and I believe in all that. I just want to say that that doesn't get spoken about a lot. And it's in the same way, in the same way that we have to respect like the,

the everyday black guy who tells us the stories about what it's like to actually be deal with the police. You got to understand what it must be like to be like Korean and seeing this going on again, after having lived through the LA riots and saying, yeah, give me the military. And,

and by the way, get them in early this time. Don't wait until half the city burns down to bring them in this time. I was in LA then. I'm sorry. I just wanted to ask. I was in LA then. And so I understand what you're talking about. I didn't live in the worst neighborhood. It wasn't the best neighborhood either. But there were fires burning in a block or two away from me. And it was alarming. And it was quite clear if you look at footage of Koreatown, for example, that the cops were not doing much of anything.

And so people, business people, rightly in my view, took their self-defense into their own hands, which is one of the reasons we have a Second Amendment, another thing we can talk about. But they had to do that, right? And so, yes, I agree with you. There are situations where police departments manifestly fail to do what they are supposed to do.

And there are certainly situations in the course of protests like are happening in Portland where people commit crimes. There's no question about that. People are committing vandalism. They're committing arson. They're assaulting people. They're throwing bottles and using lasers and fireworks and all this. Definitely there are some people that are doing that,

and they should be held accountable. But the fact that some people are committing criminal acts does not justify the indiscriminate use of force. No, you have, you know, you have reporters getting hit with rubber bullets. Yes. Ten times. I mean, that's really the part. Of course not.

Of course, I agree with you on that. But the question is, do you want, do they want to get them to stay there but clean up their act? Or do they, or, I mean, there's no one profile. But many people, many people, many people obviously point this out. But their true agenda is get them out of here so we can have our way with these protests. And to the extent that the state and the local government are not going to put a stop to this kind of stuff, then there is a big part of me which says I'm happy that the federal government is trying to put a stop to this kind of stuff, then there is a big part of me which says I'm happy that the federal government is trying to put a stop to it. And yes, goddammit,

they should do it the right way. I would insist on both. By the way, I read that you're from Wilkes-Barre, Jacob? Yeah, we always said Wilkes-Barre, which I think the actual pronunciation is supposed to be Bar-ray. Well, neither can I. But they always say Wilkes-Barre there. You have a local airport there called Wilkes-Barre-Scranton International Airport and I want to know where you get off

calling it an international airport. I think they have flights to Canada. Well, I respectfully disagree. That's not true. I'm still going to do Wikipedia page. I assume that they have flights to Canada

and that's how they got there. And maybe Mexico? I don't know. I'm looking at destinations and I'm seeing Charlotte, Chicago, here, Philly, Orlando, Washington, Dallas. They got all that damn nerve, I guess. So it seems like it's the most that roared as far as I'm concerned.

We got time, I guess, for one more fun issue. If you got one, just choice. What's on your mind when I talk about the... Well, he alluded to the Second Amendment. He alluded to the Second Amendment. Go ahead. So maybe he has... Whatever you want.

Dan likes the Second Amendment. I enjoy the Second Amendment because it's something I get. It's something that doesn't require a lot of details to understand. So one can talk about it without knowing. Yes, I mean, I guess in line with what we were talking about earlier, one of the things to recognize is that the Second Amendment, like a lot of other constitutional protections, is most important to the people in society who are least powerful and least influential. So if you look at a place like California, where it is nearly impossible to get a permit to carry a handgun, you know, rich

celebrities and politicians don't have to worry about that because they have their own protection. It is less affluent people who maybe live in rough neighborhoods, who can't legally defend themselves. And that's wrong. And if you also look at who is affected when the government enforces gun restrictions, we were talking about stop and frisk in New York City. That is what it looks like when the government decides to enforce its rules about who may have guns is that you get a lot of young black guys being pushed against walls and frisked. So you have to, you know, I think some people on the left recognize this.

They recognize that this is an issue that is a basic, an issue of basic human rights. It's the right to defend your own life. And especially if you are not confident that the system is going to protect you, you want to have the means of your own life. And especially if you are not confident that the system is going to protect you, you want to have the means of your own self-protection. And if you look at the roots, this is similar to what you see with drug laws.

