Archive for the ‘Fourth Amendment’ Category

"Privacy" concerns, "government overreach" take center stage in the final days of NC’s legislative session | The Pulse – The…

In the waning hours of the 2022 summer legislative session, two of North Carolinas most conservative House members took to the floor to speak out against government overreach.

We should not have a government tracking people, said Rep. Keith Kidwell, the House deputy majority whip.

The Beaufort County Republican was not addressing privacy concerns that have been raised since the U.S. Supreme Court overturned the landmark Roe v. Wade ruling, ending the constitutional right to an abortion.

Rather Kidwell was angry about a provision tucked inside Senate Bill 201, legislation that would make a number of changes to North Carolinas motor vehicle and transportation laws.

The objectionable section would allow the state Department of Transportation to enter into agreements with the North Carolina State Bureau of Investigation for the placement and use of automatic license plate reader systems within land or right-of-way owned by the DOT as part of a pilot program.

The cameras provide real-time data for law enforcement and could be useful in the case of a stolen vehicle or an Amber alert.

But Rep. Kidwell was unwavering.

Now, Ive had someone write to me and say we do not have an expectation of privacy once were outside of our home. Well, that may be true, but I do think we have an expectation of privacy that our government should not track us every place we go.

Then I hear, You dont trust your government? No. I dont to be quite honest with you, Kidwell answered. Thats one of the main reasons Im here. I dont trust my government.

Kidwell then directed the House to read the Constitution.

Pull up that Fourth Amendment and read it and see if you dont agree this is a blatant violation of that right the right to privacy.

Tracking political opponents, dissidents

Rep. Larry Pittman (R- Cabarrus Co.) joined in Kidwells opposition, calling the pilot program reprehensible.

Rep. Pittman

We hope and pray we never have government leaders in this state who want to keep tabs on political opponents, but this system would allow that, Pittman warned. I am not gonna sit still for that as long as I am here.

Pittman said while cell phones can provide tracking data and ones location, that handheld technology could easily be left at home, whereas the license plate could not legally be removed from ones car.

If there becomes a totalitarian government in this nation, this state, you should not be putting in a system by which they can track political opponents wherever they go.

I know the benefits of it. Oh, we can catch kidnappers, we catch bank robbers. You can also catch dissidents, Pittman warned his colleagues.

Fifteen Republicans joined with Pittman and Kidwell in rejecting Thursdays version of the bill. A rare 55-55 vote sent SB 201 off the floor and back to a group of conferees.

This is America in 2022?

In the upper chamber, state Senator Natasha Marcus was also thinking about privacy last week in the aftermath of the Supreme Courts opinion in Dobbs.

It pains me to think my daughters or any bodys daughters might face a problem pregnancy, an unwanted pregnancy, a not viable pregnancy and not be able to get the healthcare they need in America, said Marcus in an interview with Policy Watch.

This is America in 2022? That we are going to have forced birth?

The Mecklenburg County Democrat said it is stunning to think we are now in a place where we are not going to trust women to make the very personal choice that is best for them and their families in consultation with their doctors.

Instead, we are going to have politicians almost literally in the exam room.

She said this is a terrifying prospect for women.

For now, abortion is still legal in North Carolina. We cannot slide backwards or allow the government to block people from making our own decisions about such deeply personal matters, Sen. Marcus said.

Marcus sponsored a bill this session that would codify Roe and Casey protections.

Under that proposed legislation, the state would be prohibited from imposing any undue burden on the ability of a woman to choose whether or not to terminate a pregnancy before fetal viability.

Marcus and other progressives believe the measure is essential as Republican-controlled states quickly begin to ban or severely restrict abortion access.

Another unsettled issue being debated is whether women might be punished for traveling out of state to get an abortion.

Senate Bill 888 was sent to the Rules committee in late May. It was never given another hearing.

A different ending in the House

But what of Senate Bill 201, the transportation bill that raised concerns because the pilot license plate readers might track motorists?

Reps. Kidwell and Pittman won their push for privacy.

The 13-page bill became a 12-page bill in a matter of hours; the section was removed entirely.

The House passed the conference committee substitute for SB 201 unanimously last Friday.

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"Privacy" concerns, "government overreach" take center stage in the final days of NC's legislative session | The Pulse - The...

