Topic: Law and Civil Liberties

Baltimore and the Rights of the Poor

​Well… there goes our trip to Baltimore. ​We’d been hoping to see the annual Kinetic Sculpture Race, but I see it’s been postponed sine die.

If you’re inclined, now is your chance to laugh. Get it out early.

Here’s a problem in describing how cities work: Any example I might pick to symbolize the decay of Baltimore can always be ridiculed: Weep, weep my friends for that lousy corporate CVS, the one that nobody really liked anyway!

See how easy that was?

The one direct effect I have experienced from the recent riots is that my daughter and I will possibly not be seeing a giant pink taffeta poodle pedaled down the streets of Baltimore by a bunch of probably inebriated art students. I’m unlikely to suffer any of the riots’ more troubling effects, like having to walk an extra half mile to get my asthma medication. Or like getting my car torched.

(And yes: Leading with the pink taffeta poodle might just be the definition of white privilege, but at least I’m, you know, aware of it.)

Cities are hard to explain. They’re made up of millions of tiny little things, and of the networks of trust and expectation that exist among them. Any one of those things—a CVS, a giant pink taffeta poodle, a population of inebriated art students—does not make a city. Almost any one of them can be laughed at, or just dismissed as trivial, in isolation. But good, functional cities are networks. They’re not isolated nodes. A city isn’t the big taffeta poodle, but it might be the expectation that there will be something fun, and free, to do in the streets on some warm spring afternoon. For which we can thank the art students.

President Obama Wields Much More Influence over Police than He Admits

Taking time out of his press conference with Japanese Prime Minister Shinzō Abe on Tuesday, President Obama addressed the chaos in Baltimore following the unexplained death in custody of Freddie Gray. 

While pleading for calm, President Obama lamented his lack of authority to fix the problem:

Now, the challenge for us as the federal government is, is that we don’t run these police forces.  I can’t federalize every police force in the country and force them to retrain.  But what I can do is to start working with them collaboratively so that they can begin this process of change themselves. 

Obama also lamented the lack of political momentum to address the poverty and violence afflicting communities like Baltimore:

That’s how I feel.  I think there are a lot of good-meaning people around the country that feel that way.  But that kind of political mobilization I think we haven’t seen in quite some time.  And what I’ve tried to do is to promote those ideas that would make a difference.  But I think we all understand that the politics of that are tough because it’s easy to ignore those problems or to treat them just as a law and order issue, as opposed to a broader social issue.

Both of those lamentations are misleading.

While it’s true that the federal government generally lacks the power to “force” local police departments to change their behavior, Obama’s comments completely omit his role in administering several federal policies that facilitate, and even incentivize, the abuses and tensions he condemned.

The federal drug war tears apart families through mass incarceration and violence and unjustly forces millions of (especially poor, minority) Americans to carry the stigma of being a convicted criminal. Prohibition, just as it did in the 1920s and 30s, has turned huge swaths of urban America into battlefields in the competition for black market real estate. President Obama has already demonstrated a willingness to ease federal drug enforcement in several states, and there is nothing keeping him from expanding that rollback.  He has also pardoned several non-violent drug offenders, even while federal prosecutors convict new ones every day.

Sec. Clinton’s Criminal Justice Reform Proposals

Today, presidential candidate Hillary Rodham Clinton addressed criminal justice reform in a speech at Columbia University. Earlier in the week, the Brennan Center released a book with chapters from politicians across the political spectrum discussing the need for criminal justice reform, and Secretary Clinton contributed one of them. Now that the Democratic front-runner has joined Republican presidential aspirants in addressing reform, criminal justice appears to be a significant 2016 campaign issue.

Three of Clinton’s policy suggestions are problematic.

First, and perhaps the one that will get the most headlines, she called for making police body cameras “the norm everywhere,” by using federal grants and matching funds. Putting aside the considerable price tag to subsidize the roughly 18,000 American law enforcement agencies to buy body cameras, how officers use those cameras and how law enforcement uses their data must be of utmost concern. As my colleague Matthew Feeney noted in a blogpost yesterday, the proposed body camera policy in Los Angeles would allow officers to review body camera footage before giving statements on use of force incidents. That policy would not serve transparency interests, but instead police officer self-interest.

Throwing money for cameras to local police departments as a solution to police transparency may sound good in theory, but making it work will be much more difficult in practice. 

Second, she argued that low-level offenders, “must be some way registered in the criminal justice system.” The criminalization of drug consumption has been one of the primary drivers of incarceration. Diverting low-level offenses to drug courts, as Clinton suggests, could be an improvement over jailing offenders, but for many of these cases, it’s not clear that the criminal justice system should be involved at all.

Supreme Court Focuses on Equality Under Law

Vindicating conventional wisdom, today’s argument suggested that the Supreme Court will find that states must both recognize and license same sex marriage. That’s remarkable in and of itself considering that a little over a decade ago, we were still debating whether states could criminalize gay sex. But it’s not surprising, given that it represents the most rapid transformation in public opinion on any political issue.

