“People Have Told Me About Stops!”: The Chief Justice Has Never Been Pulled Over In His Life
In a little-noticed hearing last month, the Supreme Court considered Rodriguez v. United States, a case involving the Fourth Amendment’s protection against unreasonable searches and seizures. The core issue the justices confronted was how long a police officer could extend a routine traffic stop for purposes of calling in the dogs—drug-sniffing dogs.
At first blush, the question seems uncomplicated and slightly mundane. Who cares about police canines? The vast majority of drivers won’t be drug kingpins or carry illegal contraband in their cars. But the Fourth Amendment doesn’t exist to protect drug traffickers; it protects everyone from police overreach. Whatever the court decides on any Fourth Amendment case—the court accepts a number of them every year—should matter to everyone.
And judging from how oral arguments in Rodriguez played out, you have reason to worry about how the justices will rule. Because for an hour, they grappled, interrupted one another, suggested potential rules, posed lengthy hypotheticals, and in the end couldn’t seem to reach any consensus on how to decide the case. Viewed charitably, the hearing was a hot mess.
The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”
There was laughter in the courtroom. And the lawyer, recently retired federal public defender Shannon P. O’Connor, played along and responded with humor: “I’ve had friends that say the same thing, Mr. Chief Justice.”
But to anyone who closely watches the court’s jurisprudence on the Fourth Amendment, there’s nothing funny about Roberts’ naiveté about traffic stops, let alone his ignorance of the real frustration that comes with being kept even a second longer than necessary. The “seizure” of a person, in constitutional lingo, is in fact part and parcel of all of our recent conversations about policing in America. New York’s stop-and-frisk saga, the death of Michael Brown, and incidents involving use of force by police all implicate police departments’ and courts’ interpretation of the Fourth Amendment.
Justice Sonia Sotomayor was not amused. Later in the arguments, she turned to Roberts and said, “Chief, I’ve been stopped … [and] keeping me past giving me the ticket is annoying as heck, whether it’s five minutes, 10 minutes, [or] 45.” She placed a lot of emphasis on the word heck.
Sotomayor knows a little something about stops, and no, it has nothing to do with her upbringing in the Bronx or the fact that she has been pulled over before. She is the only sitting justice who actually has criminal trial experience—first as a prosecutor, and later as a district judge in Manhattan. She has presided over hearings calling for the suppression of illegal evidence, over criminal trials where that evidence was later at play, in civil cases against prison officials and police officers accused of false imprisonment or the use of excessive bodily force. She has seen how the Fourth Amendment plays out in real life.
This first-hand experience may explain why she was the lone dissenter in another case involving brushes with law enforcement. In December, she and Roberts were on opposite ends in Heien v. North Carolina, a case that green-lighted reasonable “mistakes of law” as the basis for a traffic stop. Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.
“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”
Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”
Though Roberts’ deference towards police ignorance won the day in Heien, Sotomayor did take an opportunity to remind her colleagues that the ruling will have real-life effects on those most likely to endure uncomfortable encounters with the police: minorities and communities of color. She wrote that the court’s decision has the potential of “further eroding the … protection of civil liberties in a context where that protection has already been worn down.” She called these the “human consequences” of the court’s rulings on the Fourth Amendment and wondered “how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.”
Roberts, for all his intelligence, is ill-equipped to wrap his brain around that scenario; he has never been stopped by the police before. (The Supreme Court press office did not reply to a request for confirmation of Roberts’ lack of experience in this regard.) He did author a landmark ruling last year on the necessity of warrants prior to rummaging through a cellphone, but think of the factual premise: He probably does have a smartphone with extremely personal information.
Not so with close encounters with police. To assume that he and the rest of the court will issue a principled ruling on how many minutes a traffic stop can be extended—the answer, in a perfect world, should be zero—ignores that the court has already ruled constitutional far more invasive government practices, all under the guise of reasonableness, pat-downs and body-cavity searches among them.
