Category Archives: Criminal Justice

Unpacking Immunity

The defiance shown by so many police officers to vaccine mandates absolutely astonishes me, as I’ve previously posted. These are, after all, people whose job it is to enforce “mandates” over the “personal choices” of citizens whose disagreement with those mandates is irrelevant.

But then I read a very informative column by Radley Balko in The Washington Post and connected some (admittedly non-intuitive) dots.

The column was about qualified immunity–the judge-made doctrine that continues to exempt police officers from the consequences of unconstitutional behaviors, and essentially allows them to choose which laws they will follow and which they will ignore. I have previously explained that doctrine, and why so many lawyers argue that its effects have been pernicious. Balko goes beyond the widespread criticism of the way qualified immunity currently works; he explains its ugly origins.

I, for one, was unaware of those origins.

Balko begins by reminding us that qualified immunity isn’t in the Constitution or in the U.S. Code. “It is judge-made law. It is judicial activism, by any definition of the term.” The doctrine was first announced in Pierson v. Ray, a case arising out of participation by a group of Episcopal priests–three of whom were Black–in the effort to desegregate public accommodations in the South.

Waiting on a bus just outside of Jackson, Miss., 15 of the priests, three of whom were Black, entered a segregated cafe. Two police officers ordered them to leave. When they refused, the officers arrested them under a vague Mississippi law permitting police to arrest any group of people who threatens a “breach of the peace.” The clergymen were convicted and sentenced to four months in jail. On appeal, their arrests were deemed illegal and their convictions were overturned. They subsequently sued under Section 1983.

Section 1983 is the federal statute allowing citizens to sue the government for damages when agents of that government, acting in their official capacities, violate their rights.

This was the precise sort of constitutional violation that Section 1983 was passed to address. Local state authorities had refused to recognize the 14th Amendment rights of Black priests to be treated equally. And yet they lost.

The U.S. Court of Appeals for the Fifth Circuit ruled that by merely participating in the Freedom Rides, the clergymen had knowingly placed themselves in harm’s way, and therefore were ineligible for damages. The court also ruled that though the arrests and law were subsequently determined to be unconstitutional, the police could not have known that at the time, and therefore couldn’t be held liable.

In 1967, the Supreme Court upheld the decision, and in 1982, in the case of Harlow v. Fitzgerald, the Court made the doctrine even worse. As I explained in my former post on the subject, the Court in Harlow ignored precedents that had required an examination of the “subjective good faith” of the officer being sued. Instead, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.”

In other words, since Harlow, courts have required plaintiffs to cite to an already existing judicial decision with substantially similar facts. As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’”

As Balko (accurately) characterized the current situation,

Collectively, they’ve created a through-the-looking-glass realm of jurisprudence that not only excuses police violations of constitutional rights, not only grants a police an exception to the axiom that “ignorance of the law is no excuse,” but actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

Which brings me back to the chutzpah of the police who are refusing vaccination.

When you are working in an environment that shelters you from the consequences when you break the rules, an environment that allows you to decide for yourself which laws you will follow and which ones you will ignore, the result is development of an entitlement mentality. When you are insulated–immunized–from the consequences that ordinary citizens face when they ignore laws of general application, why wouldn’t you get cocky? Why wouldn’t you consider yourself immune from the rules that the “little people” must follow?

Qualified immunity explains a lot more than the evisceration of Section 1983.

 

There Are Unions…And Then There Are Unions…

Yesterday, I explained how my opinion of labor unions had, shall we say, “matured” over the years.  Like many others, I came to see what happens when power becomes wildly disproportionate–when the parties to “bargaining” are so unequal that actual bargaining is impossible.

My belated support for unions recognizes the importance of genuine collective bargaining.

That support doesn’t extend to today’s iteration of police unions, which tend to be powerful protectors of the worst elements of law enforcement.

Public-sector unions are all in a somewhat different situation than those in the private sector. The ability to interrupt a public service gives them additional clout, and they have consequently fared somewhat better than their private-sector counterparts. To the best of my knowledge, most–but certainly not all– have behaved responsibly.

Then there are police unions, which definitely have not. As an article last year in the New York Times put it,

Over the past five years, as demands for reform have mounted in the aftermath of police violence in cities like Ferguson, Mo., Baltimore and now Minneapolis, police unions have emerged as one of the most significant roadblocks to change. The greater the political pressure for reform, the more defiant the unions often are in resisting it — with few city officials, including liberal leaders, able to overcome their opposition.

