Why Not?

Democrats think this woman, who is trying to gain weight and become the largest woman ever, deserves free health care funded by taxpayers. She should be the poster child for the bill currently before Congress.

The D.C. Way

Two news stories have dominated local Washington, D.C. news market the past couple days. First of course is Blizzard ‘09, which dumped two feet of snow on a city that doesn’t know how to handle it. Frankly, I don’t expect to see the office again until after Christmas.

Remember “the Chicago way” from The Untouchables? He pulls a knife, you pull a gun, etc… The second, related, big story is a local cop getting in hot water for drawing his gun on a snowball fight. A flash mob of snowed-in D.C. residents staged a “fun and games” snowball fight Saturday afternoon, pelting each other with snowballs and helping passing motorists. A plainclothes D.C. detective took exception to having his SUV hit, so he exited his vehicle and drew his gun on the crowd, a classic bully move and serious violation of proper weapons use. The video (which I stole from Zach’s Facebook) is below. NSFW language throughout:

You can hear the crowd reacting nervously to the weapon, then they steeled their resolve and chanted (my favorite part) “you don’t bring a gun to a snowball fight!” Uniformed officers responded to a call about a man with a gun and had their weapons ready before they realized he was one of their own. The detective never relents though. If you watch the video to the end, you can see him push one person in the crowd and try to drag another away to jail.

I have much respect for the uniformed officer in the video for handling the situation well, and give props to the crowd for standing up to a bully. The detective, who D.C. police have not fully identified, has been assigned to desk duty pending investigation.

Update: A first person account from the popular local DCist blog.

The Practice of Law

I recently left the private practice of law to go “in house” with an energy holding company. While a number of factors influenced this decision, Justice Scalia touches upon one quite well when he was asked to comment on whether the quality of advocacy before the U.S. Supreme Court was too low:

“I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

“I mean there’d be a … public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

“I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table, and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.”

Hat tip to The Volokh Conspiracy.

“Constitutionality” and the Real Constitution

Randy Barnett has a nice discussion at the Volokh Conspiracy on whether a Congressional mandate to buy private insurance is “constitutional”.

Bringing Safety to Salina

Sheriff Deputy Sean Andrews: I pulled you over for talking on the phone.

Audra Harmon: I can prove I wasn’t.

Sheriff Deputy Sean Andrews: I mean I pulled you over for speeding.

Audra Harmon: Can I see the radar?

Sheriff Deputy Sean Andrews: That’s a tasering. Zap!! (with video goodness)

In a court of law, without the benefit of video, Deputy Andrews would be given the benefit of the doubt, and in all likelihood Ms. Harmon would have been charged and convicted of crimes.

Gatesgate Follow-up

There have been several replies to my post titled “‘Stupid’ Disorderly Conduct Laws” which are worth highlighting here. Reason editor Jacob Sollum offers his take here, though fellow Reason editor and ITA friend Radley Balko arguably offers the best and most comprehensive take here. Meanwhile ITA friends Ed Brayton and Jason Kuznicki chime in with support, though Joe Carter offers a counter-view here. As expected the Volokh Conspiracy has provided the best summary of the “disorderly conduct” law in Massachusetts.

‘Stupid’ Disorderly Conduct Laws

Matt Drudge’s latest fascination concerns a dust-up between the Cambridge Police Department and one of Harvard’s preeminent black scholars, Henry Louis Gates, after he was seen forcing his way into his own house. A neighbor notified police of a possible break-in, and after being questioned by police Gates got angry and was eventually arrested for disorderly conduct. What’s important to Matt Drudge becomes important to the rest of the media, and thus a major national news story was born. You can find plenty of summaries of the event’s particulars elsewhere, if you’re not familiar with it already, but I especially recommend reading the official police report of the incident.

At a press conference on Wednesday evening President Obama was asked to respond; here’s video of his response and here’s the transcribed pertinent part:

I don’t know all the facts. What’s been reported, though, is that the guy forgot his keys. He jimmied his way to get into the house. There was a report called into the police station that there might be a burglary taking place. So far so good. Right? I mean, if I was trying to jigger in — well, I guess this is my house now so it probably wouldn’t happen. Let’s say my old house in Chicago. Here I’d get shot. But so far so good. They’re reporting, the police are doing what they should. There’s a call. They go investigate what happens. My understanding is at that point Professor Gates is already in his house. The police officer comes in. I’m sure there’s some exchange of words but my understanding is that Professor Gates then shows his I.D. to show that this is his house. And at that point he gets arrested for disorderly conduct, charges which are later dropped. Now, I don’t know, not having been there and not seeing all the facts what role race played in that, but I think it’s fair to say, number one, any of us would be pretty angry. Number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home and, number three, what I think we know separate and apart from this incident is that there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. And that’s just a fact.