Congress Needs to Fix Qualified ImmunityHere’s Why – Bloomberg Law

It sounds like the start of a bad knock-knock joke: A bed and breakfast owner and a federal agent run into each other at an inn on the northern border. But what happened next is far from humorous.

Robert Boule, the owner of Smugglers Inn on the Canadian-US border in Washington, sued a US Border Patrol agent for violating his Fourth Amendment right by entering his home and using excessive force against him. Boule alleged the border agent pushed him to the ground during a dispute and then retaliated by reporting him to the IRS after he complained to the agents supervisors.

The US Supreme Court ruled against Boule on June 8, holding that his case did not fall under the 1971 precedent Bivens v. Six Unknown Fed. Narcotics Agents. In its ruling, SCOTUS effectively concluded that federal courts no longer have the right to decide on border police liability, but instead should defer to Congress.

Without congressional action, federal agents may no longer be liable for their actions, no matter how violent. Why? The doctrine of qualified immunity for law enforcement.

As a former public defender and now executive director and co-founder of Partners for Justice, a nonprofit that works to help low-income Americans navigate the legal system by bolstering public defense resources, I have seen first hand the consequences of law enforcement behaving as if they are the law. A child assaulted by a school cop while the schools video surveillance mysteriously cut out. A young man having his face driven by a police officer into the street for carrying a screwdriver.

The police violence that we hear about in the news is occasionalthe police violence that communities of color endure every day is not. It is constant, lethal, and uniquely American.

In no other field are professionals shielded from the worst consequences of their occupational mishaps. If a doctor botches a procedure, they are liable for malpractice. If I, as a lawyer, fail to investigate my clients claims, I could lose my license and be subject to liability. But if police (and now federal agents) use excessive force, they are largely shielded from any public recourse.

Imagine the shock and outrage that would erupt if nurses killed 1,055 civilians in one yearthe number of civilians killed by law enforcement in the U.S. in 2020. Yetdespite the crescendo of voices arguing against qualified immunity after George Floyds murder in 2020our courts persist in creating a consequence-free zone for some of our nations most lethal professionals.

Law enforcement is no longer an emergency response mechanism, but more of an omnipresent, all-purpose force, summoned for everything from excessive noise to mental health crises to school misbehavior. This puts the public at much greater risk from the policewho are everywhere, doing everything, including things they are not trained (social work, mental health, etc.)

Unfortunately when brute force and imprisoning people in desolate locked spaces are the main tools for carrying out cops jobs, the outcome is (predictably) more harm.

The smartest pro-safety solution would be for legislatures to invest in communities needs that foster safety, such as housing, access to medical care or building out public defense as a broader resource to aid people whose lives are dismantled by our criminal system. But that doesnt mean we cant still push for lawmakers to take the most modest step in the right direction: ending qualified immunity.

The Boule decision isnt ideologically uniqueits just a depressing reminder of how expansive law enforcement immunity really is (plus a spotlight on the horror that is our Constitution-free border zone). The Supreme Court has continually kicked rulings on qualified immunity to the legislature, building precedents for protecting law enforcement at the expense of the American people (with a pair of such rulings just last year in City of Tahlequah v. Bond and Rivas-Villegas v. Cortesluna.)

In a world where Democrats control the Senate only on paper and fact-free crime hysteria is on the rise, its easy to feel SCOTUSs abandonment of the individual is the end of the road. But in fact, there may still be hope.

While we wait for Congress to break the Washington deadlock, there are other system actors who can hold police accountable in court and play important rolesprosecutors and public defenders.

Prosecutors can use do-not-call lists, which are lists of police officers to no longer call to testify in court because those officers arent credible witnesses. This disengages bad cops from courthouse power.

Meanwhile, public defenders can also help. They serve around 80% of accused people and stand as a last bulwark between ordinary people and law enforcement overreach. Public defenders also are often the only legal-system actors present and able to help at moments of peak crisis.

And some local leaders across the country are making strides, with tangible impacts. In Delaware County, Pa., for example, dynamic new leaders in the public defenders office identified the need for change, and by reimagining the role of their office, they have made it a community haven for holistic support, rather than just a space for legal counsel.

Unfortunately, public defender offices continue to be chronically underfunded at all levels of government. For example, the latest numbers show that California recently proposed budgeting 82% more resources to prosecutors than public defendersand this was in a progressive stronghold.