They aggressively protect the rights of members accused of misconduct, often in arbitration hearings that they have battled to keep behind closed doors. And they have also been remarkably effective at fending off broader change, using their political clout and influence to derail efforts to increase accountability.

That political clout is significant. Candidates for local offices seek to benefit not just from police union endorsements but from contributions: according to the Times, a single New York City police union had donated over $1 million to state and local races between 2014-2020.

The knee-jerk resistance to reform and the “aggressive” protection of their members are troubling, but understandable, “tribal” behaviors. Less understandable–actually, in my view, incomprehensible–is the current anti-vaccine stance being taken by several police unions.

Police departments around the U.S. that are requiring officers to get vaccinated against COVID-19 are running up against pockets of resistance that some fear could leave law enforcement shorthanded and undermine public safety.

Police unions and officers are pushing back by filing lawsuits to block the mandates. In Chicago, the head of the police union called on members to defy the city’s Friday deadline for reporting their COVID-19 vaccination status.

It’s not just Chicago. The Sheriff of Los Angeles County has said he won’t force his 18,000 employees to be vaccinated despite a county mandate. Hundreds of police officers in San Diego say they would consider quitting instead of complying with a vaccination mandate.

Resistance is bubbling up even though first responders have been hit hard by COVID-19. More than 460 law enforcement officers have died from the virus, according to the Officer Down Memorial Page, which tracks deaths in the line of duty.

On the news a few mornings ago, the head of the Chicago union pontificated that being vaccinated was a “personal choice” that government had no right to over-rule. That is especially ironic coming from someone who has been deputized by the government to enforce rules against the “personal choices” of, say, marijuana smokers, seat-belt resisters and gamblers.

It’s bad enough that ordinary Americans don’t understand the difference between personal liberty and their obligations to their fellow-citizens. (As a recent Facebook meme parodied that declaration, if I’m on a ship and I saw through the floor of my cabin to the water below, it’s my personal decision…). But these are people sworn to protect  and serve their communities–people who presumably became police officers in order to keep others safe. A “choice” to remain unvaccinated doesn’t simply expose the individual officer to a potentially deadly disease; it endangers anyone in the public with whom that officer interacts.

The research is unequivocal: police unions have a negative effect on innovation, accountability, and police — community relations. “Unionized officers draw more excessive-force complaints and are more likely to kill civilians, particularly nonwhite ones.”

The reason I changed my mind about unionization in general was my recognition that disproportionate power exercised by either unions or management leads to negative outcomes. In the private sector, sapping the ability of workers to bargain effectively has driven the widening gap between the rich and the rest.

In the public sector, the ability of police unions to shield bad cops from accountability–to allow them to defy the very rules they are supposed to uphold– endangers us all.

 

 

 

 

 

Sophisticated Theft

The recent indictment of the CFO of Trump’s business empire has offered us a window into the differences in dishonest behavior between members of different social classes–and the extent to which anti-social behavior by “others” is viewed more negatively.

As a law professor who was a former U.S. Attorney opined, in the wake of the indictment of Allen Weisselberg,

As I learned during my career as a federal prosecutor, this is the way rich people steal money. The means are more sophisticated than sticking up someone with a gun on a street corner, but purpose is the same, which is why one of the charges is grand larceny— stealing property that doesn’t belong to you.

The charges leveled thus far–the investigation is ongoing, and more are likely–are serious. No one brandished a weapon, but according to the indictment, the company under Weisselberg’s and Trump’s direction engaged in 15 types of fraud over a period of years. Those included a number of schemes to evade income taxes, mostly by finding ways to compensate employees “off the books.”  The organization provided employees with cars, apartments, private school tuition, home improvements and bonuses– without , however, reporting these perks as the taxable income they legally were. That allowed the organization to avoid payroll taxes and allowed the employees thus compensated to significantly reduce both their taxable income and  the amount of taxes they paid.

This wasn’t penny-ante stuff; the indictment accuses Weisselberg alone of concealing approximately $1.7 million of his own compensation from tax authorities.

If this indictment was merely more evidence of Donald Trump’s disdain for the law, it would be worth at most a shake of the head and a comment to the effect that it didn’t come as a surprise. Unfortunately, however, fraud of this sort is apparently widespread among wealthy and near-wealthy individuals who share Trump’s stated belief that “smart” people don’t pay a lot in taxes.

The reactions to the indictments by Trump’s defenders have been telling. Defense lawyers characterized the criminal charges as “inappropriate,” and a number of rank-and-file, “law and order” Republicans shrugged them off as business as usual. Evidently, they consider the theft of millions of dollars accomplished without weaponry less serious than a holdup at gunpoint on the street (netting, perhaps, a couple of hundred dollars and a watch).

