Category Archives: Criminal Justice Reform

NYC Cop Rebellion Highlights Complicated Interplay Between Freedom and the Rule of Law

MLK

Some laws are so egregious they ought morally be resisted, however destabilizing such resistance might be. Only the most mindlessly authoritarian would disagree.

The hard part is knowing where to draw the lines.

New York City cops are in rebellion, taking a de facto hiatus from policing victimless “crimes.” Whether this is an “important step” toward improved safety and constitutional policing, or a dire threat to the rule of law, seems all a matter of perspective. Cops being as diverse as humans generally, their motivations presumably range from “[a]cting like a bunch of high-school jocks protesting a ban on keg parties” all the way to heartfelt questions about the legitimacy of a system that leaves a man dead for the “crime” of selling loose cigarettes.

Either way, the reduced issuance of petty crime summonses and parking violations will starve the city of revenue, while endangering no one. This strategy, of hurting the mayor’s budget without turning a blind eye to real crime, exposes an unpleasant truth about modern policing: that cops are sent out armed with guns to risk their lives ginning up revenues needed to cover budget shortfalls.

Let that sink in.

I understand the importance of the rule of law. But morality dictates consideration of a system that encourages forceful interaction over such trivialities as selling loose cigarettes, and for the purpose of insulating politicians from the consequences of overspending.

The rule of law is but a means to an end, not an end in itself.

A provocative law review article entitled “The Myth of the Rule of Law” asks the reader to consider the following:

“Congress shall make no law . . . abridging the freedom of speech, or of the press; . . . .”

On the basis of your personal understanding of this sentence’s meaning (not your knowledge of constitutional law), please indicate whether you believe the following sentences to be true or false.

_____ 1) In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.

_____ 2) The President may issue an executive order prohibiting public criticism of his administration.

_____ 3) Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.

_____ 4) A federal statute may be passed prohibiting a citizen from falsely shouting “fire” in a crowded theater.

_____ 5) Congress may pass a law prohibiting dancing to rock and roll music.

_____ 6) The Internal Revenue Service may issue a regulation prohibiting the publication of a book explaining how to cheat on your taxes and get away with it.

_____ 7) Congress may pass a statute prohibiting flag burning.

After exploring ways in which seemingly clear rules of law are malleable to reach different ends, based on the perspective of those with the power to apply them, the piece returns to those initial questions:

If your response to question one was “True,” you chose to interpret the word “no” as used in the First Amendment to mean “some.”

If your response to question two was “False,” you chose to interpret the word “Congress” to refer to the President of the United States and the word “law” to refer to an executive order.

If your response to question three was “False,” you chose to interpret the words “speech” and “press” to refer to the exhibition of photographs and paintings.

If your response to question four was “True,” you have underscored your belief that the word “no” really means “some.”

If your response to question five was “False,” you chose to interpret the words “speech” and “press” to refer to dancing to rock and roll music.

If your response to question six was “False,” you chose to interpret the word “Congress” to refer to the Internal Revenue Service and the word “law” to refer to an IRS regulation.

If your response to question seven was “False,” you chose to interpret the words “speech” and “press” to refer to the act of burning a flag.

Why did you do this? Were your responses based on the “plain meaning” of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens’ expressive activities?

My own answer would have been that the First Amendment neither permits nor prohibits anything. The First Amendment is nothing more than words on paper, incapable of doing anything. It is only our collective willingness to enforce, expand or modify it that has any function; that sufficient numbers of us agree, consciously or not, to permit the exercise of collective force to do one or the other; and that sufficient numbers more passively do not resist.

We are unavoidably a nation of both laws and men, and needed change comes in many forms. Sometimes it comes because democratically elected representatives vote for it. Sometimes it comes because one person stops allowing her complicity to lend legitimacy to a bad law.

It bears remembering that enforcing the rule of law was what five New York City officers were doing when they placed Eric Garner in a grapple hold for the “crime” of selling loose cigarettes. As Professor Stephen L. Carter eloquently wrote:

It’s unlikely that the New York legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.

*    *     *

Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate.

That’s too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is… : Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.

Some of the loudest complaints about police misconduct are from the same people who demand a leviathan government exercising control over vast areas of our lives. Such control must of necessity be exercised in the form of laws, laws that must be enforced at the point of a gun.

