Civil Rights, New York

What it means when police turn their backs

(This article was originally published on Fox News Latino.)

Public servants take an oath to protect and uphold the Constitution and laws. From that solemn oath stems a police officer’s duty to serve and protect the public. The Constitution is merely a reflection of the will of the people.

The rule of law also flows out of the Constitution: the democratic order, public institutions, statutes and regulations, policing itself. Law and order exist because as society we have deemed vital to grant a shield, a weapon, and a salary to the men and women tasked with keeping it.

That’s why New York and the country shook when a deranged gunman shot and killed police officers Rafael Ramos and Wenjian Liu. When you threaten the life of a police officer, you threaten the rule of law itself. Everyone feels unprotected.

But we also feel unprotected when police turn their backs. That’s precisely what happened when scores of people in uniform—ostensibly in mourning over Ramos and Liu’s senseless deaths—turned their backs on Mayor Bill de Blasio during the officers’ funerals.

Turning your back on the mayor is not a protest. A real protest is a legitimate part of the social contract, enshrined in the First Amendment right of free speech. Nothing stops an officer from freely expressing himself or criticizing political leaders when off duty, or in private with colleagues and family members.

But when a police officer—in uniform, armed, and bearing a shield that represents us all—stages an act of defiance in public and in front of an official elected by the public, there’s nothing legitimate or democratic about his actions. It’s insubordination. It’s a violation of their oath to protect and uphold the Constitution and laws.

Suppose for a moment that another lunatic with a gun, the kind that kills public officials, would’ve interrupted the ceremonies. Would any of the back-turning officers have bothered to make the ultimate sacrifice and protect the mayor? Would they even have noticed? Anyone worthy to bear the shield of the state stands at attention in time of crisis, not turn his back.

Which is why this spectacle should not be read through the lens of politics or opportunism; it is instead a constitutional problem. What happened in New York should be a cautionary tale for the United States. Is this the kind of force the country wants enforcing its laws, its ideals, its institutions?

The irony of this episode is that it finds its roots in another constitutional issue: the discriminatory application of stop-and-frisk tactics on New Yorkers of color. Last year, a federal court in Manhattan declared the NYPD’s application of such tactics unconstitutional. But police unions attempted to appeal the ruling, arguing in court that compliance with it dealt a blow to police morale and its bargaining rights with the city. A panel of federal appellate judges roundly dismissed those concerns.

It’s a troubling precedent nonetheless—the notion that police reputation and self-interest somehow trumps compliance with the Constitution. That it trumps the will of the people. The same people who put Bill de Blasio in power. The same people who grew weary of stop-and-frisk and simply asked for fairer treatment from those who took an oath to serve and protect them.

If police turning their backs on an elected leader—on the people—doesn’t get us to rethink the kind of men and women we want defending everything we hold dear, then nothing will.

Civil Rights, New York

Dante and democracy

(A version of this post first appeared at Latino Rebels.)

It’s all Dante’s fault.

Were it not for his son, Bill de Blasio would probably not have won New York City’s Democratic primary, let alone the mayoralty. And the mess that boiled over last week between the mayor and the NYPD would’ve never happened.

Dante—or rather, the political ad featuring him—was a hit with New Yorkers because of his massive afro, his likeability, and his message on a controversial police tactic.

“He’s the only one who will end the stop-and-frisk era that unf airly targets people of color,” he said in the ad, echoing his father’s unflinching stance on discriminatory policing.

The ad was a smash because it not only captured de Blasio’s policies within the context of family life, but also because Dante looked like many of the thousands of minority youths who were subject to suspicionless stop-and-frisk tactics during the Michael Bloomberg years. When New Yorkers saw Dante, they saw themselves.

Today, police unions and a subset of the NYPD have gone to war with Bill de Blasio over Dante. They have other grievances, too, but they specifically felt the mayor threw them under the bus when he decided to bring up “the talk”—that uncomfortable but necessary conversation nearly every parent or father figure to a young man of color has had over potential dealings with police.

Dante is “a good young man, a law-abiding young man, who would never think to do anything wrong,” said de Blasio at a news conference following the non-indictment in the case of Eric Garner, the Staten Island man who died in a chokehold banned by NYPD policy.

“And yet,” the mayor said, “because of a history that still hangs over us, the dangers he may face—we’ve had to literally train him, as families have all over this city for decades, in how to take special care in any encounter he has with the police officers who are there to protect him.”

These were not fighting words; they were never meant to be. They were simply a candid acknowledgment of a painful reality for many New Yorkers of color, at a moment they needed to hear their lives mattered—and that leaders, institutions, and the rule of law were not out of touch with their suffering.

The speech was a mere repeat of Dante’s ad message: how to roll in a city where it seems the law somehow treats minorities unfairly. De Blasio merely repackaged it live, raw, and uncut. It was the message that won him a majority of the votes and the mayoralty.

