Topic: Criminal Law and Civil Liberties

New Paper Measures Social and Psychological Costs of Pedestrian Stops on Black and Latino Adolescents

Measuring police effectiveness is a daunting task at both the agency and at the individual officer levels. At the macro level, studies indicate that some proactive policing strategies can lower crime rates, but there are many other factors that also affect crime so there is no one-size-fits-all answer to what police can do to lower incidents of crime in any given area. On the individual officer level, departments usually measure tangible production—e.g., tickets issued, arrests made, individuals contacted via police stops—but that doesn’t say what effect, if any, those actions had on the community well-being. So, while departments want to lower crime rates and enhance community well-being, they usually evaluate officers on actions that have no proven bearing on either metric. Many officers are thus incentivized to make certain contacts with individuals irrespective of whether or not it will ultimately benefit the community. As a result, the costs of those encounters with the public are often ignored or overlooked as the police go about their business.

A new collaborative article in the Proceedings of the National Academy of Sciences measures the criminogenic effects of pedestrian stops among non-white* adolescent males. Put simply, the researchers measured whether police stops of male adolescents of color had an effect on their likelihood to commit crimes in the future (measured as “delinquency"). The study also measured whether the police encounters had the desired deterrent effect on future criminal behavior. What the study found is troubling, given that police agencies often employ proactive strategies like officer contact to deter crimes.

The research indicates that a pedestrian stop of an adolescent male of color slightly increased the likelihood of future delinquent behavior, regardless of the young man’s previous engagement in delinquent activities. The research also indicates that multiple pedestrian stops further increases the likelihood of future delinquent behavior. The research neither indicated that police stops had the desired deterrent effect on delinquency nor that delinquent behavior had an effect on the number of police stops. That is, these stops had a one-way effect on delinquency, and it was not the good way. This evidence suggests that certain common types of proactive policing amounts to what we at Cato have dubbed “self-defeating policing.”

One doesn’t have to believe that police act maliciously or in an intentionally racist manner to understand that policing can have unintended, negative effects on the communities officers try to serve. This article is important because it tries to quantify the psychological and other social costs of policing tactics on those who experience them. Kudos to the researchers and authors of this important article. More work like this could have a significant impact on the future of policing.

You can read the abstract and download the paper here.

 *N.B. Adolescent males of color were singled out because they are far more likely than white adolescent boys or females of any race to be stopped by police while on foot. It should be noted, however, that the reactions to stops did not vary among the races measured (black, Latino, and multi-racial).


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Cato Files Brief Challenging Qualified Immunity for Warrantless Strip Search of 4-Year-Old

For over a year, Cato has been leading the charge to challenge the doctrine of qualified immunity: an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct – even when they break the law. Today marks a huge milestone in that ongoing campaign, as Cato has just filed an amicus brief in support of a new cert petition calling on the Court to reconsider this doctrine. So has a diverse, cross-ideological alliance of over a dozen prominent public interest groups, as well a group of leading qualified immunity scholars. In the words of Wyatt Earp: “You called down the thunder. Well, now you’ve got it!

The case at issue is I.B. and Doe v. Woodard. When I.B. was a four-year-old girl, she was strip searched and photographed at her preschool by April Woodard, a state caseworker. Woodard had neither a warrant, nor the consent of the girl or her mother, nor were there any exigent circumstances requiring such an invasive search. All she had were unfounded abuse allegations (specifically, of a few marks and bruises on I.B.) which easily could have been checked and disproven through a non-invasive search. After I.B. complained to her mother about what happened, Woodard denied having performed a search at all, and continued to lie about that fact for several weeks, until finally admitting what she had done. I.B. suffered severe and ongoing emotional trauma as a result of being strip-searched and photographed against her will.

I.B. and her mother filed a Section 1983 against Woodard (and others), alleging violations of I.B.’s Fourth Amendment rights. But a divided panel of the Tenth Circuit held that the defendants were entitled to qualified immunity, because Woodard’s strip search did not violate “clearly established law.” The court failed to even address the Fourth Amendment claims on the merits, noting only that (1) there was a circuit split on whether a warrant was necessary under these circumstances, and (2) assuming a warrant wasn’t necessary, it was still not “clearly established” whether this sort of strip search was permissible. This latter holding is particular shocking, because the Supreme Court itself recently addressed this exact subject matter (warrantless strip searches of children in schools) in Safford Unified School District No. 1 v. Redding. In Safford, the Court even said it was seeking “to make it clear” that an intrusive strip search of a child was justifiable only with “specific suspicions” that evidence of danger or wrongdoing will be found in the area searched. For this reason, Judge Briscoe dissented in part from the Tenth Circuit’s decision, and would have held that I.B.’s strip search violated “clearly established law,” as stated in Safford. 