Look at the roots of gun control in the United States. They were racist roots. They were about disarming freedmen in the South. They were about stopping disenfranchised people from protecting themselves. I knew, by the way, that he would have an interesting opinion on gun control. That's why I went there. But regardless, it may be true that gun control started off racist. I don't know if that's true, but let's say that it's true. That doesn't mean that it's not a good idea today, necessarily. No, that in itself does not necessarily mean that. But there are other reasons why it's not.

Do you think that American society would be better off if nobody at all had guns, or at least nobody except police and military? I mean, we would have a lot left. Don't you think we'd have a lot left? Not nobody except the police and military. No, I don't think so. And I think the framers very clearly didn't think so. I mean, this was supposed to be a way of not only assuring people that they had the ability to defend themselves against private aggressors, but as being a deterrent to tyranny. Now, you may argue about how good that deterrent is nowadays when, you know, we've got tanks and nuclear weapons and so on, but that is still one of the rationales. And so the last thing you want to do is only give police and other

people with political power access to the means of self-defense. I have a feeling no one disagrees. And I think, you know, even just looking at criminals, yes, if you, I mean, let's just say you can make guns disappear entirely by making a wish. They would all go away. There would for sure be fewer gun homicides, you know, there would be no gun homicides by definition, probably fewer homicides overall. But that is not reality. Reality is that you have a bunch of laws that are passed that are not obeyed by criminals because they don't care about those laws. They primarily affect law-abiding people by definition.

And they take away a fundamental right from a lot of people for no good reason. And just a few examples of that under federal law. I don't want to alarm you guys. I don't know if any of you guys own guns or not. So if you use marijuana, even though that's legal in a bunch of states now, it's still illegal under federal law. You are an unlawful user of a controlled substance.

You are not allowed to own a gun, not allowed to possess a gun. You're committing a felony by doing that. So because of your personal taste in intoxicants, you no longer have this fundamental right to armed self-defense. Same thing goes for people who are convicted of felonies, not just violent felonies, but nonviolent felonies, including drug crimes, other things where the person hasn't really shown any evidence that they're violent or a threat to others, but they still are never allowed to own a gun. If you ever underwent involuntary psychiatric treatment, even if it was decades ago, even if it was, okay, even if it was because people worried that you might kill yourself, right? So you had

suicidal impulses, your relatives had you committed for treatment. And that was decades ago. You still cannot legally own a gun. That seems to me crazy and just fundamentally unjust. But- Well, you asked me what I thought, can I just say what's going through my head? Jump in, jump, jump, jump.

I don't know if it's helpful. So I don't know. That's what's going through my head. No matter what the law is, if I felt I was actually in danger, like everybody, I would get a gun. I'm not going to allow myself to be killed or my loved ones to be killed

because having a gun is illegal. And there's many places, I'm sure, where people have a very, very rational reason to buy a gun and they're going to get it and they're going to buy it no matter what and it's not because they're criminals. So one part of me says that before they can ask me not to get a gun, they have to assure that I'll be kept safe on the whole.

So I guess in a place like Australia where there isn't very much unsafety, they can take the guns away and it works for them. But there is this, I mean, I just, it's like a game theory thing. Like, I don't know, what do you take, how do you take the guns away when you have so many violent criminals out there who are going to have access to the guns? I don't know. I mean, that's the basic problem. And there's, by the way, a thriving black market, even in Australia, in guns.

And so the people who are career criminals, they have a very strong incentive to find guns. That's the tool of the- Of course they'll get them. The average citizen, it's much harder for them. They don't have the connections. They may not be willing to break the law. So you have this unequal situation.

You're putting barriers in the way of law-abiding people, but you're not really stopping criminals from getting weapons. What about shootings? I mean, listen, you know what, in some sense, what we're really arguing about is not gun control, arguing about the fact that we have a violence problem in America that will probably manifest itself until we take care of that problem if possible and we and we spend we spin our wheels about guns when that's probably gonna have a marginal effect on it in my opinion. Isn't it also important to talk about what kind of guns? Like why does any citizen need some sort of automatic or semi-automatic machine gun? I mean that's insane. Well, I guess the question kind of

raises a couple of issues. So the laws that ban what they call assault weapons, they don't, that's not machine guns. So these are semi-automatic guns that fire once per trigger pull, like any other semi-automatic. The thing that distinguishes the guns that are illegal in California, for example, that used to be illegal under federal law, that are illegal in several other states, are military style features, which make very little or no

