“The Right To Police Indifference”: American Citizens, Especially The Marginalized, Have No Legal Right To Police Protection
When you call 911 in an emergency, the police don’t have to respond to your call.
If someone breaks into your house or your partner threatens to hurt you, the police don’t have to respond. If you report a neighbor’s continual slashing of your tires, the cops can ignore your calls. If a cross burns in your front yard, no one from the precinct must investigate. Despite all talk of “taxpayer dollars,” your crisis is completely optional to law enforcement, even in the worst of circumstances. The public can protest and bewail this seeming governmental indifference, but no citizen is legally entitled to police protection.
Police indifference is the under-examined tragedy of the Cleveland kidnappings, in which Ariel Castro allegedly confined and raped three women for a decade in a nondescript house in a poor neighborhood. Neighbors attest to calling the police on several occasions. They recalled seeing naked girls in Castro’s yard leashed like dogs. They also saw women beating on closed windows. As long as the neighbors are relaying things accurately — and they might not be — it seems the police either made cursory glances or failed to show up at all.
But here’s the thing: According to a Supreme Court case, Castle Rock v. Gonzales, police have no legal obligation to respond to anyone’s calls, even in matters of life and death.
On June 22, 1999 in Castle Rock, Colo., Jessica Gonzales’ three daughters were abducted from her yard at 5:15 p.m. by her estranged husband, Simon. The couple had begun divorce proceedings, and Simon violated a restraining order by taking the girls outside of his specified visitation hours. Unable to locate Simon and the girls, Jessica called the local police at 7:30 p.m., 8:30 p.m., 10:10 p.m., and 12:15 a.m., following up with a visit to the station at 12:40 a.m. At 3:20 a.m., Simon appeared at the police station brandishing a gun, resulting in a fatal shootout. When the police checked his truck, they found the bodies of the three daughters in the back.
The police ignored all of Jessica’s calls and her visit to the station. Because Simon was allowed to visit the children, the police saw no need for action, even though his “visit” violated the restraining order. The police, Jessica recalled, felt that “he’s their father. It’s okay for him to be with them.” After her third call, they forbid her from calling until midnight.
Jessica’s protection order featured a mandatory arrest clause in the event Simon violated his visitation scheme. Mandatory, to a reasonable person, entails an imperative not open for interpretation. Still, the police viewed the protection order as optional.
The Supreme Court agreed, holding that Jessica had no enforceable right to protection, despite the arrest clause. Justice Antonin Scalia saw no contradiction in the police inaction, arguing that “a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.” Castle Rock’s indifference to Jessica’s pleas and dead children falls under this constitutional veil of “discretion.”
Assessing the urgency of emergency is everyday police triage. Bank robberies get priority over cats in trees, and violent behavior takes precedence over noise complaints. Threats of harm are more important to police than residential minutiae, and discretion allows the department to deploy officers effectively and efficiently.
But there is a dark side to police discretion, and it disproportionately affects disadvantaged groups. Domestic violence calls are often dismissed as private matters between lovers, and women’s problems can be viewed as hysterical theatrics by male officers. Response time in wealthier neighborhoods far outstrips those of poor communities. And notoriously, “discretion” stands as the primary justification for racial profiling.
A 1996 study on police responses to crime found that the race of the victim and offender significantly affected police responsiveness. White victims received quicker responses and better follow-up. Black victims fared much worse. Differential racial outcomes stem from discretion, which plainly means the issues police find attention-worthy. Sadly, this turns objectively illegal crimes into subjectively important options.
It’s not entirely surprising that demographics influence access to public services. What is more surprising — and shocking — is the categorical protection of clear police ignorance, which puts police departments beyond reproach. Police are generally freed of responsibility for the citizens they are supposed to protect.
For over 10 years, Amanda Berry, Gina DeJesus, and Michelle Knight were hidden in plain sight, but outside the scope of police interest. When neighbors called for help, their pleas apparently fell on deaf ears. It’s clear that citizens — especially the marginalized — have no legal right to police protection. If you are a female resident of a poor, minority community in one of the poorest cities in America, you’re on your own.
By: Kevin Noble Maillard, The Week, May 17, 2013
If corporations are people, as the Supreme Court pretends, they certainly are loudmouths, constantly telling us how great they are and spreading their names everywhere.
Amazingly, though, these corporate creatures have suddenly turned demure, insisting that they don’t want to draw any attention to themselves. That’s because, in this case, corporations are not selling, they’re buying — specifically, trying to buy public office for their pet political candidates by funneling millions of corporate dollars through such front groups as the U.S. Chamber of Commerce. In turn, the fronts use the money to air nasty attack ads that smear the opponents of the pro-corporate candidates.