Until our elected officials realize that the shamelessness of American policing is a fertile source of common ground, those of us in the courthouse will have to do our best to repair the irreparable harm of American law enforcement.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Emily Galvin Almanza is the co-founder and executive director of nonprofit Partners for Justice. Previously, she worked as a public defender in California and New York.

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Congress Needs to Fix Qualified ImmunityHere's Why - Bloomberg Law

What the Supreme Court Loses With Justice Breyer’s Retirement – TIME

During the quarter-century year career on the Supreme Court, Justice Stephen Breyer constantly cultivated two judicial virtues now increasingly absent from the federal bench. The first is a careful, empirical cast of mind, constantly alive to the lived experience of litigants, institutions, and the world. The second is a humility about the limits of his own knowledge. These led him as a profound respect for other, more democratic bodies such as Congress, federal agencies. and state legislatures. Under their sway, Breyer vindicated Our Democratic Constitution as finely as anyone else to grace the high court bench.

Unlike the approaches favored by other Justices, Breyers brand of well-tempered empiricism forced him to be candid about what informed his judgment. It avoided simplistic fallaciespeddled hard under the originalist labelto the effect that constitutional law at the high court can avoid normative judgments: The text of the Constitution is too majestically general, and too capacious for it to be otherwise. By bringing to light the laws real justifications, and amplifying the space for democratic choice, his work embodied real judicial restraintand a real commitment to the founding American value of lived democratic choice.

Justice Breyers opinions are characterized by detailed consideration of the many factors that legitimately bite on a legal questions, coupled with close attention to factual detail. His dissent in the New York gun case last week, as well as the careful and modulated dissent from the wrecking-ball abortion decision, show as much. His opinions are often accompanied by voluminous appendices, listing in exhaustive detail the facts behind a specific point.

Sometimes, this exacting attention to the world drove Breyer to progressive conclusions. In a 2015 dissenting opinion, for example, he painted a comprehensive empirical portrait of a capricious, oft-lawless, and racially tainted capital justice system. His relentless and powerful catalog of racialized caprice and malice should lay to rest any thought that the American death penalty can avoid being cruel and unusual in violation of the Eighth Amendment, let alone even-handed across the color line.

In a more centrist vein, he penned in 2006 a sweeping rebuttal of the Courts decision to invalidate race-conscious efforts by schools to maintain integration. Chief Justice Robertss majority rested on a phrase of illusory simplicity: The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. In contrast, Breyer demonstrated beyond doubt that when historical patterns of racial discrimination carve up the present social world, race-blindness has the effect preserving uneven access to quality education.

Justice Breyers solicitude for the facts has not been mere code for liberal outcomes. Instead, respect for facts also led him often to conservative, even illiberal, opinions. In 2011, for example, he dissented from the Courts invalidation of a California statute banning the distribution of violent video games to young people. Canvassing alternatives to a ban, Breyer flagged serious enforcement gaps left by other technological options. In 2005, he cast the decisive vote upholding a six-foot-tall statute of the Ten Commandments on the grounds of the Texas State Capitol. This vote was based on his careful evaluation of the way both religious and secular citizens experienced their government in Texas. And in 2002, Breyer provided the pivotal vote in an important Fourth Amendment case about students rights against suspicionless drug testing. He upheld the practice against constitutional challenge, citing the serious national problem with drugs, and the schools decision to avoid criminal or disciplinary.

Indeed, his most recent majority opinion, issued in a religious liberty case at the beginning of May, ruled for the First Amendment claimants wanting to fly a Christian flag in Boston. By todays standards, this was a conservative outcomeyet Breyer managed to put together a coalition of both liberals and conservatives. Where he aimed to encompass diverse constitutional values, his conservative colleagues only weeks later blew past precedent to elevate the constitutional rights of the religious over those of the secular.

The clarity and rigor of Justice Breyers opinions are absent from many of his more conservative Justices recent work-products. As Professor Ryan Doerfler has recently explained, many Roberts Court opinions are an almost comical exercises in logic-chopping semantics. They are woefully lacking in attention to the actual context in which statutes are made.

Further, Breyers candor is at odds with the originalist label that several Justices proudly display. This label is paraded at a moment when critical areas of constitutional lawsuch as campaign finance, property takings, and racial equalityfloat completely free of any anchor in eighteenth-century understandings. In contrast, Justice Breyereven when you disagree with himtreats his reader as democratic equals who deserve an actual justification, not just high-handed sophistry.

