The days of the peace officer are long gone, replaced by the militarized police warrior wearing uniforms making them indistinguishable from military personnel. Once something is defined as a “war” everyone becomes a “warrior.” Balko offers solutions ranging from ending the war on drugs, to halting mission creep so agencies such as the Department of Education and the FDA don’t have their own SWAT teams, to enacting transparency requirements so that all raids are reported and statistics kept, to community policing, and finally to one of the toughest solutions: changing police culture.
Police culture has gone from knocking on someone’s door to ask him to come to the station house, to knocking on a door to drag him to the station house, to a full SWAT raid on a home.
Two quotes from the HBO television series The Wire apply quite appropriately to this situation:
“This drug thing, this ain’t police work. Soldiering and police, they ain’t the same thing.”
“You call something a war and pretty soon everyone’s gonna’ be running around acting like warriors. They’re gonna’ be running around on a damn crusade, storming corners, slapping on cuffs and racking up body counts. And when you’re at war you need an enemy. And pretty soon damn near everybody on every corner’s your enemy. And soon the neighborhood you’re supposed to be policing, that’s just occupied territory.”
Detective John J. Baeza, NYPD (ret.), posted review of Radley Balko’s Rise of the Warrior Cop at Amazon.com, 2013-07-01
July 3, 2013
QotD: Militarization of the police
The most blatant display of “one law for the rich, one law for the poor”
Reason‘s Mike Riggs points out the most amazing part of the Aaron Hernandez case:
Let me paint the scene for you: It’s broad daylight out. A group of six Massachusetts State Police officers in suits and ties approach Hernandez’s North Attleborough mansion from the front. Three of them walk up the steps of his porch, and — with their guns holstered — knock on the door. After roughly 50 seconds of knocking and doorbell-ringing, a shirtless Hernandez opens the door and lets six suited staties, plus a cop in uniform, come inside. As one officer starts to cuff Hernandez right there in the foyer, another officer closes the door, presumably to provide Hernandez with some privacy. A few seconds later, Hernandez — now with a tee-shirt pulled over his handcuffed arms and torso — is led outside to a cop car, where officers gently lower him into the back seat and put on his seatbelt.
No battering ram. No flashbangs. No paramilitary gear. I was shocked.
Compare and contrast this arrest — for homicide — with this arrest first reported by Radley Balko:
In 2011, a SWAT team conducted a midnight raid on Stamps’ home in Framingham looking for a couple of small-time crack dealers. In the chaos and cloud of adrenaline that results from knocking down someone’s door and flooding his home with men dressed like soldiers, an officer shot Stamps in the neck, killing him. The city’s chief of police would later say that Stamps was “tragically and fatally struck by a bullet which was discharged from a SWAT officer’s rifle”; as if guns fire themselves.
When police eventually found who they were looking for — not Stamps, but his stepson and the stepson’s cousin — neither of them was armed. Nor did police find any firearms in the house.
It almost sounds backwards, doesn’t it? Killing an unarmed senior citizen in the process of arresting two unarmed kids holding a couple hundred bucks and some crack, while sending guys in their Sunday best to bring in a man allegedly involved in not just one violent, gang-related murder, but three?
[. . .]
This trend isn’t limited to Massachusetts. Across the country, poor people experience an entirely different criminal justice system — from arrest to prosecution — than the wealthy. Oftentimes, this means blacks are treated more harshly than whites and that the people who sell illegal drugs for money are treated differently than bankers who launder that money.
While football fans are free to care about whatever they want, the most shocking aspect of the Hernandez case isn’t that an incredible athlete killed anywhere from one to three people, it’s that the location of his home and the name of his employer bought him courtesies that poor, nonviolent offenders committing consensual crimes seldom experience.
Update: The Hernandez case gets even more weird:
Investigators in the Aaron Hernandez murder case were prepared to interview a Bristol man who was killed early Sunday when he crashed a car registered to his father-in-law, the former New England Patriot tight end’s uncle.
Multiple law enforcement sources said Massachusetts investigators were interested in speaking with Thaddeus Singleton III, 33, because he was associated with Hernandez. Singleton, who records show has served time in state prisons on various drug-related convictions dating to the mid-1990s, was killed when the car he was driving shot 100 feet through the air and hit the Farmington Country Club 6 feet off the ground.