difference in the hands of somebody who wants to commit a mass shooting, for example. So it used to be under federal law that if you had a bayonet mount, that made your gun illegal. Take off the bayonet mount, now it's legal. Got a folding stock, it was illegal. Get rid of the folding stock, get a fixed stock. Now the gun still operates in essentially the same way. It fires the same ammunition at the same rate with the same muzzle velocity. But one gun based on these sort of arbitrarily chosen features is illegal while another one remains illegal. So that's the fundamental problem with that approach is that you're not really distinguishing between different kinds of guns in a rational way. Now, you can argue that machine guns are qualitatively different in the sense that you hold the trigger down and then fire continuously. But in fact, machine guns have been very strictly regulated under federal law since the 80s. And they cannot be produced for civilian use. New ones can't be produced for civilian use. You can still buy old ones, but you have to go through this rigorous process of licensing and paying a tax and the background check and all this. And they are almost

never used in crimes, you know. But by the same token, so-called assault weapons are very rarely used in crimes. If you look at all gun homicides or even mass shootings, for that matter, most mass shootings are committed with handguns. So we're back to square one about processing probabilities, by the way. This is exactly the same thing. You see one out of how many murders is an AR-15, but you see it, it's visceral, and you focus on it. We can't process it. Yeah, I mean, I think people focus on the master things that are committed with the guns that, you know, like Dianne Feinstein wants to ban.

And they focus less on cases where somebody uses a shotgun or a handgun, even though those cases are actually more common. And it is, I think, fundamentally a sort of aesthetic objection. People see a gun that looks like a military weapon, they say, nobody really needs to own one of those. I can't imagine wanting to own one of those. So really, nobody needs them. And I guess I just object as a libertarian to that idea, regardless of how useful you think these particular weapons are for self-defense, you know, for varmint hunting or target shooting, you know, a lot of people like them for those uses. But even if you say they're not that useful, I still think that the burden should be on the government to say,

we think we have a good reason to ban these particular weapons, that you're not allowed to own them anymore. And these are the reasons. And this debate has been going on for decades. And the side that wants to ban these guns still does not have any good reasons. What about treating guns like we treat automobiles, where you need a certain degree of training? And maybe, although we don't have this with automobiles continuous training there's so many you know using a gun you need you need not only the training of how to use it the uh physical techniques but the legal training i saw a video where i don't know if you saw this

video where the woman and her husband are sort of being harassed uh by by the by by a woman and her daughter and the woman pulls out her gun, you know, and says, back the fuck off or whatever. But she could have just gotten in the car and driven away. I mean, you know, the people need to,

if you're going to own a gun, fine, but you need to really have your shit together. Agreed. The ease with which somebody can obtain a weapon like that in this country is in and of itself just such a failure of okay but dan's point is about about having requirements of training what do you think

professor song uh well i guess the distinction i would point out a couple of distinctions um laws that say you have to get trained and licensed to drive a car do not apply on private property. In other words, you don't have, you have to need a license in order to take the car out on public roads. If you have a big, if you have a farm and you want to drive your car around on the farm or your tractor, whatever, you don't need a license for that. Your kid doesn't need a license for that. So by the same token, if we're going to treat guns like cars, it would imply that you don't need any kind of special permission. But that's a technicality.

To have one in the home for self-protection. Now, by analogy, you could say, well, you should have some kind of training requirement for a carry permit, right? Because now you're taking it out in public. So, and in fact, many, if not most states that issue carry permits, well, they all have certain requirements. Many of them have requirements where you have to go through a certain amount of training before you do. So that might be reasonable, but we have to keep in mind that you're talking about a constitutional right. And, you know, not to be, I mean, I'm not being completely facetious,

but suppose we said books are potentially very dangerous because of the ideas that they communicate. And that's true. Or, you know, computers are very dangerous because of the ideas that people will try to communicate by going onto the internet and writing crazy stuff. they communicate. And that's true. Or, you know, computers are very dangerous because the idea is that people will try to communicate by going onto the internet and writing crazy stuff. Both of those things are true. But we could never imagine requiring people to be licensed before they exercise their First Amendment rights. So I think we need to tread carefully when we're talking about a right that is protected by the Constitution, that is a fundamental human right, at least in my view, before we pile on too many restrictions

before allowing people to exercise that right. Well, when the Constitution was written, the kind of guns that people have access to now didn't exist. That's true. Let's be honest. There's a big, and I might be one of them, because I don't want people to have, I don't know. I don't know where I stand on that. I try to be rational.