But it hit a raw nerve with police unions. They took de Blasio’s personal narrative and distorted it as an attack on police—a “broad brush” that, in the words of Patrolmen’s Benevolent Association president Patrick Lynch, “laid on the shoulders” of the NYPD the weight of a history of racism.

Of course, de Blasio’s remarks did none of that. He was speaking to his constituents—the same New Yorkers who identified with Dante and are still grappling with the legacy of stop-and-frisk, “broken windows” policing, and a non-indictment that, even to police supporters, seemed unwarranted. That’s what political actors do in times of crisis.

Lynch missed out on all of this, or at least pretended to miss out on it; he’s also a political actor. The big difference is that he’s not beholden to the Constitution or the interests of the public, but to his own and those of the officers he represents. To Lynch, any crisis is an opportunity—to score points, to secure a contract, to win reelection. He’s as much a politician and a public-relations expert as anything else.

And because he’s those two things, Lynch won’t say if he was the one behind a group of rank-and-file officers who turned their backs on de Blasio at officer Rafael Ramos’ funeral. But his specter remains. And it seems his campaign is working: the NYPD appears to have staged a quasi-walkout, refusing to keep law and order “unless absolutely necessary,” whatever that means.

At this juncture, the only question left for New York City as it heads into 2015—and by extension, America—is whether this is the caliber of men and women it wants enforcing its laws. Because police took an oath to defend the Constitution and to serve and protect people like Dante. And voters gave Bill de Blasio a clear mandate to do just that.

If police find democracy so inconvenient that it’s worth turning their backs on it, they’ve renounced their oath. They have no business bearing an arm and a shield given to them by the people.

Civil Rights, Criminal Justice, New York

SNL on pot: Off the mark

Thanks to Saturday Night Live, now everyone is up on New York City’s new marijuana policy. If you missed it, here’s the clip.

Now that was funny.

And legally, it was correct: From now on, merely possessing less than 25 grams of weed in public won’t get you arrested. But it will get you a summons, and you’ll have to take a trip to court and pay a fine.

The last part of the video is also correct: Smoking it in public will land you in lockup.

Treating smoking differently probably makes sense from a public-policy perspective; New York City likely has an interest in keeping the air unobstructed and family-friendly for tourists and visitors.

But there’s a fundamental flaw with the video—a detail that, it turns out, is also a key problem with the new pot policy as a whole: Arrests for possession of small amounts of marijuana is chiefly an issue affecting blacks and Latinos, not well-off New Yorkers residing in gentrified areas of Brooklyn.

In the SNL clip, nearly all of the residents awakening to the “new day” of marijuana policing are affluent, light-skinned men and women residing in beautiful, late-19th-century brownstones. The neighborhood looks a lot like Park Slope or Prospect Heights.

That’s a fiction because that’s not the kind of crowd marijuana enforcement has hit hardest. A report issued by the Drug Policy Alliance last month showed that 86 percent of arrestees for pot between January and August—the Bill de Blasio era—are black and Latino. The rate of arrests for whites in the same period was only 10 percent.

The kicker, though, is that the vast majority of arrestees weren’t flaunting the pot in public; they either had it tucked in their pockets or stashed in their cars or belongings. All of this was legal, even before the new mayor took office.

But because of stop-and-frisk and “clean halls,” which subjected hundreds of thousands of young people of color in poorer neighborhoods to unjustified detentions and patdowns, the pot—like magic—appeared in plain view. And once visible to police, it suddenly became a criminal offense.

This, of course, carried a bevy of consequences: a criminal record, difficulty obtaining employment, loss of public benefits and housing, and no more financial aid to pay for school. None of this had an impact on more affluent white kids, even the unlucky few who did get caught.

Which is why the shift to a summons for possessing marijuana is not necessarily better for minority youth. It’s not better because even paying a fine or missing a day’s work can have untold effects. And worse, who’s to say that the NYPD won’t continue targeting young men of color.

A class-action lawsuit pending in federal court in New York contends exactly that: that police issued in excess of 700,000 summonses without any kind of probable cause, just for the sake of meeting quotas. If a judge rules in the class’s favor, there’ll be more reason to doubt the good intentions behind issuing summons for mere pot possession. As it stands, the summons system is a mess.

With so many lingering questions about the new policy, perhaps it’s time New York underwent true marijuana reform, including fairer policing, a more streamlined summons system, and—why not—decriminalization once and for all.

Until then, New Yorkers of color will have little reason to laugh at a dreadlocked Woody Harrelson carrying a bong in public.

Civil Rights

Ferguson probe: The next best thing

Less than a month since the shooting death of 18-year-old Michael Brown, the Department of Justice made official the launch of a federal investigation of the Ferguson Police Department.

That’s the hard news.