The second key trait of Justice Breyers jurisprudence is respect for the ability of our democratic institutions to make their own judgmentsoften with tools far superior to courtsand to act on those conclusions. A 2007 study hence found him among the least likely judges to invalidate either federal or statute statutes. A study one year before that found him least likely to strike down a federal regulation (Scalia was at the other end of the spectrum).

Other Justices engage in democracy talktake Justice Kavanaughs comments about letting states decide on abortion. But Justice Breyer practices what he preaches. Not for him judicially created rules to the effect that agencies cant decide major questionsrecently invoked to shut down President Bidens vaccine mandate. That sort of judge-made rule can too easily be expanded and contracted, accordion-like, to fit the Justices policy preferences.

Justice Breyers career hence tees up the right questions to ask of the Court in coming weeks and months: Will it be well attuned not just to all the facts of the world (not just the convenient ones), and at the same time honor its limited empirical capacities? Will Justices work toward and support a constitutional democracyor are they a threat to that very enterprise? The Court that comes after Justice Breyers retirement has high standards to meet indeed.

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What the Supreme Court Loses With Justice Breyer's Retirement - TIME

Four Things to Know About the Supreme Court’s Ruling in Egbert v. Boule | News & Commentary – ACLU

The Supreme Court recently dealt a blow to federal police accountability in Egbert v. Boule. The case, in which the ACLU filed an amicus brief, centers on Robert Boule, who runs a bed-and-breakfast on the U.S.-Canada border. Boule sued Border Patrol agent Erik Egbert for damages for violating his rights under the First and Fourth Amendments to the U.S. Constitution.

The court ruled that Boule is not entitled to seek money damages for the harm caused by Egberts excessive force and retaliation.

When Egbert entered the inn without a warrant to investigate a guest staying there, Boule stepped between the guest and the agent and asked the agent to leave. Egbert then threw Boule to the ground, injuring him. After Boule exercised his First Amendment right to file a complaint and administrative claim with Egberts supervisor, the agent retaliated against him by prompting multiple unfounded investigations into Boule.

The court ruled in a 6-3 decision that Boule is not entitled to seek money damages for the harm caused by Egberts excessive force and retaliation. For over 50 years, under the Supreme Courts ruling in Bivens v. Six Unknown Named Agents, people have sought money damages against federal agents for violating their constitutional rights. But the court called Boules case a new context for Bivens liability and would not allow his claims. While the ruling further limits peoples ability to hold Border Patrol agents accountable in court, and undercuts an important deterrent to misconduct, it did not sanction the agents unconstitutional actions or grant agents permission to violate peoples rights in the future.

Credit: AP Photo/Greg Bull

Here are four things you need to know about the ruling:

The ruling does not eliminate your rights in the border region

The courts decision in no way changes your constitutional rights when interacting with border agents in the border region. While the facts of the case involve Border Patrols intrusion of the inn without a warrant, the courts decision does not sanction those actions.

Border Patrol, and its parent agency Customs and Border Protection (CBP), are bound by constitutional limitations, which prohibit agents from entering your home without a warrant. The Fourth Amendment of the Constitution protects against arbitrary searches and seizures of people and their property, in the border region and beyond. Within 25 miles of the border, as permitted by a separate statute not at issue in this case, Border Patrol is permitted to enter private property, such as your yard or ranch land, without a warrant but is explicitly barred, even that close to the border, from entering a dwelling, such as your house, without a warrant.

The court has narrowed the options to seek justice for border agents violation of constitutional protections in the border region.

Border Patrol also remains obligated to respect a broad range of other constitutional rights. For example, a Border Patrol agent cannot lawfully pull you over or otherwise detain you without reasonable suspicion, which means the agent must have specific, articulable facts that make it reasonable to believe you committed or are committing a violation of immigration or other federal law, not just a hunch. A Border Patrol agent also cannot search you or your belongings without your voluntary consent, unless they have probable cause, a higher standard requiring a reasonable belief that an immigration violation or crime has occurred. You always have the right to remain silent and say you wish to speak with an attorney.