Maybe this is something new in Nissan automotive technology, but it’s a rare vehicle that can shoot 100 feet through the air and impact a building six feet up? Impressive.
June 30, 2013
Steps towards a police state
Rick Falkvinge thinks that the United States is at the point of no return as far as civil liberties are concerned:
While this may seem a trivial observation, it is critical in this context: people tend to be focused on what affects them in the here and now. While some people can connect the dots and follow the line with their eyes into the future, the vast majority of people don’t bother with something that doesn’t affect them directly, personally, and in the present. In 1932, families were still skating in the park in Berlin on weekends. All that nasty stuff was theoretical, rumored, and somewhere else. People who look ahead and try to sound the alarm bell tend to be regarded as tinfoil hats, eccentric, and nuts.
One of the first things that happens past the point of no return into a police state is the persecution of reporters. As a society is closing down, those persecuted first are those with the audience and an interest in reporting the worrying trends that society seems to be closing. This is the proverbial canary in the coal mine. This is the alarm bell. Once that happens, get out of the mine.
An event horizon is a term from astrophysics. It is the edge of a black hole – so the event horizon appears like a black sphere, if you like. Nothing, not even light, can escape from within the event horizon – hence the term black hole. But if you were traveling through space, in direction of the black hole (which may be as large as an entire solar system), then you would notice absolutely nothing as you crossed the event horizon. You would pass a point of no return, and register not a single thing while doing so. The analogy is depressingly apt.
I’ve written before that I believe that the U.S. is lost to encroaching totalitarianism, which it will likely endure for a number of years before it collapses under its own weight (as all empires do sooner or later). With Edward Snowden being hunted relentlessly across the globe for leaking evidence of systematic abuse of power, Glenn Greenwald – who published Snowden’s leaks – was recently criticized for aiding and abetting the leak itself. This is a key choice of words, for aiding and abetting a crime is itself a crime – the wording suggested that the reporter who published evidence of abuse of power is himself a criminal.
June 29, 2013
Jeff Jarvis calls for private encryption
In the Guardian, Jeff Jarvis makes the case for internet communications to be protected by encryption:
Assuring the security of private communications regardless of platform — email, VOIP, direct message — should be a top priority of the internet industry in the aftermath of Edward Snowden’s revelations that US and UK governments are tapping into the net’s traffic.
The industry needs to at least come together to offer encryption for private communications as protection against government surveillance.
Guarantee of private communications should be a matter of law already. But, of course, it is not. In the US, only our first-class physical mail is protected from government surveillance without a warrant. In the UK, it was a case of opened mail that led to the closing of the Secret Department of the Post Office. As a matter of principle, the protection afforded our physical mail should extend to any private communication using any means. Just because the authors of the Fourth Amendment could not anticipate the internet and email, let alone Facebook, that should not grant government spies a loophole from the founders’ intent.
That protection could come from Congress, but it won’t. It could come from the courts, but it hasn’t.
I argued in my book Public Parts that government may try to portray itself as the protector of our privacy, but it is instead the most dangerous enemy of privacy, for it can gather our information without our knowledge and consent — that is the lesson of Snowden’s leaks — and has the power to use it against us.
June 28, 2013
June 27, 2013
Section 13 repealed
In all the news from the US yesterday, this little civil liberties tidbit got pushed off the front page:
As I write this I am still only being updated by text message on the proceedings in the Senate chamber but I am told Bill C-304 has passed third reading and will receive Royal Assent tonight making it law.
What does this bill do?
There are a number of amendments to the act that help limit abuse but the main one is this:
2. Section 13 of the Act is repealed.
To put it bluntly, the means you can’t take someone through the federal human rights apparatus over hurt feelings via a blog post or a Facebook comment.
Now the bill is passed and will become law but like many acts of Parliament it will not come into force for a year.
Still after a long hard battle to restore free speech in Canada, this is a victory.
June 26, 2013
Buh-bye, DOMA
I was away from my computer for about an hour this morning and when I came back online, my Twitter feed had exploded with news and opinion links about the US Supreme Court striking down the Defence of Marriage Act. While I’m delighted with the result (check my posts tagged Same Sex Marriage if you’re curious), it’s interesting to watch the reactions on all sides of the issue.