Why do corporations need a middleman? Because the ads are so partisan and vicious that they would appall and anger millions of customers, employees and shareholders of the corporation. So, rather than besmirch their own names, the corporate powers have meekly retreated behind the skirts of Republican political outfits like the Chamber.
But don’t front groups have to report (at least to election authorities) who’s really behind their ads, so voters can make informed decisions? No. Thanks to the Supreme Court’s infamous Citizen United edict in 2010, such groups can now pour unlimited sums of corporate cash into elections without ever disclosing the names of their funders. This “dark money” channel has essentially established secret political campaigning in America.
That’s why shareholders and other democracy advocates are asking the Securities and Exchange Commission to rule that the corporate giants it regulates must reveal to shareholders all political donations their executives make with corporate funds. After all, the millions of dollars the executives are using to play politics don’t belong to them — it is shareholder money. And by no means do shareholders march in lockstep on which political candidates to support or oppose.
Hide and seek can be a fun game for kids, but it’s infuriating when CEOs play it in our elections. Last year, corporate interests sought to elect their candidates by hiding much of their politicking not only from company owners but also from voters. In all, $352 million in “dark money” poured into our 2012 elections, the bulk of it from corporations that covertly pumped it into secretive trade associations and such scams as “social welfare charities,” run by the likes of Karl Rove and the Koch brothers.
Since underhanded, anonymous electioneering puts a fatal curse on democracy, the SEC should at least compel corporate managers to tell their owners — i.e., the shareholders — how and on whom their money is being gambled in political races. It’s a simple reform, but — oh, lordy — what a fury it has caused among the political players.
A rare joint letter from the U.S. Chamber, Business Roundtable and National Association of Manufacturers has been sent to the CEOs of the 200 largest corporations in our country, rallying them to the barricades in a frenetic lobbying effort to stop this outbreak of honest, democratic disclosure.
House Republicans are even going to the extreme of trying to make it illegal for the SEC to let shareholders (and the voting public) know which campaigns are being backed by cash from which corporations. Hyperventilating, these powerful scaredycats claim to be intimidated by the very suggestion that they tell the people what they’re doing in public elections.
Their panic over having a little sunlight shine into their deepest bunker reveals just how destructive they intend dark money to be for our democracy. Ironically, the Supreme Court’s chief assumption in allowing unlimited corporate cash into the democratic process was that shareholders would be informed and involved, and provide public accountability for their companies’ political spending.
Even Justice Antonin Scalia, long a cheerleader for corporate politicking, is no fan of hiding it from the electorate: “Requiring people to stand up in public for their political acts fosters civic courage,” he has written, adding that a campaign “hidden from public scrutiny” is anathema to self-governance. He also deems it cowardly: “This does not resemble the Home of the Brave,” he pointedly noted.
By: Jim Hightower, The National Memo, May 8, 2013
Every time I write a column on guns, the howl arises that I am talking about a right that is enshrined in the Constitution, buddy, and I better watch myself. The howl then transmutes into an extended harangue that this right is absolute, and no libtard fascist, whether me or the Satanesque Dianne Feinstein, is going to limit the right in any way. The first soldier to charge across this rhetorical veld is followed by hundreds harrumphing their assent. The only problem is that it’s an ahistorical, afactual, and barbaric argument. No right is absolute. In fact, the Second Amendment arguably has fewer restrictions on it these days than many of the other first ten, and there is and should be no guarantee that things are going to stay that way. In fact, if we’re ever going to be serious about trying to stop this mass butchery that we endure every few months, they cannot.
Let’s begin by going down the list and reviewing various limits placed on nearly all the amendments of the Bill of Rights (I thank Doug Kendall of the Constitutional Accountability Center for helping me out here). The First Amendment, of course, guarantees the right to free speech and assembly, and to worship as one pleases. There haven’t been that many restrictions placed on the freedom to worship in the United States, although there is a steady stream of cases involving some local government or school board preventing someone from wearing religious clothing or facial hair or what have you. Sometimes a Christian school or church is denied a zoning permit; but more often it’s the freedom to worship of a minority (Muslim, Sikh, etc) that is threatened.
