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Tag: The Constitution

  • On Clearing Corners and Drug Arrests

    [From pages 65, 83, 49, and 55 of Cop in the Hood]

    Clearing the corner is what separates those who have policed from those who haven’t. Some officers want to be feared; others, respected; still others, simply obeyed. An officer explained: “You don’t have to [hit anybody]. Show up to them. Tell them to leave the corner, and then take a walk. Come back, and if they’re still there, don’t ask questions, just call for additional units and a wagon. You can always lock them up for something. You just have to know your laws. There’s loitering, obstruction of a sidewalk, loitering in front of the liquor store, disruptive behavior.” Police assume that if the suspects are dirty, they will walk away rather than risk being stopped and frisked. You can always lock them up for something, but when a police officer pulls up on a known drug corner, legal options are limited.

    Because of these problems and the “victimless” nature of drug crimes, most drug arrests are at the initiative of police officers. On one occasion, while driving slowly through a busy drug market early one morning, I saw dozens of African American addicts milling about while a smaller group of young men and boys were waiting to sell. Another officer in our squad had just arrested a drug addict for loitering. I asked my partner, “What’s the point of arresting people for walking down the street?” He replied: “Because everybody walking down the street is a criminal. In Canton or Greektown [middle-class neighborhoods] people are actually going somewhere. How many people here aren’t dirty? [‘None.’] It’s drugs…. If all we can do is lock ’em up for loitering, so be it.”

    The decision to arrest or not arrest those involved in the drug trade becomes more a matter of personal choice and police officer discretion than of any formalized police response toward crime or public safety.

    Although it is legally questionable, police officers almost always have something they can use to lock up somebody, “just because.” New York City police use “disorderly conduct.” In Baltimore it is loitering. In high- drug areas, minor arrests are very common, but rarely prosecuted. Loitering arrests usually do not articulate the legally required “obstruction of passage.” But the point of loitering arrests is not to convict people of the misdemeanor. By any definition, loitering is abated by arrest. These lockups are used by police to assert authority or get criminals off the street.

    Police have diverse opinions about the drug problem. I asked my sergeant if it was more effective to arrest drug addicts or to remain on and patrol the street to temporarily disrupt drug markets. He surprised me by choosing the former:

    Arresting someone sends a better message. Locking up junkies makes a difference. This squad used to have more arrests than five of the districts. We used to go out every night and just make arrest runs as a squad. Start with six cars, like a train. Fill one up, then you have five cars. Continue until you’re out of cars. At 1 am, everybody on a drug corner is involved with drugs. We locked them up for loitering. Got lots of drugs, a few weapons, too. After a few weeks, everything was quiet. Eventually it got so that we had to poach from other districts. We ran out of people to arrest. You think the neighbors didn’t like that?

    [Note: This happened in the late 1990s, before O’Malley’s now-maligned “zero-tolerance” push.]

  • Clarence Thomas, misdemeanor convictions, and constitutional rights

    [Note: I wrote this back in March. It never ran. It’s no longer even relevant, since the Supreme Court ruled in June (Voisine v. United States) that you can lose your right to own a gun over a misdemeanor conviction. But I still thought I’d let it see the light of day.]

    On February 22, Supreme Court Justice Clarence Thomas asked his first question from the bench in over 10 years. It might have been worth the wait.

    Most of the news coverage was about the fact he spoke at all. And, of course, of all the questions he could have asked, this one was about giving guns to more people. From the New York Times:

    Justice Thomas’s questions on Monday came in a minor case on domestic violence convictions and gun rights. He made a series of inquiries about whether misdemeanor convictions can permanently suspend a constitutional right.

    …

    “Ms. Eisenstein, one question,” he started, according to a transcript released by the court. “This is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”

    After some back and forth, Ms. Eisenstein said she could not think of one, though she added that First Amendment rights could be affected in comparable settings.

    “O.K.,” he said. “So can you think of a First Amendment suspension or a suspension of a First Amendment right that is permanent?”

    She could not.

    Thomas continued:

    You’re saying that recklessness is sufficient to trigger a violation misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which [is] a constitutional right.