In other words, your constitutional rights are still intact, even in the border region, but the courts decision will make it more difficult to hold federal agents accountable when they violate those rights. By further cutting off the ability to seek money damages under Bivens, the court has narrowed the options available to seek justice for border agents frequent violations of constitutional protections in the border region.

The Constitution still applies in 100 mile border zone

Much has been made of the 100 mile border zone, but you have the same constitutional rights within the border zone as you do anywhere else in the country. There are only two narrow circumstances in which the Border Patrol is permitted to act outside of normal Fourth Amendment limitations on searches and seizures.

Outside of these specific circumstances, all other constitutional protections apply within the border zone, and to individuals who interact with Border Patrol agents. The 100 mile border zone is not a Constitution-free zone.

American Civil Liberties Union

Know Your Rights | 100 Mile Border Zone | American Civil Liberties Union

The ProblemThe Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops and searches.

CBPs internal administrative accountability process is in urgent need of an overhaul

In denying Boules Bivens claim, the court argued that the Border Patrols non-binding administrative grievance process offered an adequate alternative to money damages for Robert Boule. It does not as clearly evidenced by the retaliation Boule faced after filing a grievance, and Border Patrols decision to keep Egbert on even after finding he acted inappropriately.

We know how frustrating the grievance process is first hand. The ACLU has filed over a dozen administrative complaints since 2020 documenting abuses suffered by hundreds of individuals that went unanswered for months and resulted in few, if any, changes to agency policy. The process, which is not subject to judicial review and has no mechanism for complainants to participate, focuses on disciplining officer misconduct rather than any other individual remedy to complainants.

This decision means that people whove suffered abuse by the Border Patrol abuse in the same way as Boule cannot obtain monetary compensation in court.

If administrative oversight mechanisms are to provide any kind of justice, the Department of Homeland Security, CBPs parent agency, must urgently make several changes. The department should create a uniform process to review and investigate all immigration and border related complaints, including implementing screening procedures for ensuring prompt assignment of a neutral investigator; prompt confirmation of receipt and whether an investigation has been initiated; a requirement that all relevant records (including video and audio files) be turned over to to investigators within 14 calendar days; written resolution of complaints; and appointment of an independent decision maker to impose discipline. The agency then must ensure individuals who they find at fault face meaningful accountability, rather than giving them a pass, as they did with Egbert.

Congress should codify and strengthen the right to sue federal law enforcement for abuse.

This decision has significant consequences for the victims of abuse by federal law enforcement. It means that people who have been subjected to Border Patrol abuse in the same way as Boule cannot obtain monetary compensation in court, and it may make it more difficult for other victims of abuse by federal law enforcement to bring their claims, as well.

While the ruling is a disappointment, the fight is not over. Congress can, and should, pass legislation to enshrine the right of individuals to sue federal law enforcement officers and receive damages from agents who violate their rights. If it did so, victims of Border Patrol abuse would no longer have to contend with the Egbert ruling, and more broadly, the availability of this important remedy for abuse by federal agents would no longer depend on the willingness of increasingly-hostile courts to allow Bivens cases to go forward.

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Four Things to Know About the Supreme Court's Ruling in Egbert v. Boule | News & Commentary - ACLU

Creator of ‘The Wire’ talks to the Reformer about troubled police departments like MPD – Minnesota Reformer

David Simon hates the war on drugs. But he doesnt hate all police. He takes issue with police militarization, but he doesnt have time for slogans. In fact, hell cuss out anything from ACAB on the left to Back the Blue on the right. For him, the solutions to problematic law enforcement, even here in Minneapolis, are more complex than slogan-chanting political action, but not impossible.

A longtime Baltimore Sun crime reporter-turned-author, screenwriter and TV producer, Simon is most known for creating The Wire, a five-season look at how the city dealt with drugs and crime. In 2008, The Atlantic called him The Angriest Man in Television.

With his writing partner and production team, he just pulled off a six-episode HBO series called We Own This City that returns to Baltimore to tell stories of corrupt cops. The work is based on the reporting of Justin Fenton, a former crime reporter at The Sun now with a nonprofit newspaper called The Baltimore Banner. Twin Cities readers will see similarities between Baltimore post-Freddie Gray and Minneapolis post-George Floyd. Among them:

The Reformer talked to Simon about those similarities. Heres his view of what bad law enforcement looks like, what good policing can look like, and what it takes to get there (edited heavily for space):

I cant speak to most demographics of every city or what the crime problems are. Baltimore is a post-industrial, very heavily Rust Belt dynamic, with a very high rate of drug addiction, and its a city that has committed for about 30, 40 years to aggressively pursuing the drug war. So that sort of has colored and affected everything. I dont know if that marries up to the Twin Cities or not, but thats who we are.