As for free speech, of course it is restricted. Over the past 50 or so years in a series of cases, courts have placed a number of “time, place, and manner” restrictions on free speech. To restrict speech in general, the government must meet four tests. But this is always being revised and negotiated. Here’s one restriction on the Bill of Rights that I’d wager most conservatives would happily approve of. In 1988, the HHS under Reagan promulgated rules prohibiting a family-planning professional at a clinic that received federal dollars from “promoting” (i.e. telling a woman about) abortion. This was challenged partially on free-speech grounds. In Rust v. Sullivan (1991), the Supreme Court held that these rules did not violate the clinicians’ free-speech rights. So far as I can see, this is still law. It’s just one example from many free-speech restrictions that have been imposed over the years, as you can see here.
Let’s skip the Second Amendment for now. The Third Amendment—my personal favorite—proscribes the private quartering of troops. Not so relevant to life today—in fact, the Supreme Court has apparently never considered a Third Amendment challenge. Onward.
The Fourth Amendment protects against unreasonable search and seizure, and of course there are loads of exceptions to this right, the most notable being that whenever an officer of the law has reason to think an imminently dangerous situation exists, s/he may invade a citizen’s privacy. Then there’s the question of the “exclusionary rule,” by which evidence deemed to have been improperly obtained can be excluded as evidence. Jurisprudence on this question goes back a hundred years, and this very interesting paper notes that it has been two decades since the Court upheld the application of the exclusionary rule in a search-and-seizure case. Since then, the Rehnquist and Roberts courts have ruled six times—every time for the government, i.e., limiting the constitutional protection. (Funny, isn’t it, how many of these other, non-gun limitations on the Bill of Rights are championed by conservatives?)
The Fifth Amendment most famously protects against self-incrimination. Kendall notes that there have indeed been almost no restrictions placed on this right—inside the trial courtroom. Outside the courtroom, however, limitations are rife, having to do mostly with circumstances of interrogations and confessions made within them. This amendment also provides for due process, and that means Miranda rights, and again here, we know from recent news stories that not everyone is immediately read them, and we also know that it’s conservatives who have always despised Miranda in the first place and seek to limit or overturn it today.
The Sixth Amendment provides the right to counsel and a speedy trial, and here again, our time is witness to a slow watering down of these rights by the Court’s conservative majority, as in 2009’s Montejo v. Louisiana. The Seventh Amendment guarantees the right to a trial by jury in civil cases, and this contains a blatant restriction: the Court has never “incorporated” this right to apply to states, where the majority of civil cases are tried, so most civil cases don’t include this right. And the Eighth Amendment, against cruel and unusual punishment, has been much contested with respect to issues like juvenile crime. The Ninth and Tenth Amendments don’t enumerate specific rights as such and so aren’t relevant.
Now, back to the Second Amendment. I’m sure that pro-gun extremists know very well about Scalia’s famous opinion in Heller (2008), which dramatically expanded gun rights. But even in that decision, Scalia himself said that Second Amendment protections could apply only to weapons “in common use at the time.” Chris Wallace asked Scalia in 2012 about semiautomatic weapons and extended magazines, and he said: “What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor. So yes, there are some limitations that can be imposed.”
Now I don’t trust him to rule that way as far as I could throw him, but if even Scalia is saying that, then yes, limitations are both possible and reasonable.
Imagine what conservatives would think of a group of liberals who insisted, while threatening an insurrection, on a pure and absolute interpretation of the Fourth or Sixth Amendment—and imagine how ridiculous they would look to average Americans. Hunters, sportsmen, collectors, and even defenders of their homes (misguided as they may be, according to the statistics certainly do have rights to keep and bear arms that are reasonable and should not be trampled. But the idea that any right is unrestricted is totally at odds with history, the law, and reality. And the idea that a group of Americans possesses an absolute “right” to own and keep weapons that can—and in practice do—kill numerous innocent people in seconds, destroying families and communities and tearing at the nation’s collective soul, is barbaric and psychotic. As the old saying goes: if you want to shoot an assault weapon, go enlist.
For civilians, meanwhile, we’re one Supreme Court justice away from getting some sanity and balance to interpretations of the Second Amendment, and the only thing I can’t decide is whether it would be more delicious for Barack Obama to appoint that judge or for Hillary Clinton to do it.
By: Michael Tomasky, The Daily Beast, May 5, 2013
In 1977 at a Denver hotel, Don Kates paced a conference room lecturing a small group of young scholars about the Second Amendment and tossing out ideas for law review articles. Back then, it was a pretty weird activity in pursuit of a wacky notion: that the Constitution confers an individual right to possess a firearm.
“This idea for a very long time was just laughed at,” said Nelson Lund, the Patrick Henry professor of constitutional law and the Second Amendment at George Mason University, a chair endowed by the National Rifle Association. “A lot of people thought it was preposterous and just propaganda from gun nuts.”