Unfortunately for Obama, the press headlines often simply read something like this: “Obama says police acted ’stupidly’”. But the reality is that Obama supported the officer’s need to verify Gates’ identity and residence. What Obama considered ’stupid’ was the actual arrest for disorderly conduct, and I couldn’t agree with him more.

Before I go on it’s important to point out that Professor Gates repeatedly leveled charges of racism throughout the incident, often in a demeaning and disrespectful way. Though Prof. Gates may be right that he was investigated and/or arrested for his race, nothing in the evidence would suggest that to be true. Indeed, given the circumstances and the police officer’s outstanding record and history, I’m persuaded that race had absolutely nothing to do with the police’s actions. The police appear to have had every right – and indeed every responsibility – to investigate the matter and confirm Gates’ identity.

Nevertheless, there remains an unfortunate arrest for “disorderly conduct,” and arrests of this nature are far too common. Massachusetts defines the crime as fighting or threatening, violent or tumultuous behavior, or creating a hazardous or physically offensive condition for no legitimate purpose other than to cause public annoyance or alarm.

This sort of definition is relatively similar to that found in most states, and in almost every instance it is fraught with vagaries, giving far too much discretion to police officers. In short, “disorderly conduct” can easily become a euphemism for whatever a particular police officer doesn’t like. That kind of environment runs counter to fundamental ideals of the American system.

To account for some of these concerns most states carve out expressive activity from being considered disorderly conduct, and if it is political expressions they are particularly protected. In Indiana (where I practice law), expressive activity is political if its aim is to comment on governmental action, including criticism of an official acting under color of law.

But this is a small consolation. First, expressing a defense of your conduct is generally not political. Second, as a recent Indiana Appeals Court noted, “Even if one is engaging in protected political speech, this ‘does not obviate one’s responsibility to act in a civilly responsible manner.’” In other words, the government has a right to ensure you behave nicely, just as your mommy or daddy or nanny once ensured when you were younger. If you must comment in defense of your actions, don’t you dare do so with a raised or angry voice.

All of which brings us back to the Cambridge dust-up. Sgt. Crowley was understandably carrying out his duty to investigate the report, and from the quotes attributed to Gates, the professor was unfair in his comments to an officer doing a good job. But being rude, unfair, or disrespectful should not be illegal, and that’s essentially the effect of most disorderly conduct laws. Our American society increasingly hands more responsibility and control to the great Nanny State. Heightened arrests under disorderly conduct laws enable this frightening progression.

President Obama would have been wise to avoid this controversy, particularly since he admits to lacking all of the facts. But ultimately I cannot disagree with the thrust of his statement. Arresting Prof. Gates under the circumstances was stupid and Americans in every state would do well to scale back the reach of disorderly conduct laws.

Update: Reason weighs in with substantially similar views, and the Legal Blog Watch provides a great legal analysis concluding the arrest was unwarranted.

Wrong Door Raids

As if on cue, just a few days after Balko’s interview series, the Indianapolis Metropolitan Police Department executed a wrong-door raid, another topic Balko frequently blogs about.

Marye Minton, 70, and her 72-year-old husband were awoken early Thursday to officers banging on the door of their home…

Marye Minton said she is upset that the officers came inside and ordered her husband, who is in poor health, onto the ground.

“They said to him, ‘Get on the floor,’ like that, and see my husband’s had four strokes, and he can’t whoop anybody, he can’t do anything,” she said. “I’m very mad and I don’t want it to happen to another citizen.”

Officers were trying to serve a warrant for a man wanted on drug charges. The address listed on the paperwork was 4042. The Minton’s home is 4048, with both house numbers clearly marked.

But Major Mark Robinett of the Marion County Sheriff’s Department, who is in charge of warrant sweeps, said he was told that officers had a difficult time reading the addresses because of overcast skies.

The explanation from Major Robinett would be hilarious if it weren’t so outrageous. Typically what happens in the wake of these incidents is a complete lack of apology, a statement by the police that all procedures were followed appropriately, a congratulations to the officers for doing so, and absolutely no suggestion that those procedures be reviewed. Robinett’s piss-poor excuse for why the mistake happened is damning evidence of just how lightly law enforcement officers are allowed to view these kinds of wrong door raids, free from any accountability or circumspection.