But anyway, there's a lot of people out there, although I won't say it out loud, but what they really think is that the Second Amendment is an anachronism. And they regard it as different than all the other amendments. And they try to figure out a way to never say out loud while actually disregarding it entirely. And there's people like libertarians who actually say, no, it's just as vital today as it was then. It's just as valid as free speech. And it's just as much an inalienable right. But you agree with that, right? I mean, the left, they basically roll their eyes at the Second Amendment. They just don't take it seriously. I wouldn't say everybody on the left, because as I mentioned, there are some people on the left who understand the value

of the right to arms. Let's say anybody who might get appointed to the Biden Supreme Court. But yes, I think most politicians, most democratic politicians, at least these days, say, well, we respect the Second Amendment. We just want reasonable restrictions. What they really believe is, I don't give a shit about the Second Amendment, but I have to say I respect it because otherwise I can get into trouble.

And it comes out in sort of their casual disregard for the details of policy. Assault weapon bans are one good example where they just say something because they think it sounds right, or it's what everybody else is saying without giving it much thought. And you would not have that sort of attitude when it came to First Amendment rights, or when it comes to even, you know, the right to abortion. How would you end? Go ahead. Go ahead. Sorry. No, I'm saying that I think there are a lot of left-leaning people who are very suspicious of these justifications for imposing restrictions on abortions, like just things like that are

relatively mild, seemingly, like, oh, the doctor has to have admitting privileges at a local hospital, right? This has gone to the Supreme Court twice now at this point. And the politicians say, we're just concerned about the women's welfare, right? And it sounds very reasonable. But people who support the right to abortion are very rightly suspicious of that. They say that your rationale doesn't make a lot of sense to me. It doesn't really seem to be the health that you're concerned about. It just seems to me like you're against abortion and you want to make it harder to get abortions

by closing down more and more clinics and making it so women have to travel to other states, that sort of thing. So I'm asking people, I guess, who don't share my perspective on the Second Amendment to consider how they would treat similar sorts of restrictions with seemingly rational justifications when it comes to the rights they do value.

This last question, exit question. So being a libertarian, I'm presuming all in on bail reform, on all the things we've spoken about, the police wanting to allow people to have the right to bear arms. What would be your strategy to decrease the violent crime in Chicago if you were mayor within a libertarian basket of options? Oh, good Lord. I don't really have a good answer to that, but I will tell you one element. This is by no means the only element, but one element in a lot of inner city violence

is the war on drugs. The war on drugs creates a black market where people do not have a peaceful legal way to resolve disputes. And when you talk about drug-related homicides, you're really talking about prohibition-related homicides, you're really talking about prohibition-related homicides. So, for example, back in the late 80s, when people would talk about crack-related homicides, I think most politicians and journalists created the impression that this is a bunch of people hopped up on crack, just raring to kill someone, right?

And when researchers actually went and looked at, in New York City specifically, at what were the details of these cases, they found there were virtually no cases like that where somebody was actually under the influence of crack. The vast majority of these cases grew out of black market disputes. So you don't have that sort of violence in the same way that we don't have

that kind of violence related to alcohol. In other words, related to the trade in alcohol, we no longer have that since prohibition was repealed. You would not have that kind of drug market related violence if you repealed drug prohibition. That is not a total solution by any means, that is not going to make, you know, Chicago completely peaceful and calm, but it is one of the policies that I've been writing about for a long time, so I know more about it.

Yeah, I mean, it's a tough, that's why the reason I always hesitate with fully embracing libertarianism, because I have to say, well, in the end, to be an ideology, it also has to work. I have to be able to say, okay, this is it, and I can put it in Chicago, and it would be at least a net benefit. And I don't know. I don't know. I don't know.

If you believe in government at all, I think everyone who agrees in government at all, who agrees that there needs to be a government for some purposes, will agree that protecting people from violent criminals is a central function. Right. Yeah. And and the question is, how best do you do that? And so I mentioned one thing. One other thing I would say, which is sort of a broader idea, is when it comes to arresting people and locking them up. I think there are some people that do need to be isolated from the rest of society for at least a period of time. But we need to be better at deciding who those people are. In other words, you don't just do it because you're mad at this person or because they violated an arbitrary dictate like the drug laws. You do it because you have legitimate grounds to believe that if they are free, that they will go out and hurt people. Okay. So, yes. And this kind of makes

the whole thing full circle. Like we have a legitimate need to move goods across the United States of America. And so therefore we need automobiles and we can do everything we can for safety, but we know there's going to be a body count with automobiles. And this gets lost in a lot of these issues with crime. In other words, yes, I am as outraged as, or more outraged than many on every aspect of the abuse of law enforcement, every aspect of the abuse of constitutional rights. I'm not just paying lip service to it. I really feel this way.