More than 35 years later, no one is laughing. In 2008, the Supreme Court endorsed for the first time an individual’s right to own a gun in the case of District of Columbia v. Heller. The 5 to 4 decision rendered ineffective some of the District’s strict gun-control laws. And Justice Antonin Scalia’s majority opinion echoed the work of Kates and his ideological comrades, who had pressed the argument that the Second Amendment articulates an individual right to keep and bear arms.
As the Obama administration pushes for gun-control legislation, it will have to contend with the changed legal understanding of the Second Amendment that culminated in Heller. That transformation was brought about in large part by a small band of lawyers and scholars backed by the NRA.
For more than three decades, the NRA has sponsored legal seminars, funded legal research and encouraged law review articles that advocate an individual’s right to possess guns, according to the organization’s reports. The result has been a profound shift in legal thinking on the Second Amendment. And the issue of individual gun-possession rights, once almost entirely ignored, has moved into the center of constitutional debate and study.
For proponents of stricter gun control, the NRA’s encouragement of favorable legal scholarship has been a mark of its strategic, patient advocacy.
“I think this was one of the most successful attempts to change the law and to change a legal paradigm in history,” said Carl T. Bogus, a professor at Roger Williams University School of Law in Rhode Island and the editor of “The Second Amendment in Law and History,” a collection of essays that challenges the interpretation of the individual right. “They were thinking strategically. I don’t think the NRA funds scholarship out of academic interest. I think the NRA funds something because it has a political objective.”
The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Before the Heller decision, the Supreme Court and lower courts had interpreted the language as “preserving the authority of the states to maintain militias,” according to a Congressional Research Service analysis.
“It was a settled question, and the overwhelming consensus, bordering on unanimity, was that the Second Amendment granted a collective right” enjoyed by the states, not individuals, Bogus said. Under this interpretation, the Constitution provides no right for an individual to possess a firearm.
Lund agreed that there was a consensus but said it was “based on ignorance.”
Throughout most of American history, there was little academic interest in the Second Amendment. From 1912 to 1959, only 11 law journal articles were published on the subject, all of them endorsing the prevailing opinion that it “affects citizens only in connection with citizen service in a government-organized and -regulated militia,” according to an analysis by Robert J. Spitzer, a professor of political science at the State University of New York at Cortland and the author of “The Politics of Gun Control.”
The first articles advocating an individual right appeared in the 1960s, and scholarship endorsing that view took off in the late 1970s. From 1980 to 1989, as NRA support began to be felt, 38 articles on the Second Amendment were published in academic journals, 21 of which advocated an individual right. In the following decade, 87 articles appeared, and a clear majority — 58 to 29 — took an individual-rights position, Spitzer’s analysis showed.
To Kates, the explanation for the burgeoning scholarship is obvious. “Gun control became a matter of enormous political controversy, and this focused attention on the Second Amendment,” he said in an interview.
Kates, a Yale Law graduate who describes himself as a liberal, said he began carrying a gun when he spent the summer of 1963 as a civil rights worker in eastern North Carolina.
“I never believed the nonsense that was then current that the Second Amendment had to do with states’ rights,” he said. Alarmed by calls for stricter gun control and outright bans, Kates started the seminars in the late 1970s and ran them for more than a decade with support from various groups, including the NRA and the Second Amendment Foundation, another gun rights organization.
Stephen P. Halbrook attended the Denver seminar in 1977 when he was an assistant professor of philosophy at Howard University and studying for a law degree at Georgetown. Three years later, he published his first article on the Second Amendment in the George Mason University Law Review. He went on to publish more than 20 law review articles and four books dealing with the Second Amendment, some with grants from the NRA, where he has served as an outside counsel.
Halbrook, who has a law office in Fairfax city, said the NRA started funding scholarly research. “I would think that’s important in the sense that scholars, unless you’re independently wealthy, you need to be paid for your time,” he said.
He and others noted that Bogus has received outside funding for symposia and publishing that excludes the individual-rights point of view. Bogus said he was transparent about his funding.
The NRA also began essay competitions for law students with prizes of up to $12,500, with the understanding that the winners would try to place their work in a law review.
Halbrook was one of a number of lawyers — including Kates; Dave Hardy, a legal consultant for the NRA; and David Caplan, a member of the NRA’s board of directors — who were at the forefront of this writing. They drew on their reading of colonial history, the founders’ statements and early American constitutional history to make their case for an individual right.