We all draw lines somewhere, between the laws we think ought be enforced, however misguided they might be, for the sake of preserving the legitimacy of the system; laws so egregious and vile in nature, that they must morally be resisted; and those that fall somewhere between, the close calls and grey area where good faith disagreement can be tolerated. The criteria we use, the lines we draw, are inherently subjective.

We should not ask cops to enforce laws that we are unwilling to have them kill to enforce. We should not risk lives enforcing prohibitions against victimless crimes.

If a rebellion by New York City cops is how this change comes—I can live with that.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

An Open Letter To Supporters of Ismaaiyl Brinsley

ramosandliu

To Whom It May Concern:

Yesterday afternoon, two NYPD officers, Wenjian Liu and Rafael Ramos, were shot at point-blank range by a man named Ismaaiyl Brinsley, who also shot his girlfriend earlier in the day in Baltimore. Statements made online by Brinsley indicated that he was killing cops as retribution for what happened to Eric Garner, but reports are also coming out that he had issues for a very long time. The reactions to this shooting are predictable, especially from the right. An NYPD police union even declared war on its citizens.

We expect this. I’m going to talk now to those of you celebrating the shooting.

Before I begin this letter properly, I need to let you know: I’m a card-carrying member of the American Civil Liberties Union and a donor to the Innocence Project. When protests over Trayvon Martin’s death happened, I stood beside people – as one of only a few white people in the crowd – and protested in Bridgeport, CT. I tolerated Ernie Newton and the Nation of Islam while holding hands with my friends and singing We Will Overcome. I get it. Police brutality is a legitimate issue, it’s one that any honest person will admit affects black people disproportionately, and it must be challenged and ultimately changed.

So believe me when I say: you’re screwing this up. At best you’re burning any currency that’s been built up since the acquittal of Daniel Pantaleo; you’re only going to get more people hurt, or worse.

I’m going to belabor two main points:

1) Speaking solely from a tactical perspective: we – by we, I mean protesters, supporters and others who decry police brutality – are in a position of weakness. It needs to be understood that a lot of people – I don’t have recent polls I trust, but I’m comfortable in calling this a majority – are perfectly fine with police officers using whatever means they have to control “other” people. To them, anything that threatens their sense of security of stability is open game. Remember: when the NYPD was spying on Muslims, most citizens approved of it; it didn’t affect them, if they didn’t have anything to hide, vague reference to 9/11, etcetera. These people are taught that the police are infallible. Yes, we know that there’s plenty of evidence to the contrary, but this is about optics. Simply put, we have to convert a lot of people, and rooting for murder is a poor way of going about that. Remember: everyone talks about Martin Luther King Jr., and it wasn’t because of his comments on rioting. Meanwhile, Huey Newton and Fred Hampton are footnotes.

2) None of what I said above takes into account humanity. The accusations people are making about the police is that they don’t hold into account the lives of those they “serve and protect”, particularly those of minorities. Statistics honestly bear all of this news out. But when you sit there and cheer for the deaths of two officers, with families that just lost someone before Christmas, take a look in the mirror and ask yourself what you have become. If you think so low of the police force or anyone in an uniform that you consider them monsters, do you really want to drag yourself to that level? Listen: I know people who are cops, or want to be cops, that I don’t trust with an ice cream cone, let alone a gun. The system needs reform. But when you cheer a senseless murder from an obviously deranged individual, you’re no better than the police. I’d argue you’re far worse, honestly.

I’m sure there will be a chorus of “you don’t get it!” from people saying a white man on a site that prominently uses the Gadsden Flag can’t speak for how to approach the police. I’d argue it’s my position as a suburban white man that gives me a perspective of the people you’re going to have to convert to get real, honest reform, and not just a temporary burst of energy that burns off just as quickly. Trust me: I hold no love for the ignorant white doofus who thinks racism ended on July 2nd of 1964, complains bitterly that life isn’t what it was like in 1986 for some reason he can’t articulate, and doesn’t understand our political system beyond hating Obama. But he has to be converted, or at least made to understand a new normal.