Of course, we “little people” have to make up the amounts lost by reason of this tax cheating through our own taxes–but what I find even more troubling is the lack of indignation and condemnation of this clearly fraudulent and criminal behavior. That indulgence undermines both the legitimacy of government and the rule of law.

We sometimes forget the extent to which our legal and economic systems require the voluntary compliance of the vast majority of Americans. To use an obvious example, most of us who drive stop at red lights and obey (most) other rules of the road. We couldn’t hire enough police officers to ensure safe roads if we couldn’t rely on the willingness of large majorities to obey traffic rules.

For that matter, America’s entire system of commerce relies upon the willingness of most sellers to deliver goods as promised, and the willingness of most buyers to pay for those goods in a timely manner without the need to send for the sheriff.

Our tax system similarly depends upon the voluntary compliance of millions of Americans who dutifully file the required paperwork and remit the appropriate payments. When that culture of obedience is allowed to erode–when the well-to-do can publicly wink at each others’ fraudulent evasions–that erosion inevitably breeds resentment among the law-abiding, and excuses additional noncompliance, not just with the tax laws, but within daily commerce.

The so-called “Captains of Industry” who consider themselves too smart to pay their taxes are also the scofflaws most likely to stiff the people with whom they do business. The Trump Organization is a prime example, but certainly not the only one.

Just because a certain type of theft is more sophisticated doesn’t make it less reprehensible. Stealing from the government is no less dishonest than stealing from individuals–and in fact, it is stealing from the individuals who must make up the difference.

It’s evidence of moral bankruptcy, not “smarts.”

 

 

 

 

Law And Order

According to Fox News and other Republican sources, America is experiencing a crime wave. Actually, we aren’t. What we are experiencing is a rise in homicides–almost entirely as a result of gun violence.

As a recent Guardian article explained: homicides were up across the US in 2020 and appeared to be primarily driven by rising gun violence. Other crimes, however, fell.

A preliminary government estimate shows a 25% single-year increase in killings in 2020. In some larger cities, the number of homicides has remained higher than usual through the early months of 2021.

While official national crime data will not be released for months, some trends are clear. The 2020 homicide increase happened across cities and towns of all sizes, from those with fewer than 10,000 residents to those with more than a million, according to preliminary FBI data.

The rise in homicides likely translated into an additional 4,000 to 5,000 people killed across the country compared with the year before, according to early estimates.

The increase in murder comes as robberies declined more than 10%, and rapes declined 14%. Overall, violent crime increased 3%. The obvious question is: why? Why is murder up while overall crime is down? And how worried should we be?

Some context is helpful: even with the rising homicide rates, Americans are safer than we have been historically.

And yet, even after an estimated 25% single-year increase in homicides, Americans overall are much less likely to be killed today than they were in the 1990s, and the homicide rate across big cities is still close to half what it was a quarter century ago.

New York City saw more than 2,200 killings in a single year in 1990, compared with 468 last year, according to city data. In the bigger picture, that’s a nearly 80% decrease.

Los Angeles saw more than 1,000 homicides a year in the early 1990s, compared with fewer than 350 last year.

Furthermore, the article quotes one scholar of crime for the observation that the increases in homicide are taking place in neighborhoods where homicides have traditionally been concentrated. The incidence is not spreading out.

The pandemic has clearly contributed.

There is some evidence that national factors, including the many stresses and disruptions of the pandemic, may have played a role in the 2020 homicide increase. The uptick was “widespread,” Rosenfeld said. In an analysis of big city crime trends for the nonprofit Council on Criminal Justice, “We found very few cities that did not experience pretty significant rises in homicide during 2020,” he said.

Whatever researchers ultimately determine, it is impossible to ignore the effect of America’s gun culture and the sheer number of weapons owned by our citizens.

A preprint study from researchers at the University of California, Davis, which has not yet been peer-reviewed, suggested that a spike in gun purchases during the early months of the pandemic was associated with a nearly 8% increase in gun violence from March through May, or 776 additional fatal and nonfatal shooting injuries nationwide. The researchers found that states that had lower levels of violent crime pre-Covid saw a stronger connection between additional gun purchases and more gun violence.

There has been a predictable effort to attribute the rise in homicides to criticisms of police, or to unrest blamed on Black Lives Matter, but the data simply doesn’t support those accusations.