Now read it again: A major civil-rights investigation. Launched in less than a month. In Ferguson.

Many predicted DOJ would launch the probe—Attorney General Eric Holder doesn’t just visit small midwestern cities for no reason. But in the larger scheme of eradicating abusive policing, the move is more symbolic than anything else.

It is symbolic because Ferguson is tiny. The small St. Louis suburb, population 21,000, is now in the same league as Detroit, Seattle, Portland, New Orleans, Newark, and the island of Puerto Rico as hotbeds of unconstitutional police practices. DOJ has investigated and issued scathing reports on all of them.

That DOJ would choose to use its power under the Violent Crime Control and Law Enforcement Act of 1994—which Congress passed in the wake of the attack on Rodney King by Los Angeles police—means Ferguson is now branded. But it’s mostly a formality.

The “pattern-and-practice” probe usually takes years. Compliance with its recommendations and consent agreements, if any, also takes a long time. There’s also the likelihood, given the modest size of the Ferguson force, that no pattern or practice of discrimination will be found. Ferguson is no Detroit.

But more importantly, the civil-rights law DOJ will be enforcing—it turns 20 this month—is not a criminal statute, but an enforcement provision; it rarely leads to an actual lawsuit in federal court, despite court involvement to oversee compliance.

In practice, that means no Ferguson officers will go to jail. And it means no money damages will be paid to victims of abusive policing. Brown’s family will have to pursue its own civil-rights lawsuit against the city, if it chooses to go that route.

What may come of the probe is more sensible and respectful policing—guidelines for best practices. DOJ reports are painstakingly thorough in their recommendations. The federal government may reach a consent decree with Ferguson, and that could go a long way. The city already announced that its officers will be wearing body cameras. All silver linings.

But is this what Ferguson and the other communities it represents are looking for?

That’s a broader question that goes beyond a federal probe. The DOJ move, if anything, only partly addresses the larger discontent that Ferguson residents experience—the criminalization of poverty, the lack of political representation, the “history of mistrust” between Ferguson and law enforcement that Holder underscored.

Viewed through a cynical lens, the DOJ probe may even be an implicit recognition that the government, for all its power and resources, is powerless to indict officer Darren Wilson. The legal hurdle to bring charges against Wilson is so high, announcing the investigation almost seems like the next best thing: It preempts the news that Wilson can’t and won’t be indicted for civil-rights violations.

Nobody knows where that separate investigation stands, but no charges for Wilson is news no one in Ferguson wants to hear; Los Angeles didn’t want to hear that the officers who brutalized Rodney King were acquitted.

It will take a true change in dynamics between police and the policed so that Ferguson never happens again. Twenty years of federal investigations have shown that true reform runs deeper than a long to-do list for unruly law enforcement.

Civil Rights, Other Legal Battles

Things the law can do

On Sept. 4, 2014, the law accomplished six things:

1) It authorized a federal investigation of a police department that has come under fire for discriminatory and unconstitutional policing.

2) It convicted a former state governor of corruption and other wrongdoing committed while in office.

3) It ruled that an oil corporation was “grossly negligent” in causing an environmental disaster, subjecting it to billions in fines.

4) It declared unconstitutional same-sex marriage bans in two Midwest states.

5) It upheld the validity of federal subsidies for access to healthcare for millions of poor people and others who can’t otherwise afford it.

6) It protected the right to vote of hundreds of thousands of minorities whose access to the ballot was restricted for politically driven reasons.

Sometimes the law can be perverse, even grossly unfair. Today, the law did the world some good.

Civil Rights, Latinos and the Law

Latinos and police: It’s complicated

A micro-survey conducted by Pew in the wake of the protests in Ferguson, Mo., revealed Latinos really like the police. Sort of.

It was a “confidence” survey, meaning all the questions were framed in terms of participants’ trust in the ability of police to do their job. Latinos came in squarely in between blacks and whites in all the questions.

For example, where whites really trust police to not use excessive force on suspects—a whopping 74 percent—blacks’ confidence was only at 36 percent. Latinos were in the middle at 45 percent.

Or where blacks and whites were on opposites ends of the spectrum in terms of whether police treat races equally—with blacks’ confidence below the 40 percent mark and whites hovering above the 70s—Latinos’ trust was at near 50 percent.

What does this all mean? Probably not much, given the small sample size of Hispanics surveyed and the significant margin of error. What’s more, this was a national survey; the figures would likely shift if the survey were conducted in, say, an area affected by discriminatory policing.

Last year, shortly after a Manhattan federal judge found the NYPD’s application of stop-and-frisk unconstitutional, the Vera Institute of Justice released a study on youth perceptions of police. The numbers were startling: 88 percent of New York youth surveyed perceived that their neighborhoods did not trust the police.