Hardy said most of this work was published in minor reviews, but the individual-rights argument got a big boost in 1989 when Sanford Levinson, a leading professor of constitutional law at the University of Texas at Austin, published “The Embarrassing Second Amendment” in the Yale Law Journal. He argued that the “legal consciousness of the elite bar” on the Second Amendment might be wrong. He also was sympathetic to the “insurrectionist theory” that citizens have a right to be armed so they can fight their government if it becomes tyrannical. Levinson singled out Kates’s work and cited Halbrook.
Other leading scholars followed, and advocates for the NRA’s position began to speak about a new “standard model.” In 1997, Justice Clarence Thomas acknowledged the growing mass of law review material when he wrote, “Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the ‘right to keep and bear arms’ is, as the Amendment text suggests, a personal right.”
In 2003, the NRA marked the Second Amendment’s new stature as a subject of serious study when its foundation endowed Lund’s Patrick Henry chair at George Mason University with $1 million. The law school had established a reputation as a bastion of conservative legal thought.
“What they were looking for was a means of legitimating the fact that the Second Amendment had arrived as a legitimate subject of study in constitutional law,” said Daniel D. Polsby, the dean of the George Mason University School of Law.
For advocates of an individual’s right to bear arms, the Heller decision in 2008 was a vindication. In writing the majority opinion, Scalia said, “The second amendment protects an individual right to possess a firearm, unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
He cited Kates and Halbrook.
By: Peter Finn, The Washington Post, March 13, 2013
“Racial Entitlement?”: Trust Us Says The South, Just Like The Wifebeater Who Says He Has Seen The Error Of His Ways
One day, many years ago, I was working in my college bookstore when this guy walks in wearing a T-shirt. “White Power,” it said.
I was chatting with a friend, Cathy Duncan, and what happened next was as smooth as if we had rehearsed it. All at once, she’s sitting on my lap or I’m sitting on hers — I can’t remember which — and that white girl gives this black guy a peck on the lips. In a loud voice she asks, “So, what time should I expect you home for dinner, honey?”
Mr. White Power glares malice and retreats. Cathy and I fall over laughing.
Which tells you something about how those of us who came of age in the first post-civil-rights generation tended to view racism; we saw it as something we could dissipate with a laugh, a tired old thing that had bedeviled our parents, yes, but which we were beyond. We thought racism was over.
I’ve spent much of my life since then being disabused of that naivete. Watching media empires built upon appeals to racial resentment, seeing the injustice system wield mass incarceration as a weapon against black men, bearing witness as the first African-American president produced his long-form birth certificate, all helped me understand just how silly we were to believe bigotry was done.
So a chill crawled my spine last week as the Supreme Court heard arguments in a case that could result in gutting the Voting Rights Act. That landmark 1965 legislation gave the ballot to black voters who had previously been denied it by discriminatory laws, economic threats, violence and by registrars who challenged them with nonsense questions like, “How many bubbles are in a bar of soap?”
One of the act’s key provisions covers nine mostly Southern states and scores of municipalities with histories of such behavior. They must get federal approval before changing their voting procedures. The requirement may be stigmatizing, but it is hardly onerous.
Yet Shelby County, AL seeks the provision’s repeal, pronouncing itself cured of the attitudes that made it necessary. “The children of today’s Alabama are not racist and neither is their government,” wrote Alabama attorney general Luther Strange last week.
It was rather like hearing a wifebeater say he has seen the error of his ways and will no longer smack the missus around. Though you’re glad and all, you still hope the wife’s testimony will carry a little more weight in deciding whether the restraining order should be lifted.
But the Court’s conservatives seemed eager to believe, peppering the law’s defenders with skeptical questions. Indeed, Justice Antonin Scalia branded the law a “racial entitlement.”
Sit with that a moment. A law protecting the voting rights of a historically disenfranchised minority is a “racial entitlement”? Equality is a government program?
Lord, have mercy.
There is historical resonance here. In the 1870s, the South assured the federal government it could behave itself without oversight. The feds agreed to leave the region alone where race was concerned. The result: nearly a century of Jim Crow. Now here comes Shelby County, saying in effect: We’ve changed. Trust us.
It is an appeal that might have seemed persuasive back when I was young and naive, sitting on Cathy’s lap (or she on mine) and thinking race was over. But that was a long time ago.
Yes, the South has changed — largely because of the law Shelby County seeks to gut. Even so, attempts to dilute the black vote have hardly abated. We’ve just traded poll taxes and literacy tests for gerrymandering and Voter ID laws.
So we can ill afford to be as naive as a top Court conservative at the prospect of softening federal protection of African-American voting rights. “Trust us,” says the South. And the whole weight of history demands a simple question in response.
By: Leonard Pitts, Jr., The National Memo, March 3, 3013