May 1, 2017 1:47PM

MacDonald, Trump, and Criminal Justice

In a recent article for City Journal titled, “How Trump Can Help the Cops,” Heather MacDonald offers about a dozen recommendations to the White House.  In this post, I want to scrutinize a few of those proposals and some of the arguments behind them.

Let me begin, however, by saying that Heather MacDonald was recently threatened by a crowd of protestors (I use that term very loosely here) while visiting a college campus to deliver a lecture.  That was outrageous and inexcusable.   I have met Ms. MacDonald several times, and while we have some strong disagreements on certain subjects, she has always been friendly and courteous.  She holds strong views and makes forceful arguments, but her claims should be answered with better arguments, not intimidation.  As many others have already noted, it is a sad commentary on the state of our universities that such incidents keep happening.  (Thanks to Harvey Silverglate and his colleagues for what they do at FIRE).

Returning now to MacDonald’s article, she says “Sanctuary cities, counties, and states must be severely penalized. These scofflaw jurisdictions, numbering about 300, refuse to cooperate with Immigration and Customs Enforcement (ICE) efforts to deport convicted illegal-alien criminals.”  She continues, “Over just one week in late January 2017, ICE found 206 criminal aliens who had been released back to the streets in defiance of a detention request.”  Okay, so far this is the standard public safety argument against sanctuary cities.  But here’s the claim that is problematic: “Such disobedience of lawful federal requests undermines the constitutional system.”  This is very misleading.

Last week’s ruling, County of Santa Clara v. Donald J. Trump, summarized the law succinctly:


An ICE civil detainer request asks a local law enforcement agency to continue to hold an inmate who is in local jail because of actual or suspected violations of state criminal laws for up to 48 hours after his or her scheduled release so that ICE can determine if it wants to take that individual into custody. See 8 C.F.R. § 287.7; Neusel Decl. ¶9; Marquez Decl., Ex. C at 3 (SC Dkt. No. 29-3). ICE civil detainer requests are voluntary and local governments are not required to honor them. See 8 C.F.R. § 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[S]ettled constitutional law clearly establishes that [immigration detainers] must be deemed requests” because any other interpretation would render them unconstitutional under the Tenth Amendment). Several courts have held that it is a violation of the Fourth Amendment for local jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because civil detainer requests are often not supported by an individualized determination of probable cause that a crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *9-11 (D. Or. Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining individuals in response to a civil detainer request and does not indemnify local jurisdictions for potential liability they could face for related Fourth Amendment violations. See 8 C.F.R. § 287.7(e); Marquez Decl. ¶¶ 21-15 & Exs. B-D.

By using the term “request,” MacDonald seems to concede that ICE detainers are not lawful orders.  The requests are voluntary.  And yet MacDonald uses the word “disobedience” to describe jurisdictions that choose to decline some requests from ICE.  Again, this is quite misleading.  Let’s say one of my neighbors knocked on my door and said he had changed his mind about hosting a party for his son’s soccer team and wanted to know if I would be willing to host the 30 players and their parents in my home instead.  Let’s say that I resisted the temptation to close the door in his face, but merely declined the peculiar, but lawful request.  Would anyone say that I was disobedient to my neighbor’s lawful request?  No—because disobedient means a refusal to obey a rule or lawful command.  If a homeless person asks you for $10 and you walk on by, would MacDonald say that you were “disobedient” to the homeless person’s lawful request?  I doubt it—and for the same reason it is wrong to say that sanctuary cities and counties are disobedient.  (MacDonald does not explain her additional claim that that by opting to decline an ICE request, cities would be “undermining our constitutional system.”  As the passage above notes, cities might well be violating the Constitution by keeping a person locked up without probable cause.)