    If the right to own a gun is prohibited because of one misdemeanor plea, can government also take away freedom of speech or the right to vote on a similar pretext?

    Of gun restrictions are particularly relevant to police officers. The Brady Bill, enacted in 1993 after President Reagan and his press secretary, James Brady, were shot, (among other things) forbids anybody convicted of domestic violence from legally possessing a gun. This means that a person who plead guilty to even one domestic-related misdemeanor can’t be a police officer. It’s the only absolute automatic disqualifier to being a cop.

    “Good,” you might say, “people who beat up their partner shouldn’t have guns or be cops!”

    And I’d agree with that. But is our justice system fair? Does it only entraps the guilty?

    You don’t even have to assault someone to be arrested for domestic violence. On a good day police officers’ discretion can weed out most of the innocent before they get arrested. In some states (Maryland, for instance, but not New York) cops cannot arrest people for misdemeanors unless police witness the crime. But in domestic cases the law is different. Police will arrest you if there is any sign of physical injury. But people lie to cops and judges all the time. If you really want to, it’s quite easy to get somebody locked up for domestic violence.

    Sometimes, and it’s never politically correct to bring this up, loved ones be crazy. Many years ago a (female) student of mine was (I do believe) being stalked by her crazy ex-boyfriend. When she called police she got locked up because he was clever enough to go to a judge first, lie, and get a warrant for her arrest. It happens. The irony of a domestic violence victim being arrested because of strong domestic violence laws was not lost on her or me.

    She wanted to be a cop. If she plead guilty, perhaps just to get out of jail that night, she won’t be. And what if she were a police officer?

    Or imagine a case where you get into a small fight with a friend. Nobody is seriously hurt, but somebody called police. You’ve made up by the time police show up. Cops ask if anybody is injured. You both have nothing more serious than minor scratches. That would be that…. “No police services needed,” as the Baltimore Police code goes.

    Unless… unless the case is “domestic.” In Maryland “domestic” means you’ve once had sex. In New York “domestic” expands to people living under the same roof. (Though I’m not certain if two sisters fighting in New York City counts as “domestic violence” under the Brady Bill. I hope not). If it’s “domestic,” somebody is going to jail. That’s how the law works.

    Domestic violence laws eliminate the safeguard of officer discretion, and, unlike non-domestic assault, force police to arrest. Perhaps a domestic victim was defending herself, but gave better than she got. Domestic violence laws handcuff police by forcing police to handcuff others. Basically — and I don’t mean to discount the seriousness of real domestic abuse and progress made in reducing domestic violence — when cops show up to a domestic squabble, two people have had a fight, and cops arrest the winner.

    Innocent people do get arrested. Getting out of jail is one of the reasons people plead guilty to a crime they didn’t commit. We should all remember Kalief Browder. He spent three years in Rikers Island jail for a minor crime of which he was probably innocent. He just wanted his day in court. He never got it. After three years of incarceration (and abuse by inmates and guards) prosecutors dropped all charges. A short time later, after being released, he killed himself.

    Now perhaps you’re willing to accept a few innocent arrests if it reduced crime. But the irony is that mandatory and preferred-arrest domestic-violence laws, because they’re harsh and reduce police discretion, do very little to reduce domestic-violence. And the effect of arrest on the poor and employed — to whom the law is disproportionate applied — is harmful: arrests increase domestic violence recidivism. The laws do not work.

    Take this case I wrote about in In Defense of Flogging (The title, I feel I should point out, does not refer to domestic violence):

    Once I responded to a domestic call after a man came home, admitted to catting around, got yelled at, and earned a big fat lip when his wife slugged him. He deserved it, he told me (and he probably did). But while his wife was yelling, neighbors called the police. Guess what? She went to jail.

    That’s the way it is. That’s how mandatory and preferred arrest laws work on the street. Of course had this case not been domestic-related, I never would have locked her up. And I assume she plead guilty (since she was) to misdemeanor assault. Now she has a record for domestic violence and can never legally own a gun.

    When you combine overly restrictive domestic-violence laws with overly permissive prosecutorial discretion, you get a perfect storm of injustice. Thomas’s point, a valid point, I think, is rarely does one misdemeanor plea have such constitutional — and in a cop’s case, occupational — consequences. It’s time to rethink these laws.