As Balko endlessly points out, law enforcement officers are, on the whole, honest and hard-working people. But even good people will make bad decisions given the right incentives, and our entire policy framework for criminal justice encourages sloppy, violent, and uncritical police work. What officer will take the time to work against the system when even his commander feels bold enough to make the flimsiest, most asinine excuse to the media?

Criminal Injustice System

As many civil libertarians have been keen to note, there are serious systemic problems with the criminal justice system in America. One of the leading voices on this issue is Radley Balko, an ITA favourite. The Atlantic Monthly’s Conor Friedersdorf recently interviewed him for their special Ideas Report. Each of the five segments touches on different aspects of our legal system, and I encourage you to read each of them in full. However, what Balko has to say is just too important not to repeat, so here are some salient excerpts.

Part I: The General Situation

I think the main problem is too much attention to numbers and statistics, which I think has been largely driven by the 40 years of “get tough on crime” rhetoric and slogan-based crime policy we’ve been getting from politicians. Everyone wants to boast about declines in crime statistics. But the focus on raw numbers has created some perverse incentives, from beat cops through mayors and police chiefs . . .

Prosecutors get re-elected or move on to higher office when they put lots of people in prison. They rarely get credit for choosing not to prosecute someone in the interest of justice. That’s not to say it doesn’t happen. But there’s rarely any professional reward for doing so. In fact, they usually get flack for it, particularly in high-profile cases. Prosecutors are also rarely sanctioned for bending or breaking the rules. They’re virtually immune from lawsuits, even if they convict the wrong person, and even if prosecutorial misconduct was a major factor in the conviction. So you have all this pressure on winning convictions, with little sanction for going too far.

Federal criminal justice grants, asset forfeiture, promotions, higher office — all of these rewards are based on arrests and convictions, not necessarily a fair administration of justice.

Part II: The Militarization of Law Enforcement

We’re dressing police officers in military attire, giving them military-grade weaponry, training them in military tactics, then sending them into American cities and neighborhoods and telling them they’re fighting a war–be it the war on drugs, or a more generic war on crime. That’s not a healthy development for a free society. People who live in high-crime areas are still American citizens with rights. They aren’t the foreign residents of an enemy nation.

Part III: No-Knock Raids

Police can now enter your home unannounced if they believe that knocking would endanger their safety, or if they believe it would give you time to destroy evidence, which in most cases means the time you would need to flush your drug stash down the toilet.

The problem with no-knock raids is that they’re extremely volatile, confrontational, and leave very little margin for error. They might make sense when you’re trying to defuse an already-violent situation — say to apprehend a dangerous escaped fugitive, or to end a hostage standoff. But most no-knocks today are conducted for the routine service of drug warrants. So they aren’t defusing an already violent situation, they’re creating violence where the was none before.

Part IV: Forensic Evidence

Juries tend to put a great deal of faith in witnesses that judges certify as experts. The problem is that judges haven’t adequately performed their duty as gatekeeper, both at keeping frauds out of the courtroom and preventing legitimate experts from testifying beyond their expertise or exaggerating the certainty of their conclusions.

Part V: Solutions

1. Changing the federal government’s role in the criminal justice system.
2. Ensure that scientific evidence in the courtroom is actually scientific.
3. Community policing.
4. More liability for police and prosecutors who misbehave.
5. End the drug war.

Sadly, everything in public choice theory suggests that these solutions will not come to pass. Not even a high-profile example of misconduct like the Duke LaCrosse prosecutions could muster the public sentiment necessary for such a sea change. And with the nomination of Sotomayor, it doesn’t look as if we will have any Supreme Court decisions rediscovering the lost portions of the Fourth and Fifth Amendments anytime soon. What a glum slice of American public policy.

Another Lesson to Learn

In D.C.’s conservative commuter paper last week (yes, we have two free commuter papers), the CATO Institute’s Gene Healy wrote about the lessons for the right in the wake of the George Tiller murder and the Holocaust Museum attack. As they did in the 1990s, the left is trying to link acts of domestic terrorism to talk radio conservatism. The overheated rhetoric of populist conservatism on talk radio (and recently Fox News) pushes dangerously unstable people over the edge, they say.

But Healy hopes these recent acts of violence teach a different lesson to the GOP: civil libertarianism. In the 1990s, Bill Clinton pushed for much of the same expansion of executive power to stop domestic terror that Bush and Cheney told us were imperative to stop foreign terror. In the 1990s, Republicans wisely pushed back, afraid of becoming targets. Not so much in the 2000s, where being concerned about executive authority made you “soft on terror” (we should not forget last year’s “macho primary”). Let’s hope, in the face of another potential left wing plan to demonize the right, Republicans rediscover the virtues of civil liberties.