Criminal Law and Civil Liberties

March 23, 2020 12:58PM

The Constitutional Police Power, In And After An Emergency

The framers of American government were only too well aware of epidemics as a danger to human life (here’s a list of more than 30 such outbreaks that occurred between 1763 and 1783; Alexander Hamilton and his wife Elizabeth, after both contracting yellow fever and surviving, then underwent quarantine). And American constitutional law has from the outset recognized and countenanced a “police power” in state government during true emergencies to intercept the sorts of otherwise harmless movements and actions that can turn well‐​meaning individuals into vectors of physical harm to follow citizens. At the same time, as they also knew, freedom would count for little were these emergency powers to set the measure for what government can do to citizens in circumstances short of that dire urgency.

I’m grateful to Ingrid Jacques of the Detroit News for quoting me in her column on this subject yesterday:

“’We have no collective memory of going through this kind of thing,’ says Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. ‘It’s an invasion of rights we normally wouldn’t let the government get away with.’

“We’re all getting a crash course on what exactly the government can do in times of crisis. It turns out, it’s a lot….

“… Once the virus subsides, limited‐​government champions should watch whether all the regulations in effect during the threat go away, too.

“’The government must put away these dangerous weapons once the emergency is over,’ says Olson.”

For a sense of the sweeping powers governments sometimes assert in the name of quarantine, isolation and lockdown—definitely not meant as an endorsement—check this New York Times account. (It at least quotes a former NSC official who says “The American way is to look for better outcomes through a voluntary system.”)

Because courts applying constitutional law tend to treat government power as at its legitimate zenith during a “hot” emergency, and (this is nothing new) grant maximum short‐​term deference to the authorities at such times, ordinarily robust constitutional rights bend at least until the immediate threat to life has passed.

Freedom to assemble and freedom to worship are central to the First Amendment, yet courts have upheld and would uphold bans on religious and political assemblies in times of epidemic. Second Amendment rights that courts would ordinarily enforce, such as to operate a gun store or get processing for a required permit, may also be suspended without a short‐​term judicial remedy. Indeed, the judicial remedy needed to enforce any right may fail if the courts are closed owing to an epidemic.

True emergencies do not last. When this is over, as it will be, both the courts’ vigilance and ours must be directed toward making sure the government promptly and fully relinquishes whatever emergency powers it has flexed. We will face a body of opinion intent on pressing that exact advantage, as in this Chicago Sun‐​Times column from Friday:

If we can fight a war against an enemy we can’t see or touch, we certainly could use draconian measures to fight the gun violence in our neighborhoods as well.

Watch out for this kind of thinking. We’re going to hear a lot more of it.

March 20, 2020 11:55AM

A Picture Is Worth a Thousand Words — and a Prison Sentence

Bethany Austin did nothing society would reasonably call wrong. She received, without asking, sexually explicit images that her fiancé’s paramour sent to a shared cloud account. She quietly called off the engagement.

That’s where the story should have ended. But her former fiancé decided to spread a hurtful and untrue rumor that he had ended the relationship because Ms. Austin was crazy and refused to cook and clean for him. To clear her good name, Ms. Austin wrote a letter to her friends and family explaining what really happened. She attached some of the images as proof. Now the ex‐​fiancé and his paramour are using Illinois’s “revenge porn” law to punish her for speaking, and the state is happily obliging.

Illinois law makes it a felony to disseminate sexual images that a reasonable person would know are meant to remain private and would or should know that the subject did not consent to the dissemination. This law is the most expansive in a nationwide legislative effort to combat the grotesque practice of “revenge pornography,” where a jilted lover maliciously spreads private images far and wide after a break‐​up. Unlike other states, Illinois law is not limited by the intent of the person disseminating the images.

Under the First Amendment, a law that discriminates based on the content of speech is unconstitutional. Private parties can still sue for defamation. These suits are hard to win when the offending speech is about matters of public concern—like politics, celebrities, and news stories—rather than private matters, like malicious slanders about your neighbors’ children. This public/​private distinction doesn’t matter in criminal law.

The government can also regulate the time, place, and manner, of speech as long as the law applies equally to all speech. In Reed v. Town of Gilbert (2015), the Supreme Court held that regulations on when and where signs could be displayed may have been constitutional, but a sign code with different rules for religious and political signs was unconstitutional.