The Tenth Circuit’s decision exemplifies everything that is perverse and unjust about qualified immunity. I.B. had her constitutional rights violated in an egregious manner, yet she was left without a remedy because of a fictitious doctrine, with no grounding in the text or history of Section 1983. The Tenth Circuit refused to even decide whether her constitutional rights were violated in the first place, and it applied the “clearly established law” test so strictly that a seemingly on-point Supreme Court case concerning nearly identical circumstances was still insufficient to overcome qualified immunity. 

I.B. and her mother are now represented by Scott Keller, chair of Supreme Court practice at Baker Botts, and they’ve filed a powerful cert petition, asking the Supreme Court both to resolve the Fourth Amendment questions at issue here, but also to reconsider the doctrine of qualified immunity itself. Today, Cato filed an amicus brief in support of that petition, arguing that qualified immunity lacks any proper legal or historical basis, and that it is not entitled to respect under the doctrine of stare decisis. Specifically, we explain how (1) the “clearly established law” standard is so malleable and indefinite that it has failed to create the kind of stability and predictability that justify respect for precedent in the first place; (2) that the Supreme Court itself has already made major modifications to qualified immunity over the years, and therefore should have no qualms about reconsidering the doctrine now (but this time to bring it line with the statute Congress actually passed); and (3) that allowing the status quo to continue severely undermines public accountability and effectively subjects citizens to ongoing constitutional violations.

Ours is far from the only brief being filed today, however – we’ve also helped coordinate the drafting and filing of two additional amicus briefs. The first is on behalf of a group of leading qualified immunity scholars, who discuss the academic consensus that the Court’s qualified immunity doctrine is in serious need of correction. The second is on behalf of a diverse array of groups from across the ideological and professional spectrum, who nevertheless all share a common interest in ensuring that government officials are held accountable for their misconduct. This brief was joined by all of the following groups: the ACLU, Alliance Defending Freedom, American Association for Justice, Americans for Prosperity, Due Process Institute, Institute for Justice, Law Enforcement Action Partnership, MacArthur Justice Center, NAACP Legal Defense Fund, National Association of Criminal Defense Lawyers, Public Justice, R Street Institute, Reason, and the Second Amendment Foundation. Take a moment and consider just how egregiously misguided a Supreme Court doctrine has to be to unite all of these organizations in opposition, on a single brief. (Note also that several other groups have filed additional amicus briefs asking the Court to take the case, although we weren’t specifically involved with those.)

All in all, this case represents one of the most promising opportunities in the ongoing fight against qualified immunity. It highlights the sort of gross injustice that the doctrine regularly permits, demonstrates just how much cross-ideological consensus there is on this issue, and presents the Court with an ideal vehicle for restoring Section 1983 to its proper stature. We can only hope the Court answers the call. 

A Pretextual Traffic Stop Should Require Sufficient Pretext

Several years ago, Atlantic writer Conor Friedersdorf asked Twitter “If you could add one Bill of Rights style amendment to the Constitution what would it be?” I responded “The Fourth Amendment and “we mean it.”

My answer may have been tongue-in-cheek, but quite seriously, the Fourth Amendment and its protections have been eroded by the Supreme Court precedents over several decades. As a result, the power of the police to intrude upon the lives of individuals has grown and they have taken advantage of that power throughout the country.

The Fourth Amendment reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place searched, and the persons or things to be seized.”

In plain English, the amendment should mean—among other things—that the police cannot stop (or “seize”) you on the street for no good reason. In the context of traffic stops, the Supreme Court held in Whren v. U.S. (1996) that the police had to have probable cause to believe the driver or vehicle is in violation of a traffic law. In the abstract, Whren makes perfect sense: If an officer observes a moving violation, he or she can stop a driver to address the issue.

In practice, however, Whren has provided virtual carte blanche for police to stop motorists due to innumerable traffic laws, many of which are vague and subjective, that most drivers violate every time they get behind the wheel. As I explained in my 2016 Case Western Reserve Law Review article “Thin Blue Lies,” police routinely use these myriad violations as pretext to stop motorists and investigate other crimes entirely unrelated to traffic safety. Officers understand if they follow any driver long enough, they can almost certainly find a pretext for stopping the vehicle and conducting an informal roadside investigation, subverting the spirit (if not the letter) of the Fourth Amendment’s protection against arbitrary seizure.