Next, MacDonald writes that community members have an obligation to “obey police commands and not resist arrest.”  According to MacDonald, “the vast majority of questionable police shootings over the last several years, as well as the justified police shootings, were triggered by the noncompliance of the victims.”  There are several problems here.  First, noncompliance cannot excuse brutality.  If a shoplifter keeps running after a police officer yells “Halt!” the officer would not be justified in shooting the thief in the back.  When Eric Garner was accused of selling illegal cigarettes on the streets of New York City, he should have put his hands behind his back to be handcuffed, but his noncompliance did not justify the chokehold that led to his tragic death

Second, the police are trained to get people to waive their constitutional rights by blurring the distinction between a command and a request.  So if an officer says, impatiently, “Would you empty the contents of your purse on the hood of the car for me?”  We can’t know whether that is a request or a command.  The Courts say citizens have to assert their rights or they may be deemed waived. To assert our rights against self-incrimination and against consensual searches necessarily entails some degree of “noncompliance” with what the police want.  MacDonald ignores these very serious legal dynamics by telling us to “Comply now, Complain later.”   I hosted a book forum with author James Duane last year in which he lays these issues out in some detail.  Go here for his terrific talk.

MacDonald claims the “vast majority of questionable shootings over the past several years, as well as the justified police shootings, were triggered by the noncompliance of the victims.” This assertion is not supported by data, a reference to another work, or extended argument.  Recall that South Carolina Officer Sean Groubert ordered Levar Jones to produce identification.  When Jones moved to retrieve paperwork from his vehicle to comply, the officer shot him.  Recall also the case from Minnesota involving Philando Castile.  When Officer Jeronimo Yanez pulled over Castile’s girlfriend for a traffic stop, Castile, in the passenger seat, volunteered that he had a concealed firearm and had a lawful permit.  When Castile calmly explained that he wanted to produce his identification and permit, the officer shot at him seven times and killed him. 

Last week, Supreme Court Justice Sotomayor highlighted the case of Ricardo Salazar-Limon, who was pulled over by a Houston police officer for suspected DUI.  Salazar-Limon got out of his car, reluctantly, at the officer’s direction.  When the officer made a move to handcuff him, he started to walk away.  According to Salazar-Limon, within seconds of hearing the officer’s command to “halt,” he was shot.  All agree that police have every right to defend themselves, but we also know that police will be dealing with situations where people do not understand English, where people have hearing problems, where people like Salazar-Limon have had too much to drink.  We can’t have officers using deadly force against people when there is noncompliance with their orders.  As Sotomayor noted, Salazar-Limon’s claim of excessive force was dismissed prior to trial.  The officer may have prevailed at trial with his self-defense claim, but the jury should have been able to hear Salazar-Limon’s side of the story.  Instead a judge dismissed the brutality claim by granting the officer immunity. 

To be clear, I am sure there are shooting cases in which officers shouted instructions, such as “keep your hands where I can see them,” or “get down on the ground,” and the suspect did something else, which might have prompted a reasonable officer to fire in quickly unfolding circumstances.  However, the proposition is whether such scenarios are in fact the “vast majority,” as MacDonald claims.  The point here is that no support is offered for the claim.  We should have more information about police shootings than we do.  Thanks to the Washington Post and the Guardian, we are finally getting a better understanding of these cases.

Last, MacDonald claims that “drug enforcement play no role in disproportionate black incarceration rates.”  Another bold claim, but, again, misleading.  MacDonald draws the attention of readers to incarceration rates, but is that the only place to consider?  When the prisons are filled to capacity, the system starts backing up.  The river of drug cases has to be dealt with somehow.  Officials start scrambling.  Put 4 men in cells designed for 2.  Stack bunk beds in the cafeteria.  Use the county jail, instead of the state system.  Send some cases to drug court. Send more cases to the federal system.  Use supervised probation when necessary. 

The drug trade offers young minority men a chance to make some money.  The police are told to make drug busts.  These dynamics result in constant clashes between police units and young minority men.  Of course, they don’t go to state prison for the first offense of selling or transporting drugs—especially if they’re still in their teens—but the rap sheet starts growing.  After a while, bail will be denied.  If the young men don’t get killed in a turf dispute, they will eventually get a prison sentence.  The Manhattan Institute’s own John McWhorter has put it well: “If the War on Drugs were terminated, the main factor keeping race-based resentment a core element in the American social fabric would no longer exist.  America would be a better place for all.”   MacDonald misses this important insight as to how the drug war harms black Americans.

For related Cato work, go here, here, and here.