Additionally, laws can regulate unprotected speech—including threats, obscenity, and incitement to violence—but if the law deters a significant amount of protected speech in addition to the unprotected speech it targets, then it is unconstitutionally “overbroad.”

Responding to the complaints of the ex‐​fiancé and his paramour, Illinois charged Ms. Austin under the revenge porn law. She moved to dismiss the criminal charges against her, citing the First Amendment protections for her speech. The trial court found the law unconstitutional, but the Illinois Supreme Court reversed.

Cato, joined by DKT Liberty Project, has filed an amicus brief supporting Ms. Austin’s petition to the U.S. Supreme Court, arguing that the Illinois court incorrectly distinguished between private and public speech and that, in any event, the state law is not a content‐​neutral time, place, and manner restriction, and is overbroad.

The Supreme Court will decide whether to take up Austin v. Illinois later this spring.

January 17, 2020 5:00PM

As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight

The Wall Street Journal recently published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the raging battle against qualified immunity, a court‐​confected doctrine that provides rights‐​violating police and other government officials with what Cato has described as an “unlawful shield” against accountability for their misconduct. IJ’s focus on this issue will be a welcome addition to a fight that Cato has been waging for nearly two years with help from an astonishingly cross‐​ideological cast of public interest organizations ranging from the ACLU and the NAACP Legal Defense Fund to the Alliance Defending Freedom and the Second Amendment Foundation.

Cato launched its strategic campaign to challenge the doctrine of qualified immunity—an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s—on March 1, 2018. Cato’s kick‐​off panel featured Judge Lynn Adelman of the Eastern District of Wisconsin, who has sharply criticized the doctrine; Professor Will Baude, whose enormously influential law review article has formed the backbone of the legal challenge to qualified immunity; and Andy Pincus and Victor Glasberg, two practitioners with ample experience confronting the harsh realities of the doctrine. Shortly after that conference, George Will noted on Meet the Press that there would be a “national discussion” about qualified immunity, “led by the Cato Institute.”

The centerpiece of Cato’s strategic campaign to take down qualified immunity has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. Since launching the campaign in March 2018, Cato has filed dozens of additional amicus briefs in our own name, but we have also organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity—what Judge Don Willett recently called “perhaps the most diverse amici ever assembled.” This “cross‐​ideological brief” was first filed in July 2018, in support of the cert petition in Allah v. Milling, a case involving the illegal and unconstitutional solitary confinement of a pretrial detainee in Connecticut for nearly seven months. So unsettled was the state by the onslaught of amicus support that it settled the case by offering the plaintiff more to dismiss his cert petition than he had been awarded at trial.

A diverse array of lower court judges has also been increasingly critical of qualified immunity, with many explicitly calling for the Supreme Court to reconsider the doctrine. To underscore the incredible ideological breadth of the opposition to qualified immunity, it is worth noting that the judicial critics of the doctrine now include nominees of every single President since Carter, as well as one of the two remaining LBJ appointees on the bench. To give just a few notable examples:

  • Judge Don Willett, a Trump appointee to the Fifth Circuit, has explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly,” and sharply notes that “this entrenched, judge‐​created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.”
  • Judge James Browning, a George W. Bush appointee to the District of New Mexico, has now issued several opinions that include a blistering criticism of the Supreme Court’s “clearly established law” standard, and citing Cato’s amicus briefs for the argument that “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.”
  • Judge Dale Drozd, an Obama appointee to the Eastern District of California, cited Cato’s March 2018 forum in his discussion of the campaign to challenge qualified immunity, and announced that “this judge joins with those who have endorsed a complete re‐​examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”

Now, almost two years into Cato’s campaign, the Supreme Court finally appears to be preparing to confront the question of whether qualified immunity should be reconsidered. There are currently six major qualified immunity cert petitions pending before the Court, and the manner in which the Supreme Court has repeatedly rescheduled consideration of these cases strongly suggests that the Justices may be preparing to consider them together—which in turn suggests that they’re looking closely at the fundamental question of whether qualified immunity should be reconsidered. We first discussed this possibility back in October of last year, and we now have even more evidence suggesting the Court may be preparing to take up this issue. Here are the key details about each of the six cases:

  • Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐​law roots of qualified immunity.”
  • Zadeh v. Robinson and Corbitt v. Vickers. We’ve discussed these cases in more detail previously, but Zadeh is the case where the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. And Corbitt is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both cases are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross‐​ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.
  • Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The cert petition in this case was filed on November 26, 2019, and while it doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.
  • West v. Winfield. As related in the IJ op‐​ed mentioned above, police officers told Shaniz West that they were looking for her ex‐​boyfriend and thought he might be inside her house, so she gave them permission to go in and look. But instead of entering, they instead called a SWAT team, who bombarded it from the outside with tear‐​gas grenades, effectively destroying her home and all her possessions (the ex‐​boyfriend wasn’t even inside). The Ninth Circuit granted immunity to the officers, on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that Ms. West gave to allow officers to enter her home. Yesterday, the IJ filed a cert petition on behalf of Ms. West asking the Court to clarify and limit the scope of qualified immunity. As noted, this case marks the launch of IJ’s “Project on Immunity and Accountability,” which is focused on challenging doctrines like qualified immunity that erroneously permit public officials to operate above the law. IJ has previously joined various iterations of the Cato‐​conceived cross‐​ideological brief described above, but we’re looking forward to filing our own amicus brief in support of IJ’s cert petition in West.

The Court has yet to make a final decision about any of these cert petitions, but there’s good reason to think the Justices are preparing to consider at least some of them jointly. First, in every single one of these cases (except West, as it was just filed yesterday), the Court has “called for a response” to the cert petition. Although a CFR alone is no guarantee of a cert grant, it’s an encouraging sign that at least some of the Justices are looking closely at the case, and want to hear more from the respondents about the issue.

Second, the Court’s repeated rescheduling decisions strongly suggest that they’re planning to consider them together, meaning they’re likely to address the fundamental, underlying question of whether qualified immunity itself should be reconsidered. Specifically, Baxter and Brennan were both fully briefed and originally set to be considered in October 2019. But since then, the Baxter petition has been rescheduled five times, and Brennan has been rescheduled three times, most recently on January 8th in both cases. January 8th also happens to be the same day in which the Court called for a response in both Zadeh and Corbitt (with the Kelsay CFR following five days later, on January 13th). It’s hard to imagine why else the Court would postpone these fully briefed petitions for over three months, unless they were holding them to consider along with these more recent petitions raising the same ultimate question.

Of course, this is all still speculative to some degree, and even if the Court does grant cert in one or more of these cases, there’s a wide range of potential outcomes. But the confluence of so many powerful petitions pending at the same time, combined with the Court’s obvious focus on this issue, makes undeniable what Cato has been saying for years—one way or another, the Supreme Court is going to have to confront the glaring legal inadequacies of qualified immunity, together with the massive injustices the doctrine has perpetrated on countless individuals whose rights have been violated with impunity by unaccountable police and other government officials.

December 12, 2019 9:50AM

Keeping Impeachment Simple

Last night, the House Judiciary Committee began debate on the two articles of impeachment unveiled earlier this week by HJC chairman Rep. Jerrold Nadler (D‑NY). Despite recent talk about cluttering the articles with Emoluments Clause and Mueller probe accusations, in the end the Democratic leadership decided none of those charges sparked joy. The articles set for markup today focus exclusively on the Ukraine affair and President Trump’s response to the impeachment inquiry it launched.

The decision to Keep Impeachment Simple, Stupid was a smart call. The two articles confine the case against Trump to a digestible set of facts. Equally important, they avoid framing the president’s conduct in criminal‐​law, focusing instead on misuse of official power and violations of public trust.

The first article, on “Abuse of Power,” accuses Trump of conditioning a state visit and delivery of military aid on the Ukrainians announcing an investigation of his 2020 rival Joe Biden. In so doing, Article I charges, Trump misused the powers of his office “for corrupt purposes in pursuit of personal political benefit.”

I could have done without the far‐​fetched and irrelevant claim that Trump “compromised the national security of the United States” by holding up aid. But Article I does better at avoiding what I’ve called the “Overcriminalization of Impeachment.” Trying to shoehorn Trump’s conduct into one or more federal statutes invites a hypertechnical debate over federal bribery, extortion, and campaign‐​finance statutes that’s quite beside the point. The president doesn’t have to violate the law to commit an impeachable abuse of power. Historically, according to a comprehensive report by the Nixon‐​era House Judiciary Committee, “allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions” have been far more common than allegations of federal crimes.