The findings seem to lead to a truism: The more police target young blacks and Latinos, the more their distrust grows. The more unsafe they feel. The least likely they are to call the police to report crime. Youth interviewed by Vera reported all of the above perceptions.

In the case of Latinos, surveys like Pew’s also obscure certain realities, like the fact that Latinos can be apprehensive of police encounters—not only for fear of stop-and-frisk, but because of potential immigration consequences.

For an undocumented Latino, for example, something as routine as a traffic stop, even as a passenger, can prove terrifying because it may lead to deportation. Stories of factory raids, harassment of day laborers, and racial profiling on account of ethnicity are all part and parcel of the immigrant experience. All of them can be more telling indicators of how Latinos view police.

There’s also the Secure Communities and the 287(g) programs, two controversial Department of Homeland Security-led initiatives partnering local police with immigration authorities. Criticized for sweeping too broadly and decried by immigrant groups for tearing up families, both have contributed to the perception that law enforcement and immigration enforcement are one and the same.

The U.S. Supreme Court has also contributed to the trust problems. In 2012, the court allowed Arizona to keep a law on its books permitting state officials to verify the immigration status of people suspected of unlawful presence in the country. The court called the law constitutional “on its face”—that is, it did not single out Latinos explicitly, and thus let it stand.

But the reality of this “show-me-your-papers” law—other states have passed copycat provisions—is that, on the ground, anyone who looked Latino was targetedEven American citizens. Even school kids.

Perhaps a more interesting question for a future Pew inquiry would be to ask how many times a participant has had an unsavory police encounter. Or if prior police stops have resulted in merely a warning, a summons, or something worse. Or how participants feel when they pass a patrol car on the street. Or if they have a family member or know someone who is involved in the criminal justice system or in immigration proceedings.

Those are better questions because personal experience often colors one’s views of law enforcement and their work. And when such work is viewed as something other than serving and protecting, it is likely the served and protected will feel anything but.

Civil Rights

Death under color of law

One thing is to kill a man and get convicted of murder. Quite another is to kill a man and get convicted of violating his civil rights.

The latter, it turns out, can be a lot harder.

Since the shooting death of 18-year-old Michael Brown in Ferguson, Mo., the Department of Justice and the FBI have been investigating the events surrounding his death. A big question is whether officer Darren Wilson can be federally prosecuted.

In this case, the federal government can’t pursue a murder conviction; that’s the province of Missouri authorities under state law. What DOJ can do is seek to indict Wilson under 18 U.S.C. § 242, the federal criminal civil-rights statute.

Therein lies the problem.

Section 242 is not just any criminal statute. It is a Reconstruction Era law that sought to vindicate rights enshrined in the Fourteenth Amendment—an “antidiscrimination measure” designed to protect the newly acquired rights of blacks.

As history would have it, the U.S. Supreme Court was once called to interpret the statute in Screws v. United States. The case centered around the death of Robert Hall, a black man who was beaten to death after officers claimed he had reached for a gun.

Does that sound familiar?

The court called the case “a shocking and revolting episode in law enforcement,” but more importantly, it upheld the statute from attacks that it was unconstitutional. It has been a valuable prosecutorial tool for the federal government since.

But as effective as Section 242 has been, as written, it sets an extremely high bar for conviction. The law requires a federal prosecutor to prove, beyond a reasonable doubt, that a government actor “willfully” deprived someone of his or her civil rights. Depending on the gravity of the deprivation, the statute allows up to life imprisonment or even the death penalty.

All of this looks good on paper, but the hardest part is proving that the deprivation of civil rights—or in Brown’s case, that his life was taken without due process—was undertaken “willfully.”

Proving willfulness is difficult because DOJ would need enough evidence to essentially get inside Wilson’s mind—to show that he had the criminal intent to deprive Brown of his constitutional right to life. In criminal-law speak, this is the mens rea of Section 242.

Of all the elements of a criminal offense, the mens rea is often the hardest to prove to a jury. How do you get into someone’s mind?

The easiest way is with a confession. If Wilson had confided in someone that he harbors animus for black teenagers and DOJ somehow got a hold of this information, then the department could possibly use this confession against him.

But even that’s not enough. Ideally, DOJ would need evidence that Wilson specifically targeted Brown because he was black. That’s a huge piece of evidence, and one DOJ is unlikely to uncover, if it uncovers it at all.

This explains reports that the FBI has interviewed “hundreds” of witnesses, and Attorney General Eric Holder’s statement that the investigation “will take time to complete.” It’s very likely the bulk of the government’s case will center on Wilson’s mind at the time of the shooting. And making that case will be hard.

When Section 242 and similar statutes were enacted in the mid-1800s, Congress’ intent was to go after egregious abuses of power on account of race—lynchings, mob killings, sham trials, unlawful arrests. Whether the law covers Wilson’s conduct remains to be seen.