America’s attention will turn to Obamacare and same-sex marriage when the Supreme Court entertains them later in the year. It is little cases like Rodriguez—easily lost in the news cycle—that have the greatest potential to undermine further the already-strained relationship between the community and the police.
By: Cristin Farias, Slate, February 11, 2015
“Social Security Faces Threat From ‘Ideological War'”: Republicans Manufacturing A Crisis’ To Hide Their Real Intent
Sen. Elizabeth Warren (D-Mass.) sent a message to supporters yesterday, warning of a real threat to Social Security. By any fair measure, she’s right.
“We’ve known for years that Social Security Disability Insurance is set to run low in 2016, and most people assumed that another bipartisan reallocation was coming,” the senator wrote. “But now, thanks to the Republican ideological war on our most important national safety net, disabled Americans could suddenly face a 20% cut in their Social Security checks next year.”
Let’s recap for those just joining us. The Social Security system provides disability payments to Americans who want to work but can’t for health reasons. For generations, when the disability-insurance program runs short on funds, Congress transfers money from elsewhere in the Social Security system to prevent benefit cuts. The solution, sometimes called “reallocation,” has never been especially controversial – in fact, it’s been done 11 times over the last seven decades.
But last month, congressional Republicans adopted a rule change that makes it almost impossible to approve the usual, straightforward fix. GOP lawmakers seem to want to create the conditions for a crisis.
All of which led to an important Senate hearing yesterday.
Carolyn Colvin, acting commissioner for the Social Security Administration, urged senators to act first to avert the crisis at hand and then begin serious negotiations on finding a longer-term solution. She said the threatened cut in disability payments – about 19 percent – would be a “death sentence” for many of the poorest recipients, but time and again, she refused to opine on more concrete options going forward.
When Colvin read aloud the president’s six principles for future reforms, Sen. Lindsey Graham (R-S.C.) was scornful. “That’s a set of principles that makes sure we do absolutely nothing meaningful,” Graham said. “If that’s the president’s plan, we’ll never get there.”
And by “meaningful,” it appears Graham and other Senate Republicans are waiting for the White House to propose cuts to Social Security. (Ironically, President Obama was open to modest Social Security cuts as part of a grand bargain with GOP lawmakers, but Republicans have refused to consider any possible concessions and effectively ruled out the possibility of a compromise.)
The Politico report added that Sen. Bernie Sanders (I-Vt.), the Senate Budget Committee’s ranking member, “angrily accused the GOP of ‘manufacturing a crisis’ to hide its intent to resurrect past proposals to cut Social Security benefits and privatize the system.”
This has the benefit of being true. Addressing the upcoming shortfall in the disability-insurance program should be easy. Republicans are ensuring that it’s not, hoping to exploit a manufactured crisis to force Social Security cuts they wouldn’t otherwise be able to get.
Indeed, the literal name for yesterday’s hearing for the GOP-led committee was, “The coming crisis: Social Security Disability Trust Fund Insolvency.” There would be no crisis, and no threat of insolvency, if Republicans hadn’t already ruled out the straightforward solution lawmakers have relied on for decades.
Budget Committee Chairman Mike Enzi (R-Wyo.) said yesterday, “I’m hoping the president will take an active role in this.” Expect more of this kind of rhetoric: Republicans will feign outrage over Obama refusing to offer far-right solutions the GOP-led Congress considers acceptable.
By: Steve Benen, The Madow Blog, February 12, 2015
“Ending Police Brutality Isn’t Up To The Communities”: Want To Stop Police Brutality? Start Disciplining Officers
As they strive to solve the public crisis of police use-of-force incidents, illuminated again by the deaths of several black victims last year, officials from the White House on down have coalesced around “community policing.” When it comes to influencing the national conversation on a local issue like this, it doesn’t get more official than the U.S. Conference of Mayors, or USCM. The non-partisan organization is comprised of more than one thousand mayors representing the nation’s largest cities. Its mission is to shape national urban policy and the positions adopted at their annual meeting are distributed to the President of the United States and to Congress.