I thought it was incredibly overt. The video was a little bit astonishing. How long it went on and how indifferent (Derek Chauvin) was. He seemed to be completely devoid of awareness that he was taking somebodys life or coming close to taking someones life. He doesnt seem to be comprehending. And the inertia of the cops around him was pretty shocking as well. But I mean just how long it went on.

There are moments of police violence that are over very quickly. You might argue from the premise of a cop that an instinctive or impulsive moment resulted in a death or police violence. Six, seven, eight seconds one blow, one battering. When it gets to be minutes thats something Ill always remember the premeditation becomes utterly convincing.

The Freddie Gray thing was very different in that were not quite sure what happened. At a minimum, the Baltimore Police Department had a guy in distress, who had suffered a spinal injury, and they rode him around unattended for 45 minutes in the back of a wagon. So theres definitely a case of negligence there.

The prosecutors looked for video of this van going around west Baltimore to see if they were giving him a rough ride. It doesnt seem so. That was the initial presumption. The more video came in, the more the van seems to be traveling at relatively normal speeds.

Its a little bit more of an enigma than George Floyd. George Floyd theres nothing enigmatic about it at all.

The work slowdown is a pretty remarkable thing. Clearly the arrests nosedived (in Baltimore) and the police stopped getting out of their cars to clear corners or go affect an arrest. They decided fundamentally that they werent going to do that. It was not organized, it was not called for by the union or anything like that, but it clearly happened. And definitively so because the arrests collapsed. And suddenly. I have no way of proving that. I think its incredibly unprofessional on the part of the police to stop doing their jobs and continue to take pay for it.

On the other hand, there is an argument that police were making a point that a lot of people didnt want to contend with, which is this: In Baltimore, its really subtle, but the prosecutor I hate to bring up racial politics, but this is just true the prosecutor, Marilyn Mosby, whose political base is African American and critical for her, politically, she did not want to go into another weekend without delivering some sort of indictment.

They were hoping to in some way mollify the protests. So she charged the death in the back of the wagon. She overcharged it as a second-degree murder there was certainly a negligence case there and possibly manslaughter, I dont know. But she charged it as second-degree depraved heart murder.

And this is sort of the subtle nuance here: The three officers who were involved in the transport were African American. The three who were involved in the arrest the knife arrest, which, whatever else it was, was effectively a legal arrest. Im not saying it was the best police work or that they needed to make that case for a pocketed knife, but they did. They were white. They were white officers who made the arrest.

By charging the Fourth Amendment case criminally which is to say false arrest or they in some way abused his civil liberties and denied his due process by arresting him she got a mixed-race group of defendants. Three and three. Which was important for her politically.

Unfortunately, what that did was, the entire police department watched what she did and said, Wait a second. Its one thing to start debating about what happened to this guy in the back of the van the fact that they werent around for 45 minutes. If youre telling me that even if I make a mistake on a Fourth Amendment case and when I can do a Terry stop (stop and frisk) or when I can detain a suspect

The Supreme Court changes Fourth Amendment stuff every term. They come up with different rules every term. If youre the average cop, you know, the chance of you making an arrest that will be thrown out in court on probable cause is pretty high. Eventually its gonna happen. Some judge is gonna say No, that isnt probable cause. Its not a distinct fine line every time.

And Gray he ran. He looked at the cops and he ran. Now, do I think that should be probable cause that you cant run from a cop without being chased? I dont, but unfortunately the U.S. Supreme Court does. That is reason to pursue and detain. Look up the law, which Mosby, of course, was unwilling to acknowledge.

So these cops, they were gonna beat it in court anyway. It was a legal arrest. But she basically sent a message to the Baltimore Police Department that if you make a mistake, if I decide you made a mistake, even a good faith mistake on probable cause, Im gonna charge you criminally. Im gonna try to put you in jail and take away your pension. And so a lot of cops said, Hey, why am I getting out of my car?

Thats a huge problem and that comes hand-in-glove with having positions empty. They cant fill the post cars, they cant fill the radio cars some nights without having guys work doubles.