  • Illinois v. Wardlow (2000), the Good Parts Version

    For all ya’ll too lazy to read Illinois v. Wardlow (2000), here is the key part that relates to the constitutionality of chasing suspects who run from a drug corner. The Freddie Gray scenario is almost exactly similar to Wardlow. (I’ve selectively bolded and also removed the citations, but you can click through for the court cases and such):

    In Terry v. Ohio, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop….

    [Officers were] converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis.

    In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. … The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.

    Such a holding is entirely consistent with our decision in Florida v. Royer, where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. And any “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

    Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the Fourth Amendment.

    It’s rare that one decision so perfectly mirrors a current case. And this makes it all the more absurd that there’s any question about the police officers’ stop of Freddie Gray.

    Also, it’s worth pointing out, as I did in Cop in the Hood, that Wardlow and Terry are both great examples of how those who live in the high-crime ghettos are granted less constitutional protection than those who live in “nice” neighborhoods.

    Police in a poor black neighborhood can (legally) get away with things that would never fly in a nice part of town. There is is a different constitutional standard based on geography and crime (and hence race). Of course people aren’t running from drug corners — or shooting each other so much — in neighborhoods without public drug dealing. Crime and “commonsense judgements” do matter. But at some level it’s still kind of messed up. It reminds me of Anatole France’s famous line: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

  • “Woman Not Guilty of Chemical Warfare; Constitution Saved”

    Nice article by Garrett Epps in The Atlantic about Bond v. United States, prosecutorial overreach, and rare victory for the 10th Amendment:

    There’s an established rule of construction called the avoidance doctrine: If there are two ways of reading a statute, and one way would cause a serious constitutional problem, a court should read it the other way. That’s what the majority in Bond did. It concluded that Congress did not intend its statute to extend to local disputes like the Bond-Hayes feud.

    …

    Prosecutorial overreach happens every day. It is to the Court’s credit that six of its justices contented themselves with addressing this real problem, leaving the terrifying specter of treaty abuse for a case that really presents it.

  • The Right to Film Police

    A US Court of Appeals in Massachusetts has said that arresting someone for filming the police is a constitutional violation.

    A guy, after we answered in the affirmative as to whether his phone was recording audio, was charged with violation of the wiretap statute, disturbing the peace, and aiding in the escape of a prisoner. The last charge was particularly absurd. But more importantly the court said that it’s not a wiretap if it’s not secret. The court also said the arrest violated the fourth amendment and did not give the officers qualified immunity.

    People still get arrested for taking pictures and videos of police. But I suspect this will happen less and less, especially when cops lose their immunity after making bad arrests (of the guy taking pictures). Besides, given advances in technology, attempts to prevent people from taking pictures and videos is becoming more and more a Sisyphean task.

    As a police officer, I did no not love being filmed. It’s not that I had something to hide, it’s that I don’t want a video taken out of context. And sometimes police officers dohave to use ugly force. Sometimes the public and the media really does not understand.

    A lot of “brutality” videos you can see on youtube show completely justified force (especially when trying to get somebody’s hands from under them to behind their back). So if I’m using justified force, I’d prefer not to see my tough arrest on the evening news used as an “example” of brutality.

    I understand and even agree with all the reasons you don’t want to be recorded. But… you can’t always get what you want. I do not want a society in which unaccountable police arrest people for taking their picture. Recording police (if you’re not interfering) should be considered a constitutional right.

    Of course phones and cameras, especially when somebody is resisting arrest, can still be seized as evidence. If somebody is resisting arrest, a recording isgood evidence. And having to say goodbye to your phone for months might serve as a bit of a deterrent to whipping it out and pressing record. But potential police use of this trick will be tempered by a natural desire to avoid extra paperwork.

    What’s interesting is that this debate makes some peoples’ head explode as it highlights the conservative divide between lip-service to small government and an authoritarian impulse. It makes me think once again of George Orwell’s precient line that the “real division is not between conservatives and revolutionaries but between authoritarians and libertarians.”