On January 30, the USCM released a report on strengthening “police-community” relations in American cities. The six-page report came full of recommendations for everything from “youth study circles” to new equipment. The report was completed with the help of a working group of police chiefs, including Philadelphia Commissioner Charles Ramsey, the man appointed by President Obama to chair his Task Force on 21st Century Policing in response to rising unrest around around the issue of police brutality.
Absent from their suggestions, however, was a single mention of officer discipline.
A full page is dedicated to the imprecise goal of “Addressing Racial and Economic Disparities and Community Frustration with and Distrust of Governmental Institutions.” The use of “distrust,” however, is disingenuous. While black citizens do report having less confidence than white ones in police, the overwhelming majority—more than three-quarters—report having some to a “great deal of confidence” in police. Trust isn’t the issue here.
What the #BlackLivesMatter protests made clear is that communities of color are increasingly fed up with the over-policing of our neighborhoods, extrajudicial killings of unarmed black people and the failures of the justice system to hold killer cops accountable. To ignore those complaints and suggest that the issue is merely one of distrust is dishonest, and it evades the very obvious fact that police brutality is a national problem that persists, in part, because cops can get away with it.
I’ve commented before on “community policing,” but it’s worth noting again how troubling that term is. “Community policing” reframes the conversation around police reform from one that addresses police brutality to one that addresses the relationship between law enforcement and communities of color, as though they’re mutually combative. The relationship between the two isn’t the issue. It’s the manner in which law enforcement relates to communities of color that’s proven deadly, time and time again.
Comedian Chris Rock provided an apt analogy for this during his recent New York Magazine interview.
“If you saw Tina Turner and Ike having a lovely breakfast over there, would you say their relationship’s improved? Some people would. But a smart person would go, ‘Oh, he stopped punching her in the face.’ It’s not up to her. Ike and Tina Turner’s relationship has nothing to do with Tina Turner.”
Similarly, ending police brutality isn’t up to the communities that are brutalized. It’s up to the cops.
Now, the USCM report is not all bad. Its call for independent investigations of deadly police encounters is a substantive step. It makes helpful nods toward improving hiring and training practices. However, the report’s failure to get serious about police reform and combating police abuses and to instead focus on “relationships,” while politically convenient, doesn’t begin to solve the problem. The report fails, for instance, to address the systematic failure of police departments nationally to discipline officers who are found to have inappropriately engaged citizens and used excessive force.
Take the New York Police Department, for example, the nation’s largest. It is often at the forefront of innovation in the field. But, when it comes to disciplining officers for misconduct, the NYPD fails miserably. Just last year, the department decided not to discipline 25 percent of the officers who its Civilian Complaint Review Board found guilty of committing misconduct. A WNYC report also found that the NYPD fails to drive out cops who present red flags for abuse.
Within policing, too-frequent charges of “resisting arrest” by cops is a red flag for excessive force. The logic is that an abusive officer will be more likely to cover up excessive force with the excuse that a suspect resisted arrest. But WNYC found that just five percent of officers who’ve made arrests since 2009 accounted for 40 percent of the charges of resisting arrest. They even discovered one active officer to have made more than 50 charges. Does the community just need a better “relationship” with this cop who curiously finds himself in these sorts of situations time and time again?
Coincidentally, just last week, NYPD Commissioner Bill Bratton asked New York lawmakers to raise resisting arrest from a misdemeanor to a felony. That is an alarming claim, given how and why Eric Garner was choked to death on Staten Island by a police officer in July. Like the subsequent deaths of John Crawford III in an Ohio Wal-Mart, Tamir Rice near a Cleveland community center, each incident was avoidable and not one of their killers has been brought to justice. Another one that qualifies is the November shooting death of Akai Gurley in a Brooklyn housing project stairwell; we learned Tuesday that the officer involved was indicted Tuesday on several counts, including second-degree manslaughter.
There’s a suite of reforms, from recruiting to data collection, that need to be made throughout the nation’s police departments, and strengthening discipline measures must be central to any proposal that seeks justice for victims of police brutality and to prevent future tragedies.