In this case, there’s a fairly close parallel between Article I and one of the articles of impeachment that drove Richard Nixon from office (he quit before the full House could vote). The second article of impeachment against Nixon, passed by the House Judiciary Committee in July 1974, focused on abuse of power, and the first item it listed was the administration’s attempts to order up IRS audits on political opponents, including people who worked for or supported his opponent in the ’72 election, Sen. George McGovern. In that case, the notion that the president simply had a high‐​minded interest in rooting out corruption didn’t sell.

The second article against Trump tracks the case against Nixon even more closely. Article II charges President Trump with “Obstruction of Congress” based on his “indiscriminate defiance” of lawfully issued congressional subpoenas in the impeachment inquiry. It draws heavily on the third article of impeachment the House Judiciary Committee passed in July 1974, adopting some of its language verbatim. Like Nixon, Trump “interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”

Nixon Article III was the most controversial of the articles lodged against the 37th president, passing HJC by the narrowest margin of the three. But the Judiciary Committee’s Report on the Nixon impeachment made a strong case that Nixon’s defiance was unprecedented and dangerous: of dozens of federal officers who’d been the subject of impeachment investigations up till that time “not one of them challenged the power of the committee conducting the investigation to compel the evidence it deemed necessary.” And Nixon’s obstruction wasn’t nearly as flagrant as the policy of categorical stonewalling Trump announced.

In this case, then, the articles rest on pretty firm constitutional ground. Of course, impeachment is “a mixed operation of law and politics,” and constitutional analysis can only take you so far. In this case, even more than past partisan impeachments, “the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

October 11, 2019 2:23PM

Supreme Court May Be Preparing to Consider Several Major Cases on Qualified Immunity

For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.

The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances” (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non‐​threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non‐​threatening suspects who surrendered by sitting on the ground with their hands up.

The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” The Cato Institute filed a brief in support of this petition, as did a vast, cross‐​ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court’s long conference on October 1st — that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op‐​ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?” All of us were holding our breath as the Supreme Court prepared to start its new term…

But then, something curious happened. On September 23rd, just a week before the Baxter cert petition was set to go to conference, the Court rescheduled the case for the conference of October 11th. (“Rescheduling” means the petition will be considered at a later date, and that the Justices have yet to formally consider it — as opposed to “relisting,” which happens after a petition has already been considered at conference.) Then, on October 8th, the case was rescheduled again — no conference date is listed on the docket yet, but the next scheduled conference would be October 18th.

Why is the Court repeatedly rescheduling Baxter? It’s impossible to know for sure, of course, but I suspect the Court may be waiting to consider the case simultaneously with at least two other cert petitions which will also raise the question of whether qualified immunity should be reconsidered — specifically, those in Zadeh v. Robinson and Corbitt v. Vickers. Zadeh is the case where the Fifth Circuit granted qualified immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. Judge Don Willett dissented in Zadeh, arguing that the Fourth Amendment violation in this case was “clearly established,” but also discussing his “broader unease with the real‐​world functioning of modern immunity practice.” And Corbitt is the case I discussed in detail here, in which the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.

Cert petitions have yet to be filed in Zadeh or Corbitt. However, the civil rights plaintiffs in these cases are now both represented by Paul Hughes — co‐​chair of the Supreme Court and Appellate Practice Group at McDermott Will & Emery — who has filed applications for extensions of time to file a cert petition in both cases. These applications explicitly state that the petitions will raise the question of “whether the doctrine of qualified immunity should be narrowed or revisited entirely,” which is essentially the exact same question in Baxter. And these applications were granted, respectively, on September 17th and September 20th — just days before the Baxter cert petition was rescheduled! Therefore, it seems quite likely to me that Court is planning to hold Baxter until around the time that the Zadeh and Corbitt cert petitions are also filed (which will likely be in mid‐​November), so that it can consider all three cases together. And that in turn suggests to me that the Justices are, at the very least, seriously considering the fundamental underlying question of whether qualified immunity should be considered.

Of course, this prediction is only speculation at this point, and even if the Justices are holding Baxter for something like the reasons I’ve sketched out above, that’s no guarantee that they’ll grant the petition. But this is, in my view, a promising development, especially in light of the Court’s disappointing denial of the cert petition in Doe v. Woodard (which also asked the Court to reconsider qualified immunity) at the end of the last term. Perhaps, for whatever reason, the Justices preferred Baxter et al. as the vehicle for taking up this question. Or perhaps they’ve realized that this issue is simply not going away. But by the end of this term, I suspect that we’ll have a much clearer sense, for better or worse, of whether the Supreme Court intends to correct the unlawful, unworkable, and unjust doctrine it has foisted upon us all.