Glad we got the @boingboing RainbowJusticeMindControlLaser™ working today. We tried aiming it at #SCOTUS yesterday, too, but sadly missed.
— Boing Boing (@BoingBoing) June 26, 2013
Evil Koch brothers defeat the amazing Bill Clinton, RE: #DOMA. #HeadsExplode
— Corie Whalen (@CorieWhalen) June 26, 2013
90 minutes into the post-DOMA era: MY HETEROSEXUAL MARRIAGE STILL STRONG. Will wait another 30 minutes to see if it sticks.
— John Scalzi (@scalzi) June 26, 2013
.@CatoInstitute is the only org that filed briefs on the winning side of #SCOTUS rulings on #VRA, affirmative action, AND #marriageequality!
— Cato Institute (@CatoInstitute) June 26, 2013
Gay men and women, today is for celebrating. Tomorrow is for the awkward conversation, followed by the acrimonious breakup.
— Craig Mazin (@clmazin) June 26, 2013
Remember when you were against it? Fun times. MT @BarackObama Today's Supreme Court rulings mark a major milestone on the road to equality.
— Jim Treacher (@jtLOL) June 26, 2013
Who DOESN'T cry at weddings!? RT @GovMikeHuckabee My thoughts on the SCOTUS ruling that determined same sex marriage is okay: "Jesus wept."
— Rachel B (@rachelbensen) June 26, 2013
June 25, 2013
Snowden’s character doesn’t matter – Snowden’s revelations matter a great deal
Gene Healy says that it doesn’t matter what you think about Edward Snowden, you should care a lot about what he’s revealed:
Here, the most disturbing aspect of the Snowden revelations is the NSA’s comprehensive, multiyear call-records database, with communication and phone-location information on millions of Americans. Especially if combined with metadata on emails, website visits and financial transactions that the agency is also amassing, that information is a potential treasure trove for political abuse — it can be used to ferret out the sort of information governments have historically used to blackmail and neutralize political opponents: who’s leaking, who’s organizing, who’s having an affair. The potential abuse of that information represents a grave threat to American liberty and privacy regardless of Snowden’s character and motivations.
In an post last week, Buzzfeed‘s Ben Smith makes the key point: “You Don’t Have to Like Edward Snowden.” Snowden, Smith argues, is “a source,” and the information sources convey is far more important than their “moral status” or the “fate of [their] eternal soul[s].”
Smith mentions Mark Felt, the FBI honcho who served as Woodward and Bernstein’s “Deep Throat” during their investigation of the Watergate burglary and cover-up. Felt, it turned out, was simply settling scores in a bureaucratic power struggle. He had no scruples against criminal violations of privacy — in 1980 he was convicted of conspiring to violate the constitutional rights of Americans through warrantless break-ins as part of the FBI’s COINTELPRO program.
It was important for Americans to know that their president was a crook. That Mark Felt was also a crook is neither here nor there. As Smith puts it, “who cares?”
Portugal’s experience with drug decriminalization
The Cato Institute sent out a Twitter update, reminding everyone about the 2009 White Paper by Glenn Greenwald on how the Portuguese drug experiment played out after 2001:
On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were “decriminalized,” not “legalized.” Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense.
While other states in the European Union have developed various forms of de facto decriminalization — whereby substances perceived to be less serious (such as cannabis) rarely lead to criminal prosecution — Portugal remains the only EU member state with a law explicitly declaring drugs to be “decriminalized.” Because more than seven years have now elapsed since enactment of Portugal’s decriminalization system, there are ample data enabling its effects to be assessed.
Notably, decriminalization has become increasingly popular in Portugal since 2001. Except for some far-right politicians, very few domestic political factions are agitating for a repeal of the 2001 law. And while there is a widespread perception that bureaucratic changes need to be made to Portugal’s decriminalization framework to make it more efficient and effective, there is no real debate about whether drugs should once again be criminalized. More significantly, none of the nightmare scenarios touted by preenactment decriminalization opponents — from rampant increases in drug usage among the young to the transformation of Lisbon into a haven for “drug tourists” — has occurred.