  • Kill Kill Kill (part 2)

    The decisionjust seems to be just a general free-speech issue. They compare video games to books:

    Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones.

    Just because there’s a new media doesn’t mean there’s a new exception to be carved out of the 1st Amendment. I like our Court in general on 1st-Amendment issues. It’s all too rare to see the government limiting the power of the government (unlike, say, in cases involving the 4th Amendment). Here’s what I think is the meat of the Court’s decision:

    We have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” US v. Playboy (2000).

    But I still don’t understand why nudity is worse than violence. For speech to be banned, it needs to be obscene. But I don’t follow this logic:

    Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York, 390 U. S. 629 (1968). That case approved a prohibition on the sale to minors of sexualmaterial that would be obscene from the perspective of a child.

    Why is violence somehow less obscene than, say, a naked woman?

    But the best part of the decision? This attack, in a footnote, directed at the court’s worst justice:

    JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none.
    …
    Our point is not, as JUSTICE THOMAS believes, merely that such laws are “undesirable.”… Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority.
    …
    This argument is not, as JUSTICE THOMAS asserts, “circular.” It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.

    Damn, yo! This is a full-on Supreme Court Smackdown! (And now I gotta look up ipse dixit.) Why didn’t Scalia just straight up call Thomas an idiot? Oh, wait, he did.

    I also like that Choose-Your-Own-Adventure books are now officially enshrined in constitutional law (I admit: I “turned back.” Didn’t we all?). Says the Court: “All literature is interactive.”

    And Scalia, who lives up to his reputation as the liveliest writer on the bench, has one final dis for one those idiotic over-reaching psychological studies:

    One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.

  • Kill kill kill

    If the state can censor sexfrom the eyes of children, why can it not censer violence? Isn’t sex better than violence? It certainly is more fun.

    I guess I’ll have to read the Supreme Court’s decision…

    And consider this: perhaps the more violent video games of the past few decades have actually contributed to the dropin crime. I’m not saying it has, but it’s a hypothesis I’d be very willing to consider.

  • “I swear to uphold…”

    When I was a cop, I rather enjoyed swearing to uphold the constitutions of the United States and Maryland. It seemed like quite an honor. (Even if the actually oath was done very matter-of-factly in some cubical by a woman who didn’t seem to care. And honestly, I’ve never read the Maryland Constitution.)

    Oath Keepers is an organization set up to persuade America’s police officers and soldiers to refuse to carry out unconstitutional orders. Fair enough. But somehow it’s considered controversial and right wing.

    There’s an interesting interview with the founder, Stewart Rhodes, in Reason magazine.

  • The New Republican Bill of Freedom

    With all this talk of changing the constitution for this and that (and yes, it’s strange that supposedly anti-big-government politicians always want to violate the explicit purpose of the constitution that protects the rights of citizens from big government), I’ve never quite understood the ultimately vision of conservative Republicans. What do they actually want? What if they weren’t restricted by politics, common sense, or the slightest sense of human decency? If the Bill of Rights is for commies, what are constitutional amendments that “real Americans” could rally behind?

    Let’s pick up a newspaper in the year 2013:

    WASHINGTON — Supported by super-majorities in both houses on Congress, the Republican president fulfilled a major campaign promise and sent The New Bill of Freedom to the states for constitutional ratification. Surrounded by senators, representatives, and five Supreme Court Justices on the steps of the Capital, President Palin marked this historic event with a speech to thousands of supporters:

    This Bill of Freedom reflects the original intentions of our Founding Fathers. The old Bill of Rights [boos from crowd] was all about Big Government protecting big terrorists [more boos].

    Oh, yes. No longer will terrorists and drug dealers and flag burners and abortionists and immigrants and sodomites and mainstream media — no longer will [making air quotes] “those people” be allowed to run amok because of — what do those big-L liberals [boos] call them? — technicalities! Today we get the rights we want. Today we get the freedom we deserve! [cheers]

    The new conservative Bill of Freedom [applause] fixes the Bill of Rights — or should I say [winks] Bill of Lefts? [laughter] — that were so easy for activist Democrat judges to misinterpret [loud boos]. One hundred years is big-G government and big-S socialism is enough! [mixed boos and cheers]

    With this New Bill of Freedom, America is ready for the twentieth century to bring real freedom to real Americans! [cheers] Eighty-seven years ago President Herbert Hoover stood right here and said:

    When we are sick, we want an uncommon doctor; when we have a construction job to do, we want an uncommon engineer, and when we are at war, we want an uncommon general. It is only when we get into politics that we are satisfied with the common man.