October 3, 2019 9:51AM

A Welcome Victory For Harm Reduction Advocates

On Wednesday, October 2, US District Judge Gerald McHugh ruled that the plans of a non‐​profit, privately‐​funded, harm reduction organization to establish a Safe Injection Site in Philadelphia do not violate federal law. A group that includes former Philadelphia Mayor and Pennsylvania Governor Ed Rendell was warned last year by then‐​Deputy Attorney General Rod Rosenstein that their plans to establish “Safehouse” would be a violation of federal law and would face a “swift federal response.” In February of this year, US Attorney for the eastern district of Pennsylvania Bill McSwain sought a declaratory judgment in federal court regarding the legality of the enterprise, arguing that Safe Injection Facilities (also called “Overdose Prevention Sites”) violate the federal “Crack House Statute.”

Governor Rendell spoke about Safehouse and the court battle at the Cato Institute’s conference on harm reduction in March of this year. Also on the panel discussing the matter were Clark Neily, Cato’s Vice President for Criminal Justice, and Darwin Fisher, Program Director of “Insite,” in Vancouver, BC, North America’s oldest Safe Injection Facility. You can view that panel discussion here. In their argument before the court, the Department of Justice called Safehouse an “in‐​your‐​face illegal activity.”

While the Justice Department intends to appeal the ruling, this is still a very encouraging development. Several other cities have been wanting to allow for the establishment of Safe Injection Facilities, including Seattle, San Francisco, Boston, and New York City. They are watching what happens in Philadelphia very closely.

As I have written here and in my Policy Analysis on harm reduction, Safe Injection Facilities have a more than 30‐​year track record of reducing overdose deaths, cases of HIV and hepatitis, and IV drug use in over 120 cities in Europe, Canada, and Australia.

Unfortunately, efforts to establish Safe Injection Sites in the US still have a battle in front of them. US Attorney Bill McSwain reacted to the judge’s decision by saying, “The Department of Justice remains committed to preventing illegal drug injection sites from opening. Today’s opinion is merely the first step in a much longer legal process that will play out. This case is obviously far from over.”

October 1, 2019 10:38AM

Do Police Treat All Races Equally?

Recently, Pew published a wide-ranging survey entitled “Why Americans Don’t Fully Trust Many Who Hold Positions of Power and Responsibility.” Police officers were among the groups polled among respondents. The results on cops align with what is shown in the annual Confidence in Institutions survey published by Gallup—briefly, that cops are among the most liked and trusted groups in America, despite the enduring “war on cops” narrative—but the general affinity for police breaks down across demographics. The results also mesh well onto what my colleague Emily Ekins found in her 2016 polling on American attitudes toward police.

From the Pew release:

“[O]pinions about police officers differ widely by racial and ethnic group, with white people holding more positive opinions about police officers than black people and Hispanics do. This racial and ethnic divide is most apparent when it comes to police officers treating all racial and ethnic groups equally. Roughly seven-in-ten white Americans (72%) say police officers treat racial and ethnic groups equally at least some of the time. By way of comparison, half of Hispanics and just 33% of black adults say the same. The racial divide extends beyond opinions about police officers treating racial and ethnic groups equally. Across all six questions asked about police officers, whites are more likely than both Hispanic and black Americans to express positive views of police officers.” (emphasis added)

Fully two thirds of black respondents and half of Hispanic respondents do not believe that police officers treat racial and ethnic minorities equally. While it is theoretically possible that so many ethnic and racial minorities have been hoodwinked into believing something that is not true—or are perhaps oversensitive to just and fair police procedures—the far more likely (and statistically supported) explanation is that blacks and Hispanics are treated differently than whites, and many are quite cognizant of that difference. Social networks and personal experience in these racial and ethnic communities inform these beliefs, lending credence to their position.

Given that many Americans live in racially homogenous areas and that some cities remain de facto segregated, many white Americans may not be aware of how police operate in spaces and neighborhoods that are not white-dominated. Likewise, white Americans may not understand how being not white in white-dominant spaces may incur unwanted (and unwarranted) contact with police officers. Such interactions are not always hostile, and the vast majority are not violent, but the experience may nevertheless be a negative one because the person who is stopped recognizes, or at least has legitimate reason to believe, that their perceived race or ethnicity played a considerable role in an involuntary police contact.

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