What is happening now is turning off that person. The more of those people that get turned off, the harsher the reaction can be from the NYPD and other police departments across the country. More death, more injury, more protests, more spinning of our tires. If we want true reform, and with it true equality regardless of race, then it’s critically important that we forcefully denounce Ismaaiyl Brinsley, denounce anyone who supports his actions, and keep working towards a better future for everyone.

Sincerely,
Chris Bowen

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

Quote of the Day: A Question for “Pro-Life” Death Penalty Advocates Edition

Matthew DesOrmeaux over at United Liberty poses a very important question to those in the “pro-life” community who support the death penalty. This question comes in response to a South Carolina judge vacating the conviction of George Stinney Jr. who was executed at the age of 14 in 1944.

Is the execution of an innocent person, even a child, enough to undermine faith in the criminal justice system as a whole, and capital punishment in particular? If one error is not convincing enough, is there some acceptable level of innocent life ended at the hands of the state (or their peers, if that makes you feel better) that would change your mind? Or is the (spurious) deterrent factor of the death penalty or faith in the process, regardless of further evidence, so strong as to make all wrongful convictions and executions irrelevant?

I’ve already seen one person respond in the comments section to the effect “Well that was during Jim Crow [1]; our criminal justice system is so much better now.”

Even as cynical as I am about the American criminal justice system, I believe it’s fair to say that there has been some improvements since 1944. I cannot imagine a 14 year-old being executed in 2014 (someone with the mental capacity of less than a 14 year-old…sadly yes but not an actual 14 year-old). DesOrmeaux’s overall point is relevant as the National Academy of Sciences found that currently 1 in 25 death row prisoners is innocent.

With the learning curve so steep for supporters of capital punishment, at this rate it will be 2074 by the time a Texas judge admits that Rick Perry allowed (likely innocent) Cameron Todd Willingham to be executed on his watch.

[1] For what it’s worth, George Stinney Jr. was black.

A Public Service for Our Readers Regarding Federal Drug Enforcement

We are posting this as a public service and informational notice, for our cannabis using, interested, curious, or just plain liberty oriented readers and friends…

Contrary to articles such as this:

Congress Effectively Ends The Federal Ban On Medical Marijuana
HighTimes

It seems the controversial $1.1T spending bill that is preventing the U.S. government from shutting down is chock full of surprises.

As you may know, much to the dismay of marijuana activists and lovers of democracy everywhere, the bill smacked down Washington DCs referendum that legalized recreational marijuana in the nation’s capital. What you may have missed (because those shifty politicians are doing everything under the table) is that the bill also quietly, but effectively lifted the federal ban on medical marijuana.

Let us be VERY clear… NO the federal government has not legalized, or ended the federal prohibition of medical marijuana.

No, really, they didn’t, no matter what High Times says.

Manufacture, distribution, transportation, storage, sale, possession, and use, of Marijuana are all still federal crimes. Further, they are automatic disqualification on a background check, or a drug test, or a security clearance etc… etc…

They also make one a prohibited person with respect to firearms, explosives, and destructive devices.

Yes… even in Washington and Colorado. 

All they did in this omnibus appropriations bill, was to partially defund and deprioritize enforcement of federal marijuana prohibition, against medical marijuana dispensaries only (NOT grow ops, or users) in those states with medical marijuana, between January and September.

That’s it. 

Here is the actual text, of the portion  of the bill in question:

“Sec. 538. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Sec. 539. None of the funds made available by this Act may be used in contravention of section 7606 (“Legitimacy of Industrial Hemp Research”) of the Agricultural Act of 2014 (Public Law 113-79) by the Department of Justice or the Drug Enforcement Administration.”

There has been no real change in the law, there is just a change in the administration of a small subset of enforcement.

In fact, this action makes getting the changes we need in the law harder and less likely.

Far worse though, it furthers the toxic notion that we can just arbitrarily, capriciously, and disparately, choose to not enforce the law, when we feel like it… But then any time we change our mind we can go ahead and start enforcing it again.