Despite this gaping hole in Fourth Amendment protections, police officers in Nebraska initiated a traffic stop on a vehicle without probable cause of any traffic violation whatsoever. (This isn’t hyperbole. In court filings, the State of Nebraska stipulates there was no traffic violation.) As a result of the stop, the driver of the vehicle, Mr. Colton Sievers, was questioned and eventually arrested for methamphetamine possession after a search of his vehicle. He moved to have the evidence thrown out because the original stop was an illegal seizure under the Fourth Amendment.

In a rather unusual decision, the Supreme Court of Nebraska found that the stop was legal under a different case, Illinois v. Lidster (2004), which allowed police to stop vehicles at checkpoint to seek eyewitnesses to a recent crime in the area, not to investigate drivers for criminal wrongdoing. The merits of that decision aside, neither Sievers nor the State of Nebraska argued Lidster would have permitted the stop at issue in the present case.

So unusual is the Nebraska Supreme Court decision that law professor Orin Kerr, to whom Cato scholars often find ourselves in opposition regarding Fourth Amendment jurisprudence, has joined the Sievers legal team and co-authored a cert petition to the U.S. Supreme Court (SCOTUS). The petition asks SCOTUS to either hear Sievers v. Nebraska or summarily reverse the decision below.

In a Volokh Conspiracy blogpost about the Nebraska Supreme Court decision, Kerr wrote:

It’s true that Lidster allowed a suspicionless “information-seeking” checkpoint stop, which is effectively an exception to the usual rule that reasonable suspicion is required under Terry v. Ohio. [note: Terry v. Ohio (1968) preceded Whren, requiring police to have reasonable suspicion to initiate a pedestrian stop.] But the key to Lidster was that the officers were only trying to find innocent eyewitnesses to a past crime. The police set up the checkpoint at the scene of the accident hoping to find a member of the public who had seen the crime and might be able to give the police some leads. This fell out of the usual Terry requirement of suspicion, the Lidster Court held, because the police where just asking members of the general public if they could help the police.

[…]

It seems obvious that Sievers was different. This was not a case of “seeking information from the public.” The officers testified that they stopped the truck because they thought it might contain evidence of crime – specifically, stolen goods that they thought were being stored at the house where the truck had been parked. When the stop occurred, the officer who ordered the stop “advised the [other] officers to make a traffic stop to prevent the truck from leaving with any stolen items.” The lead officer explained that they need to stop and search the truck “for any items taken from the [firearms] burglary.”

And when Sievers was stopped, the officers didn’t treat him like a member of the public who perhaps just might have seen a crime. Instead, Sievers was treated as a dangerous suspect.

Hopefully, SCOTUS agrees to hear the Sievers case or summarily reverses the Nebraska Supreme Court. SCOTUS has already ceded too much leeway to police to stop motorists as pretext, but police officers should at least meet the minimum standard for a legal stop.

You can read the whole cert petition here.

Snatching Defeat from the Jaws of Victory

Sadly,

All the elements for swiftly legalizing marijuana in New Jersey seemed to be in place: A proposed bill was enthusiastically backed by Gov. Philip D. Murphy and had been endorsed by leaders of the Democratic-controlled State Legislature. Also, statewide polls showed support for the issue.

Then the plans unraveled.

Why?

Some lawmakers were unsure about how to tax marijuana sales. Others feared legalization would flood the state’s congested streets and highways with impaired drivers. Some would not be deterred from believing that marijuana was a dangerous menace to public health.

A disagreement existed among lawmakers about … whether it was necessary to expunge criminal records for marijuana-related offenses for those found with as much as five pounds of the drug.

[And,]

For states like California and Massachusetts, legalizing marijuana has led to some negative results: underwhelming tax revenue; a host of public health and safety concerns, such as keeping the drug out of teenagers’ hands; and a burgeoning industry dominated by white corporate interests even as advocates in Hispanic and black communities say their neighborhoods have been most negatively affected by the drug.

Comments:

1. The claim that NJ could not figure out how to tax marijuana makes no sense. NJ taxes thousands of products, and ten states plus DC already tax MJ sales.

2. The concerns about impaired drivers, public health, and teens are no doubt real, but grossly overstated and based on misleading anecdotes or faulty statistics; the evidence from existing state legalizations finds little evidence of adverse effects.

3. Expungement of past marijuana offenses should be a separate issue from whether to legalize going forward.

4. Antipathy to “corporate” provision of legalized marijuana is mainly protectionism for existing marijuana sellers, whether underground or medical.  Legalization will likely drive out small, high cost suppliers; that is how capitalism works.

5. The failure of revenues to match expectations, in the more recent legalizations, was completely predictable. On the one hand, many revenue forecasts have been wildly optimistic.  On the other hand, the early legalizers collected substantial revenues because of limited competition from other states; as more states have legalized, the remaining demand is inevitably smaller.

Bottom line: New Jersey should just legalize.