    Oh yeah well today he’d have to be politically correct and say [winks] “woman” [light laughter]. Well today, lipstick and all [chuckles], I am that common woman! [applause]

    It is for us to be dedicated here to the unfinished work which Hoover and Reagan fought for. It is for us to be here dedicated to the great task remaining before us — that this nation, under God [brief moment of silence], shall have a new birth of freedom — and that government of the people, by the people, for the people, will not perish from the earth! [loud applause, crowd breaks into spontaneous singing of campaign theme song, “We could use a man like Herbert Hoover again!”]

    The New Republican Bill of Freedom

    Amendment I: Congress shall make no law prohibiting people’s right to pray, in either the Judeo or Christian tradition, in public or private; or abridging the freedom of spoken speech or the rights of corporations to give money to politicians.

    [No more separation of church and state. Brings back school prayer. And without naming any religion in particular, limits “others” from building houses of worship like they belong here. Also sensibly limits the liberal press and expansive interpretation of “speech.”]

    Amendment II: The right of the people to keep and bear arms shall not be infringed.

    [No more grammar debate here.]

    Amendment III: Marriage shall be defined as a union between one man and one woman.

    [Banning gay marriage is much more important than whatever the Third Amendment used to say. You don’t know the Third Amendment anyway.]

    Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects shall not be violated but upon reasonable suspicion, supported by oath or affirmation.

    [Probable Cause is too high a standard. And why bother with all those other “technicalities”?]

    Amendment V: No innocent person shall be compelled in any criminal case to be a witness against himself; nor shall private property be taken for public use. In all criminal prosecutions, the accused shall enjoy the right to a speedy trial.

    [Why protect the guilty? The innocent have nothing to hide. And who miss grand juries?]

    Amendment VI: The Congress shall have power to prohibit the physical desecration of the flag of the United States.

    [Rights of the criminals again. Blah blah blah.]

    Amendment VII: Only persons born to US citizens are citizens of the United States.

    [That’ll fix the Fourteenth Amendment. Besides, a jury trial for common law disputes in excess of twenty dollar? Get real. The Seventh Amendment has been obsolete even since we abandoned the gold standard.]

    Amendment VIII: Punishment shall be appropriate to the crime.

    [Like we want liberal judges defining cruel and unusual. That’s how they ban the death penalty.]

    Amendment IX: The right to life of the unborn is paramount.

    [The old amendment was just some constitutional mumbo-jumbo anyway.]

    Amendment X: Respecting the rights reserved to the states respectively, or to the people, Amendments Thirteen through Sixteen are hereby repealed.

    [If you gotta look them up, how important could they be?]

  • Shut yo’ mouth!

    The Supreme Court ruled that suspects must explicitly tell police they want to be silent or want a lawyer to invoke their Miranda protection during interrogations. I’m pretty liberal guy, but I’m all for this conservative decision by the court.

    Look, if you don’t want to be convicted, the smartest thing you can do is shut up. Period. Don’t talk. Demand a lawyer. It really is that simple.

    But if everybody did just that, a lot of criminals would get away murder.

    The point of the 5th Amendment isn’t so that people don’t confess. The point of a ban on forced self-incrimination is so that we don’t torture people–guilty and innocent alike–into confessing.

    I don’t want forced confessions. I don’t want false confessions. But I’m all for confessions. I mean if we’re so worried about the right to remain silent, we could ban allinterrogation of suspects. But that would be crazy.

    There’s not a hood rat in Baltimore or a person in America who doesn’t know his or “right to remain silent.” If somebody doesn’t want to exercise that right, good for the rest of us. It shouldn’t be the job of police to tell people to shut up.

    You’ve got a murderer in a room. Three hours later police invoke God and the bad guy fesses up.

    Good job!