The only thing that troubles me is that in any endeavor to fight crime and keep people safe, it is a certainty. You're going to have this type of thing. You're going to have the traffic deaths. And keeping that in perspective, focusing on these outrages, while at the same time not losing sight of the fact that, A, a certain number are inevitable, and B, we're trying to keep people safe. We're trying to stop murders.

We're trying to stop stores being burned down. We're trying to preserve, we're trying to protect against anarchy. We don't, too often, people are just not sufficiently focusing on both sides of that ledger, and that's where I get hesitant. Now, maybe I'm out to lunch on that. Well, I think, but you're right. You can't completely eliminate police misconduct, police abuse. Or traffic deaths. Or traffic deaths. The excessive use of force or wrongful deaths. But you can try to minimize them by creating systems that hold people accountable, that provide the right incentives. And by the way, I mean, I know

a lot of cops are resistant to at least some of these reforms, especially when it comes to things like unions. But the truth is that they have a very strong interest in making sure that bad cops are held accountable. When they're not, it is bad for their reputations. It's bad for their relationship with the communities that they're serving. And they can't effectively get their jobs done because people don't trust them. Right. So this is who I will listen to. I presume you're for open borders. I can be persuaded sometimes, but presuming I'm not for open borders. the person I will listen to is says, look, we have to control the border. And this is how we're going to do it. We don't want that wall. That wall is ridiculous. But this is how we're going to control the border.

The person I will most like listen to on the Portland thing is the person that says, this destruction of property and lawlessness is unacceptable. And this is how we're going to put a stop to it. And by the way, and we're also, it doesn't involve Homeland Security. We want them out of here because we're going to take care of it this way. We're going to protect you. But that's not what we hear. We hear Portland, blah, blah, blah, Homeland Security, blah, blah, blah. No talk of actually, which is the more serious problem after all, which is the lawlessness and the anarchy. So anyway, Mr. Sondland, we got to wrap it up.

You were, I really enjoyed speaking with you. And I really admire it. Everybody should subscribe to Reason Magazine. It is, first of all, it's a place you never have to fact check. They always get their facts right. They're always very, very fair and principled and well-written. And it's a wonderful institution you guys have got going there.

And I hope it's more and more successful because it's essential, I think. It might be. And I was going to say, happy belated birthday to Noam Dormin. He doesn't make a big deal out of it. Happy belated birthday. 58. 58. I'm just surprised that I'm not the person

that you're most likely to listen to about Portland. Listen. I mean, you know, I mean, I didn't like the seatbelt law when they passed it. Cause I said it was being excused to pull people over, mostly black people to, to, to, to, to hassle them. So I'm, I'm very much in tune with your attitude about this. Cops are always pulling people over for bullshit things and making their lives

miserable. It's happened to me too. All right. So we did okay with our interview, Mr. Sallum? Oh, you did great. Yeah, okay. Thanks for inviting me. I had fun. Where can everybody find you? What's that?

Where can everybody find you and your work? I'm not giving out my address, but... You're going to dox you. Reason.com. We've got all of our content goes up there eventually. If you're a subscriber, you get to see it early. But we've got lots of stuff we generate every day. And then we have the content from the print magazine,

which goes up after a suitable lag after it hits the newsstands. I'm sorry, I just want to tell you about issues of the police and things like that. Reason is really the place you should go because they are quite outspoken against the police or to clean up the police, yet they're not allergic to actually talking about the actual statistics and the actual misperceptions

that there might be about those statistics in the real world, like you might see in an article in the New York Times, where you actually don't even get a sense of what's actually going on in the world. So that's, if you know what I mean. So go ahead. I was just going to say that we would never give away Jacob Sallam's address. The rest assured, if you go there, you're going to get shot. Okay. Good night, everybody. Thanks a lot. At Live from the Table. Good night.. Thanks a lot. Pat live from the table.

Good night. Thank you everyone.