Marijuana Legalization Reduces Police Searches

Marijuana advocates often cite the expansion of individual freedom as a major benefit of legalization. One aspect of this enhanced freedom is fewer police searches. NBC News reports:

Traffic searches by highway patrols in Colorado and Washington dropped by nearly half after the two states legalized marijuana in 2012. That also reduced the racial disparities in the stops, according to a new analysis of police data, but not by much. Blacks and Hispanics are still searched at higher rates than whites.

Colorado Washington

For more on the effects of state marijuana legalizations, see here.

Research assistant Erin Partin co-authored this blog post.

The Imperfect Count of Hate Crimes

Laws on hate crimes raise longstanding questions of fairness both in theory and application, including (when enacted at the federal level) dangers of overextension of federal criminal law and inroads on the prohibition against double jeopardy. The role of hate crimes as culture war rallying points can make things worse. In the Jussie Smollett episode, journalists came under fire for raising questions about unlikely elements of the actor’s story — Smollett had been “doubly victimized as the subject of speculation by the media industry and broader culture,” said the head of one progressive outfit — and even for hedging their stories with words like “allegedly.”

After Smollett’s story fell apart, some advocates argued that no matter what might have happened this one time, data show that hate crimes are sharply on the rise and reports of them hardly ever prove unfounded. Is that the case? I tackle the question in a new piece at Inside Sources

An oft-repeated talking point is that FBI statistics last year, to quote Sen. Kamala Harris (D-Calif.), “revealed a 17 percent increase in the number of hate crimes in America.”

Let’s be polite and say those FBI figures are difficult to interpret….

In the state of Oregon, the college town of Eugene reported 72 hate crimes to the FBI in 2017, about as many as the rest of the state put together. According to the Daily Emerald, the difference reflects “the city’s active approach. … The city carefully catalogs reported instances … and even classifies certain crimes — such as vandalism — as a hate crime that other cities would classify in a different way.”

Word is that the Eugene approach is spreading as other cities get interested in steps such as asking officers to write up on their own initiative as a hate incident a graffiti epithet they might see, rather than only if a public complaint happens to come in.

Should those methods spread in coming years, the FBI count of reported hate incidents is sure to mount — yet still not demonstrate with any certainty a genuine rise.

For whatever reason, many of us are predisposed to accept findings that seem to highlight the prevalence of terrible injustice. The impulse to believe extends to matters of scholarship. So it was with a recently retracted 2014 study that purportedly found “structural stigma” in society shortens the lives of LGBT persons by a remarkable 12 years. The authors acknowledged that they had inadvertently committed a coding error with the data; once it was corrected, there was no statistically significant correlation at all between “structural stigma” and mortality. Yet the paper, with its inherently implausible findings, had already achieved “highly cited paper” status, and has continued to garner citations even after its retraction (cross-posted from Overlawyered).

Edgy Rap Lyrics Shouldn’t Land a Man in Jail

Jamal Knox was arrested on drug-related charges and released pending further court proceedings. During the interim, he created a rap video in which he made disparaging remarks about the police and named two of the officers who arrested him. The Pennsylvania Supreme Court held that the video demonstrated subjective intent to harm under the “true threats” doctrine and imposed a criminal penalty on Mr. Knox.

The First Amendment protects the right of every person to speak freely without fear of punishment; it specifically protects the ability to criticize government officials. Indeed, the Constitution’s protection of speech is at its highest when government attempts to prosecute someone for his spoken words. One narrow exception is the “true threats” doctrine, which allows a government to punish a person for what he says if his words amount to an actual threat of harm, such as a bomb threat. But just how narrow this exception is remains a mystery.

Courts are divided over whether to consider only the speaker’s subjective intent, or the speaker’s intent and the objective nature of the threat—whether a reasonable person would view the speech as a threat. The second standard offers more protection to the speaker, because the government must prove show both subjective and objective elements of a “threat.” Cato, joined by the Rutherford Institute, has filed an amicus brief asking the U.S. Supreme Court to review this case and ultimately choose the higher standard of protection.

The ambiguity over whether and how the government may criminally prosecute someone for the content of speech is a serious threat to liberty.  The situation is more alarming given that the United States is undergoing a communications revolution, driven by unprecedented new forms of online expression—and unprecedented new attempts by government to monitor and restrict such expression. This case presents an opportunity for the Court to set clear boundaries for the government’s authority to limit online expression through criminal prosecution. 

The Court really does need to step in to avoid chilling protected expression. The subjective-intent-only test fails to protect defendants who are prosecuted for their speech, insulates “true threats” convictions from appellate review, and leaves controversial speakers unprotected even with respect to political or artistic expression.

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