Some police officials and their allies have asserted that last summer’s big, volatile protests against police violence diverted police resources and attention away from their normal patrols, and have suggested that demoralized, angry police officers might be less proactive or effective in dealing with violent crime.

But Jeff Asher, a crime analyst who writes extensively about homicide trends, examined 60 cities and found no correlation between the number of Black Lives Matter protests, and the size of a city’s homicide increase.

Rosenfeld cautioned that any policing-focused explanation for the homicide increase needed to explain why the change would have only affected serious and deadly violence.

“Most crime is down, including most felony, serious crime,” he said. “If the de-policing argument is correct, why did it only affect an uptick in violence and not other street crime?”

At this point, the stresses of the pandemic, especially on low-income neighborhoods, appear to be a significant cause of hostility and despair and “acting out.” But the easy availability of guns clearly was–and continues to be–an enormous factor.

I’ll believe Americans seriously want to reduce violence and homicides when we get serious about gun control. But I’m not holding my breath…

 

 

When Good Ideas Get Bad Slogans

Among so-called “woke” Americans, certain verities seem obvious–so obvious, in fact, that it becomes easy to believe that most other people see things the same way, and to dismiss folks who fail to agree as dishonest or racist. As a result, they downplay or entirely ignore the need to educate and communicate, a need they often denigrate as “PR,” with the result that they often end up undermining support for the reforms they want to see.

Perhaps the most vivid example of this phenomenon was the slogan “Defund the Police,” which gained currency after the murder of George Floyd. A March USA Today/Ipsos Poll found that voters opposed “defunding the police” 58-18.

When most Americans hear “defund,” they hear only “take money away.” They don’t hear “change funding formulas to supplement policing with social services so that police can be freed up to focus on actual criminal behavior.”

The repeated use of that unfortunate phrasing allowed a variety of political candidates– Republican and Democrat alike–to reinforce a number of widely accepted misconceptions about crime and policing. The Brookings Institution recently addressed seven of those misconceptions, which it called myths.

 The most obvious–and intellectually dishonest– was the assertion that “defunding” really meant “abolish.” Granted, the “defund” language was misleading, but only the most partisan observers actually thought the movement wanted to eliminate policing.

More understandable–if equally incorrect–was the belief that reducing the presence of police would usher in an increase in social disorder.

Another misconception is that police forces are what maintains order. However, studies have found that the best tools to establish peaceful societies are equity in education and infrastructure. Indeed, research shows that lack of education and illiteracy are some of the most significant predictors of future prison populations.

When it addressed the notion that police protect society from violence, the Brookings article included some rather shocking (at least to me) data. Evidently, research shows that 70% of robberies, 66% of rapes, 47% of aggravated assaults, and 38% of murders go unsolved each year–a rather daunting catalogue of police performance.

Research also rebuts the belief that spending money on community programs wouldn’t affect crime rates; the article links to studies demonstrating–among other things– that individuals who receive a quality education are less likely to become involved in the criminal justice system.(interestingly, the article also notes that police officers who have had more education are less likely to be the recipient of misconduct complaints.)

And although there is a widespread belief that police work is primarily focused on crime prevention, that also turns out to be a misconception.

There is minimal evidence that police surveillance results in reduced crime or prevents crime. For instance, research showed 90% of the people that were stopped in the NYPD’s controversial stop and frisk program were not committing any crime. While it is true that police do apprehend individuals that violate the law, this is one of several components of their responsibilities.

Finally, the article debunks the notion that “Defund the Police” was simply an emotional response to the appalling sight of a police officer killing George Floyd.

Some opponents of cutting police budgets view the movement as an emotional response to police misconduct rather than a well-thought-out campaign. However, a study with 60 years of data indicates that increases in spending do not reduce crime. Which begs the question, how is 60 years of a failed objective any better? Yes, the movement gained attention because of tragic events in 2020, but the evidence supporting the movement is based on hard data and proven methods.

Police reform is long overdue,  and we have had thousands of opportunities to make the appropriate changes. In 2020, the murder of George Floyd garnered national attention that has caused many to take a long, hard look at our democratic systems, cultural identities, and the necessary steps towards equal protection. We do know that more traditional policing is not the answer.

Those in the legal community who have long been aware of the research and the problems with current police culture were appalled by the “defund” slogan, knowing that–rather than calling attention to mountains of data and the necessity of different approaches–it would only antagonize police and frighten the public, rather than communicating the need to alter a currently ineffective approach to public safety.

People who really want change rather than an opportunity to pontificate understand that language matters.