First, police departments must do a better job of actively ferreting out bad cops. Using early warning systems that trigger an intervention process when an officer has an excessive number of use of force complaints against him, or has filed a certain number of resisting arrest charges, is a start. Departments also need central databases that collect information on police conduct from various sources, so that an officer’s complete record can be compiled and viewed. Police departments must also make it a priority to maintain their integrity by investigating citizen complaints swiftly, impartially and with transparency. Independent, civilian-led complaint review boards are essential in doing that work.
Finally, the decisions of civilian review boards should not just serve as recommendations for discipline, but should be a determining factor in it. That is, in effect, the only way to hold police officers directly accountable to the communities they serve.
“Community policing” sounds good. As proposed, it will probably be more politically expedient than substantive change in policy, but we cannot fix our deadly system of policing without addressing officer discipline. There must be measures in place to make cops think twice about pulling the trigger. It’s a matter of accountability, but also of life and death.
By: Donovan X. Ramsey, The New Republic, Fbruary 12, 2015
“The Burden Of Governing”: Boehner Tantrum Does The GOP Cause No Favors
If House Speaker John Boehner’s (R-Ohio) tantrum yesterday was intended to get headlines, it was a striking success. News outlets everywhere were eager to tell the public that the Republican leader wants Senate Democrats “to get off their ass and do something.”
At issue, of course, is the dispute between the Republican-led House and the Republican-led Senate over funding for the Department of Homeland Security. When the Speaker, who still has no legislative accomplishments to his name, says he wants Dems to “get off their ass,” it’s little more than gibberish – Democrats aren’t being lazy; the congressional minority simply remains opposed to the anti-immigrant scheme cooked up by the majority.
Funny, Boehner thought filibusters were great when it was his party in the minority.
Nevertheless, the Speaker’s cursing notwithstanding, we’re left with a dispute that pits the Senate GOP against the House GOP, with each insisting the other has to do something before Homeland Security runs out of money in two weeks.
And if Boehner thought his whining yesterday might turn the tide, he was likely disappointed by the end of the day.
Republican Sen. Mark Kirk said Wednesday that his party made a mistake by picking a fight over President Barack Obama’s immigration actions, and said Senate Majority Leader Mitch McConnell (R-KY) should bring up a “clean” bill to keep the Department of Homeland Security funded.
“I generally agree with the Democratic position here. I think we should have never fought this battle on DHS funding,” the Illinois senator told a few reporters in the Capitol.
The Illinois Republican added, “I don’t think we should have ever attached these issues to DHS funding. I always thought the burden of being in the majority is the burden of governing.” This is, of course, the polar opposite of what Kirk told reporters literally the day before.
But even putting Kirk’s contradictions aside, the larger point to keep in mind is that there are growing cracks in the GOP’s facade.
While Kirk was telling reporters that his fellow Republicans should just give up and pass a clean bill, Sen. Jeff Flake (R-Ariz.) also broke ranks, adding, “Using a spending bill to poke a finger in the president’s eye is not a good move.”
At least one House Republican also wants his party to throw in the towel and end the nonsense.
“From a political perspective, in my view, you’re better off passing a clean Homeland Security appropriations bill because it makes a lot of important changes many of us on the Republican side wanted – more detention beds and all sorts of improvements to border control,” Rep. Charlie Dent (R-Pa.) told reporters.
“I think it’s better politically to vote for a clean appropriations bill,” he added. “That’s better on a policy basis as well as on a political basis. I’m going to urge that we do the DHS bill and not a CR, but a CR is better than a shutdown.”
House Republican leaders have worked from a bizarre assumption: as the deadline neared, Democrats would give in, reward the GOP with everything it wants, and abandon millions of immigrants in order to make the far-right happy. As long as Republicans kept the pressure on and refused to budge, Boehner and Co. thought, Democrats would magically move to the right.
As became clear yesterday, it’s actually Republicans who are giving up on this gambit and endorsing the Democratic position.
By: Steve Benen, The Madow Blog, February 12, 2015
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