The political consensus in favor of decriminalization is unsurprising in light of the relevant empirical data. Those data indicate that decriminalization has had no adverse effect on drug usage rates in Portugal, which, in numerous categories, are now among the lowest in the EU, particularly when compared with states with stringent criminalization regimes. Although postdecriminalization usage rates have remained roughly the same or even decreased slightly when compared with other EU states, drug-related pathologies — such as sexually transmitted diseases and deaths due to drug usage — have decreased dramatically. Drug policy experts attribute those positive trends to the enhanced ability of the Portuguese government to offer treatment programs to its citizens — enhancements made possible, for numerous reasons, by decriminalization.
“You cannot have a functioning democratic republic when the laws are so voluminous no one can know what the law is”
I really did think they were kidding about needing to pass the law to be able to find out what was in it, but this appears to be the way US laws are made nowadays:
When a bill is amended in a sneaky manner, as this one has been, no responsible senator could just read 100 new pages. The amendments are interspersed thoughout the bill — it’s not like you could sit and read them as a unit, even if you had the time. Since the proponents are clearly trying to pull a fast one, prudence, as Senator Cruz pointed out, would dictate rereading every line of text, old and new, to search for insertions — and, indeed, news reports indicate that numerous new buy-offs and pot-sweeteners have been inserted.
But there is a larger point: no “important legislation” should be 100 pages long, much less 1,200 (or the even more mind-boggling girth of monstrosities like Obamacare). The United States Constitution is about 4,500 words long — outfits like Cato and Heritage publish it in small pamphlets that can be read in a few minutes. Nowadays, not only are the bills so gargantuan that no one could conceivably master them and predict their consequences; each page produces even more pages of regulations. They can’t even be lifted, much less digested.
You cannot have a functioning democratic republic when the laws are so voluminous no one can know what the law is. And that is especially the case when (a) the rationale for passing new laws — according to “reform” proponents like Senator Marco Rubio and Rep. Paul Ryan — is that we don’t enforce the laws currently on the books; (b) key parts of legislation consist of commitments to do what previously enacted law already commands; and (c) the president, notwithstanding his oath to take care that the laws are faithfully executed, claims the power to refrain from enforcing whatever laws he disapproves of. Washington has made a farce of the legislative process and of the once proud boast that we are ”a nation of laws not men.”
June 24, 2013
Read an excerpt from Rise of the Warrior Cop by Radley Balko
There is an excerpt from the book Rise of the Warrior Cop in the July issue of the ABA Journal:
Are cops constitutional?
In a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the U.S. Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the framers, professional police officers were unknown,” Roots writes.
The founders and their contemporaries would probably have seen even the early-19th-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history — early American statesmen like Madison, Washington and Adams were well-versed in the history of such armies in Europe, especially in ancient Rome.
If even the earliest attempts at centralized police forces would have alarmed the founders, today’s policing would have terrified them. Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.
Police departments across the country now sport armored personnel carriers designed for use on a battlefield. Some have helicopters, tanks and Humvees. They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units like the Navy SEALs or Army Rangers. National Guard helicopters now routinely swoop through rural areas in search of pot plants and, when they find something, send gun-toting troops dressed for battle rappelling down to chop and confiscate the contraband. But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops — despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.
June 23, 2013
Ecuador press law to mandate coverage of government propaganda items
Ecuador has a new law on the books that may force the media to carry government propaganda or risk prosecution:
Under Ecuador’s new Communications Law, however, journalists may have to pay far more attention to ribbon-cutting ceremonies and other government PR events. Article 18 of the law forbids the “deliberate omission of … topics of public interest.” But this wording is so vague that nearly any action by local, state, or national government official could be considered of public interest.
“Newspapers don’t have enough journalists or space to cover all these events. Radio programs don’t have enough air time,” Paúl Mena, president of the Ecuadoran Journalists’ Forum, told CPJ. “If the government starts demanding coverage, there are going to be problems.”
More conflict between the media and the Correa government seems inevitable under the Communications Law, which was approved by the National Assembly on June 14 and will go into effect next month. Not only does the law create a state watchdog entity to regulate media content, but it is filled with ambiguous language demanding that journalists provide accurate and balanced information or face civil or criminal penalties. “This is completely crazy,” Monica Almeida, an editor at the Guayaquil daily El Universo, told CPJ. “The law is designed to regulate everything we do.”
[. . .]