This disrespects and debases the very foundation of rule of law.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

This Advice Could Save Your Life and Preserve Your Liberty

garner

The fact that the police can get away with killing an individual who presented no threat to anyone with the whole incident caught on camera is quite disturbing. A grand jury decided not to indict a NYPD officer by the name of Daniel Pantaleo who used a choke-hold banned by his own department which resulted in the death of Eric Garner. Unlike the incident in Ferguson which contained conflicting testimony and forensics which support Darren Wilson’s version of the event, this event in New York was caught on video from at least two different camera angles (and available on YouTube for the whole world to see). This seems pretty cut and dry at least for an indictment.

So how is it that almost any accused individual brought before a grand jury is indicted unless the accused individual happens to wear a government issued costume? Are grand juries really that biased toward the police? After reading a few dozen comments on threads responding to the grand jury decision, I’m afraid the answer is yes (if you want to lose all hope for humanity, read the comment section to any article of consequence). I reach this conclusion because these are the sort of people who serve on juries and decide that it’s perfectly okay for the police to kill someone if the suspect had any criminal record of any kind, resisted in any way, or even “disrespected” the police on the scene.

The truth is that reforming the way police do things is going to take time as changing people’s attitudes is going to take time. There are things that we as individuals can do here and now so that we don’t become victims of the police, however. Many of these perfect, law abiding specimens of humanity who like to share their wisdom with the rest of us on the internet say that if Eric Garner hadn’t resisted (at all) he would never have been put in the choke hold that contributed or caused his death. On this point, I grudgingly have to agree.

I don’t say this because I believe the use of force against Garner was appropriate but because far too many people do (and juries are composed of people who aren’t always very reasonable).

One common thread in many of these viral videos where the police overreact is that the individual either resists (however mildly), makes a sudden move, or is perceived as being armed [1]. The worst thing you can do is give the cops a reason to use force and an excuse for jurors who will normally give the police the benefit of the doubt a reason to doubt.

So how does one increase one’s odds of surviving an encounter with an overzealous cop? Here are a few suggestions.

1. Before you end your session on the internet today, watch Flex Your Rights’ “10 Rules for Dealing With Police.” I have the entire series and a summary of the rules posted here. If you know how you can respectfully but firmly assert your constitutional rights before the next time you are confronted by the police, you will have advantages most people do not and you will reduce the chances that the encounter will escalate to violence.

2. Act as if the encounter is being recorded and your actions will be scrutinized in front of a judge, jury, and/or the general public. For better or worse, cameras have become ubiquitous, so the chances the encounter is being recorded increase everyday. Use this to your advantage. Better yet, if you have a camera phone, record the encounter yourself. Recording the police in public is legal almost everywhere in the U.S. Follow this link to be sure of the specific legalities of your state. Once you have the camera rolling, follow the aforementioned “10 rules” and be the kind of person a judge, jury, and the general public would be sympathetic toward. If you act like a jerk or are disrespectful in any way (regardless of how the cop acts) this could all backfire.

3. Don’t make any sudden moves and keep your hands visible at all times. If you are pulled over keep your hands on the steering wheel and turn on the dome light if its dark out. When the cop asks for your license and registration, say something like “My license is in my wallet” and very slowly reach for it and hand it over. Then say “My insurance card and registration is in the glove box” then slowly open the glove box and retrieve the documentation. Better yet, have the documentation ready before the cop comes to your window; its less movement and you know you will be asked to produce these items anyway. Had this man followed similar advice, he might not have been shot by a South Carolina State trooper.

4. Understand that you are NOT in control. If the police have decided to put cuffs on you and/or arrest you, do not physically resist, attack, or run. If you do, the results will not end in your favor. Whatever injustice has befallen you will not be settled until later. Also, keep your mouth shut and only speak of the event with your attorney.

Its my hope that these cases which have scandalized us all will lead to better understanding of how we can peacefully resist the growing police state. Its not my intention to blame the victims such as Eric Garner, John Crawford III, Kelly Thomas and countless others but to do my part in not creating new victims of overzealous cops afraid of their own shadows.

[1] Its become a pet peeve of mine seeing headlines that state that the police shoot an “unarmed” man. For one, unarmed does not mean harmless. Also, its probably safe to say that most of the time when the cops shoot an unarmed person, it was unclear if s/he was armed at the time. While we can and should scrutinize the police when they use force, we cannot expect them to have perfect knowledge in real time.

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