What’s more noteworthy is the reason why the Court is poised to rule this way. While it’s certainly possible that Justice Kennedy will wax metaphysical about the “sweet mystery of marriage,” the majority opinion is more likely to rest on the technical requirements of the Equal Protection Clause. Given that provision’s enforcement of “equality under the law,” states simply cannot devise a reason to draw their marriage licensing regimes in a way that distinguishes between heterosexual and homosexual couples.

Haddock and Polsby On How Riots Occur

“This is not justice. This is just people finding a way to steal stuff,” Carron Morgan, cousin of Freddie Gray, told Kevin Rector of the Baltimore Sun yesterday.  That’s one of the most clear-headed interpretations of yesterday’s mob violence in Maryland’s largest city, which followed the convergence of hundreds of youths at 3 p.m. outside Mondawmin Mall, a shopping center on the city’s west side that also serves as a hub for bus service. In the resulting tumult, groups of rioters burned police vehicles, looted stores and restaurants, and injured more than a dozen Baltimore police officers with flying missiles. 

More than twenty years ago in the Cato Journal, distinguished law and economics scholars David Haddock and Daniel Polsby published a paper entitled “Understanding Riots” that’s still highly relevant in making sense of events like these. Employing familiar economic concepts such as opportunity cost, coordination problems, and free-rider issues, Haddock and Polsby help explain why riots cluster around sports wins as well as assassinations, funerals, and jury verdicts; the group psychology of rioting, and why most crowds never turn riotous; the important role of focal points (often lightly policed commercial areas) and rock-throwing “entrepreneurs” of disorder; the tenuous relationship between riots and root causes or contemporary grievances; and why when a riot occurs the police (at least those in places like the United States and United Kingdom) seldom manage to be in enough places at once, more or less by definition.

LAPD Proposes Worrying Body Camera Policies

Today, the five-member civilian Board of Police Commissioners will consider the LAPD’s body camera video (BMV) proposals outlined by Chief Charlie Beck, which leave much to be desired. If implemented as drafted, the proposals will allow officers to view body camera footage before being interviewed after a use-of-force incident and do not outline under what circumstances the public  can access body camera footage. Such policies will not provide the transparency and accountability Los Angeles residents deserve from their public servants.

At first glance, the policy recommendations look relatively innocuous. The document rightly requires that officers have their body camera on “prior to initiating any investigative or enforcement activity involving a member of the public.” It also outlines when officers should not have their body cameras on (such as when talking to informants, undercover officers, or when in hospitals or rape treatment centers). These requirements mean that the majority of police interactions with members of the public will be caught on camera and that investigations and the privacy of crime victims will be protected.                                

Yet other policy recommendations ought to worry civil libertarians and law enforcement accountability advocates. Section 19 of the document reads in part as follows (bolding is mine):                     

If an officer is involved in a Categorical Use of Force (CUOF), such as an officer-involved shooting, an officer shall not review his or her BWV until authorized by the assigned Force Investigation Division (FID) investigator. Once authorized, the officer shall review his or her BWV recording, and any other relevant BWV footage as deemed necessary and appropriate by the assigned FID supervisor, prior to being interviewed by investigators. An officer may have an employee representative present during the review of the BWV recordings without the FID investigator or supervisor present.

This proposal would provide officers with an opportunity that is not afforded to citizens accused of crimes: to view evidence against them prior to being interviewed by investigators. Police officers involved in a use-of-force incident should not be allowed to view their own body camera footage or the footage captured by colleagues’ body cameras before speaking to investigators. An officer involved in a use-of-force incident should give comments to investigators that have not been influenced by police body camera footage.

The Scandal in Wisconsin

Over at National Review, David French has a chilling article about politicized ‘John Doe’ investigations and police raids directed against persons and organizations who are suspected of challenging union power and/or supporting Scott Walker.

Here is an excerpt:

[After the early morning police raid came] the warnings. Don’t call your lawyer. Don’t talk to anyone about this. Don’t tell your friends. The kids watched — alarmed — as the school bus drove by, with the students inside watching the spectacle of uniformed police surrounding the house, carrying out the family’s belongings. Yet they were told they couldn’t tell anyone at school. They, too, had to remain silent. The mom watched as her entire life was laid open before the police. Her professional files, her personal files, everything. She knew this was all politics. She knew a rogue prosecutor was targeting her for her political beliefs. And she realized, “Every aspect of my life is in their hands. And they hate me.”

For dozens of conservatives, the years since Scott Walker’s first election as governor of Wisconsin transformed the state — known for pro-football championships, good cheese, and a population with a reputation for being unfailingly polite — into a place where conservatives have faced early-morning raids, multi-year secretive criminal investigations, slanderous and selective leaks to sympathetic media, and intrusive electronic snooping.

Yes, Wisconsin, the cradle of the progressive movement and home of the “Wisconsin idea” — the marriage of state governments and state universities to govern through technocratic reform — was giving birth to a new progressive idea, the use of law enforcement as a political instrument, as a weapon to attempt to undo election results, shame opponents, and ruin lives.

Read the whole thing.

Eric O’Keefe related his experience in this matter at a Cato event a few months ago.  And Cato has filed an amicus brief is support of O’Keefe’s petition to the Supreme Court to hear his case and to rein in Wisconsin’s politicized “investigations.”