So part of it is legitimate in that theyre down so many positions because of the exodus and because its (Baltimore) a poor city and theyre not throwing academy classes through at the rate they used to.

So some of the overtime is legitimate, but a lot of it is overtime fraud In Baltimore, you get paid overtime for a couple of things: Obviously, if you get involved in something and you have to work over, and then also for court pay, meaning youre working (4 p.m. to midnight) and you have to come in at nine in the morning to go to district court on your arrests.

That creates an incentive to do a couple of things, one of which is make a cheap, shitty CDS (controlled dangerous substance) arrest 40 minutes from the end of shift and then make sure you spend two hours processing drugs down at evidence control, processing a prisoner, and youre gonna get paid extra.

Or even better, make a bunch of shitty, meaningless arrests failure to yield, loitering in a drug-free zone, whatever. It doesnt matter whether it goes to court; youre not trying to actually convict anyone of anything. But they all gotta show up in court. And if you fill the days docket, youre gonna get paid for whatever the prosecutor signs your slip for, saying that (the officer) was in court on his cases.

And then if youve arrested so many people on such bullshit, then you get three days, four days, five days (OT). Meanwhile, the guy whos actually working on his post to try to solve whoevers robbing people with a gun, burglarizing churches and he makes one arrest for the month because he actually solved the case, he gets paid for going to court one time.

So theres actually an incentive to do bad police work to get paid more. And thats the overtime demon actually transforming police work into the worst possible thing.

Well, youve got to end the drug war Its not as if police work was devoid of violence or devoid of racism or any of these things. But tellingly, the police department in 1980 and certainly in 1970 was majority-majority white. It was run by white guys, the mayor was white, the power structure was white.

And now the Baltimore department is majority-minority. The command staffs African American and the mayors African American. The power structure is now no longer white, and yet the levels of police violence and corruption and dysfunction are worse. Think about that. I mean, thats probably very different from Minnesota.

Its not that the department of 1970 wasnt capable of considerable police violence against neighborhoods of color and people of color. I know that they were capable of predatory policing.

So we start from a position where of course it was bad. But in 1970, 1977, 1980, all the way through those years, the clearance rate for things like murder, robbery, rape, assault they were at or above the national average. We solved more of our crimes. And thats kind of one thing you want police to do its the one thing that a police department can do for a city is when people hurt people and theres actual crime as opposed to drug warring.

There is a linkage between the clearance rates for felonies and and the rate of crime, and you can point to Boston in 1991, what they did. Its actually been demonstrated that if you lock up the right people for the crimes that matter, you can actually affect the quality of life in your city.

Well, the clearance rate when I was in the homicide unit to write a book in 88 was 71 or 72%, somewhere in there. In the end, and of course, that doesnt mean 72% went to jail. It means like four out of 10 people who committed murder once you shake it out at the courthouse, and rightly so, not everyone should be convicted, there are not guilty verdicts and there are cases that are dropped because of insufficient evidence, but by and large four out of 10 people, if you killed somebody in Baltimore, you saw the inside of a prison cell for some length of time.

Right now, the clearance rate is about 38%. Its probably one in 10 (in jail after committing murder). So the difference is back then you had 230 murders a year in a city of 730,000. Now, we have about about 120,000 less people, and we have 350 murders a year.

Because we trained two generations of cops how not to do the things that solve crime. They cant do retroactive investigation. They cant write a search warrant that doesnt get thrown out. They cant testify on the stand without perjuring themselves. They dont know how to properly interview people. They cant write a f***in report.

What they can do is go up on the street and grab bodies and throw them against the wall and decide whos going to go in the van for the ground stash. Or not even the ground stash for loitering or whatever.

We train them in the policies of mass arrest and drug war, which doesnt fix anything. Not only did it destroy neighborhoods and lives and the people being policed were over-policed brutally it destroyed law enforcement, it raised a generation of cops who cant actually do the f***ing job you need them to do and thats the police department now. Those skill sets dont exist anymore. So the drug war destroyed us.

And I would argue that that is why there was no peace dividend. If you think about the fact that the police department went from being majority white to being majority-minority Black command staff, Black city hall, and yet its worse? It should have gotten better. Instead, racial integration had been achieved in a fundamental way and yet its worse.