The 44-page law contains 119 articles. In interviews with CPJ, Ecuadoran journalists were at a loss to pick out the worst provisions since they view nearly all of them as serious violations of press freedom.
For example, under the law reporters are now required to earn a journalism degree. Rather than serving as a neutral referee, the Superintendence of Information and Communication — the government’s new watchdog agency — could be used by Correa to simply bash the press. And reporters are especially incensed by Article 26 that prohibits “media lynching.” This is defined as “the dissemination of concerted and reiterative information … with the purpose of undermining the prestige” of a person or legal entity. Media outlets found violating this provision could be ordered to issue public apologies and would be subject to criminal and civil sanctions that are not specified in the legislation.
One magazine editor in Quito, who asked to remain anonymous, said the article seems designed to thwart investigations. That’s because such in-depth reporting often requires publishing a series of stories over several days or weeks that could be construed as harassment.
June 22, 2013
Interesting – and probably inevitable – legal wrinkle for the NSA
At Outside the Beltway, Doug Mataconis links to an interesting article:
It’s only been a few weeks since we learned to true scope of the National Security Agency’s data mining of the phone records of American citizens, but already lawyers in civil and criminal cases across the country are seeing the database as a potential discovery goldmine:
The National Security Agency has spent years demanding that companies turn over their data. Now, the spy agency finds the shoe is on the other foot. A defendant in a Florida murder trial says telephone records collected by the NSA as part of its surveillance programs hold evidence that would help prove his innocence, and his lawyer has demanded that prosecutors produce those records. On Wednesday, the federal government filed a motion saying it would refuse, citing national security. But experts say the novel legal argument could encourage other lawyers to fight for access to the newly disclosed NSA surveillance database.
“What’s good for the goose is good for the gander, I guess,” said George Washington University privacy law expert Dan Solove. “In a way, it’s kind of ironic.”
Defendant Terrance Brown is accused of participating in the 2010 murder of a Brinks security truck driver. Brown maintains his innocence, and claims cellphone location records would show he wasn’t at the scene of the crime. Brown’s cellphone provider — MetroPCS — couldn’t produce those records during discovery because it had deleted the data already.
On seeing the story in the Guardian indicating that Verizon had been ordered to turn over millions of calling records to the NSA last month, Brown’s lawyer had a novel idea: Make the NSA produce the records.
[. . .]
This particular criminal case is, of course, on where the Federal Government is a party to the case as a prosecutor. As such, the Judge must weight not simply the government’s argument that the information requested is classified and thus should not be disclosed, but also the question of whether the prosecution has a duty to turn over the evidence to the Defendant. As a general rule, the prosecution must turn over any evidence that is potentially exclupatory or which tend to call some aspect of the prosecution’s theory of the case into doubt. The rules for what must be turned over vary from state to state, and the Federal Courts have their own rules, but they all generally follow the principles set down by Brady v. Maryland, which established the general rule that Defendants are entitled to be provided with exculpatory evidence that prosecution may have against them.
Of more interest, though, is the likely hood that attorneys may try to gain access to this NSA metadata in cases where the Federal Government is not involved, such as state court criminal proceedings or even civil matters such as divorces
June 21, 2013
How many laws have you broken today?
Alex Tabarrok on the changes to US criminal law over the years: No One is Innocent.
I broke the law yesterday and again today and I will probably break the law tomorrow. Don’t mistake me, I have done nothing wrong. I don’t even know what laws I have broken. Nevertheless, I am reasonably confident that I have broken some laws, rules, or regulations recently because its hard for anyone to live today without breaking the law. Doubt me? Have you ever thrown out some junk mail that came to your house but was addressed to someone else? That’s a violation of federal law punishable by up to 5 years in prison.
Harvey Silverglate argues that a typical American commits three felonies a day. I think that number is too high but it is easy to violate the law without intent or knowledge. Most crimes used to be based on the common law and ancient understandings of wrong (murder, assault, theft and so on) but today there are thousands of federal criminal laws that bear no relation to common law or common understanding.
[. . .]
If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law .
Faced with the evidence of an non-intentional crime, most prosecutors, of course, would use their discretion and not threaten imprisonment. Evidence and discretion, however, are precisely the point. Today, no one is innocent and thus our freedom is maintained only by the high cost of evidence and the prosecutor’s discretion.