And the only thing that can explain that, to my argument, is the mission got worse. Weve committed to a mission that is incredibly destructive and alienating. Everyone has been locked up for something. My own film crew kept getting locked up whenever we finished filming and tried to drive out of the ghetto.

The Fourth Amendment ceased to exist under the last 20, 30 years of the drug war. It just got worse and worse. Until you had this Gun Trace Task Force that created this racially mixed group of officers who had come together to create the perfect predatory machine to just rob the shit out of people under the cover of the drug war.

And until we change that, until we get rid of drug prohibition and return the mission creep that thats created for law enforcement, police reform is doomed.

We have to accept that the drug war has brought us to this point.

How many slogans can I sneer at? All cops are not bastards. I know cops who have done credible and worthy police work that made my city better and werent shit who would go into peoples pockets. I knew guys who were just playing the stat game and didnt care about the people they are policing. Ive known all kinds of cops. All cops are not bastards.

However, the drug war will manufacture more bastards out of young cops than anything Ive ever seen. So theres some truth in what people were feeling. Although the slogan itself is alienating from anybody whos ever known a cop who ever tried to do the job the right way.

I dont believe you can back the blue unequivocally, in any sense if these are the policies that the police are being asked to enforce.

On the other hand, I dont believe in defunding police as an agency. I would certainly love to take away the money they spend on trying to do drug interdiction prosecution and give that to social programming. But Id also like to see the actual investigative, retroactive felony investigation enhanced to get the clearance rates back up to where theres an actual deterrent to violence. Because that, as I said before, that matters.

There was a great experiment done in Boston in 1991 where the police department went around to all their investigative units and they basically asked for police intelligence. Who were the 100 worst badasses in Boston, right? Who are the 100 guys a week that keep showing up in our files, keep showing up in our lineups? But that we cant every time we make a case, the witnesses end up intimidated. Who are the guys basically who keep showing up in case after case of violence and we know their names. Lets make a list and then they went out for those 100 guys, just 100 guys, and they got them on everything from parole violations to weapons violations. They basically targeted the people who were their repeat violent offenders. And they dropped the murder rate by 40%. Did anyone pay attention?

When we did Hamsterdam, we assumed, I mean, obviously, no ones ever tried it. They tried it in Zurich, in Amsterdam and Portugal and theyve had no increase in crime. In areas where you practice this level of tolerance for drug use, it becomes untenable for normal people. You dont want anyone living there. Huge amounts of human degradation. And your overdoses probably do go up, especially during this time of fentanyl.

But youre basically practicing harm reduction. Youre saying, We cant arrest our way out of this. And maybe by putting it all in place, we can direct all of our social services into that quadrant If you had someplace to push it, to practice, not to make some glorious libertarian moment of free love and drug use, but just harm reduction and its never been tried because no politician would dare stand behind them.

When you say progressives, are they white? Do they live in the inner city? Do they live in the area where crimes are occurring? Because let me tell you something, I still know a lot of people who live in east, west Baltimore they do not want to be unpoliced. Thats not what they want.

If you ask them what they want out of their police department, they say they want to not be harassed. They want to get treated with dignity when theyre trying to get from the car to the curb. They want to be respected They want to not be over-policed. They want no predatory police.

And then when you talk to them about whats wrong with their neighborhood and why its unbearable to them, they say Im scared. They want the police to come and lock up the badasses who are shooting people or robbing people or breaking into the houses. Thats what they want. And I am absolutely and firmly convinced progressives arent talking to them.

They want the police to do the job, the only job that police are good at and (criminologist Ernest) Burgess called that taking out the trash. And by that he meant the guys who were hurting other people. Not the guys who are hurting themselves with drugs, not the guys who were selling contraband so somebody could hurt themselves.

But everybody you talk to whos trying to make a life and in the hardest places in Baltimore, they want the police to do the one job they can do. And the police cant do it anymore. They learn to do the wrong f***ing thing.

Change the goddamn mission, and then from there, theres a basis for reform. But thats not satisfying enough to the lefties who want all police vanquished. Invariably, they dont live in these neighborhoods. They just imagine what its like but they dont actually live there. And it doesnt satisfy the people on the right who are convinced every time they read of a drug overdose or drug-related murder that the dysfunction of the drug war has to be applied harder and longer and more brutally. The people in either extreme are f***ing useless. They just are.

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