“How The Supreme Court Protects Bad Cops”: How Many More Deaths And Riots Will It Take Before SCOTUS Changes Course?
Last week, a grand jury was convened in St. Louis County, Mo., to examine the evidence against the police officer who killed Michael Brown, an unarmed black teenager, and to determine if he should be indicted. Attorney General Eric H. Holder Jr. even showed up to announce a separate federal investigation, and to promise that justice would be done. But if the conclusion is that the officer, Darren Wilson, acted improperly, the ability to hold him or Ferguson, Mo., accountable will be severely restricted by none other than the United States Supreme Court.
In recent years, the court has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.
The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.
The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires, or even taking the license plate number and tracking the driver down later.
The court has also weakened accountability by ruling that a local government can be held liable only if it is proved that the city’s or county’s own policy violated the Constitution. In almost every other area of law, an employer can be held liable if its employees, in the scope of their duties, injure others, even negligently. This encourages employers to control the conduct of their employees and ensures that those injured will be compensated.
A 2011 case, Connick v. Thompson, illustrates how difficult the Supreme Court has made it to prove municipal liability. John Thompson was convicted of an armed robbery and a murder and spent 18 years in prison, 14 of them on death row, because of prosecutorial misconduct. Two days before Mr. Thompson’s trial began in New Orleans, the assistant district attorney received the crime lab’s report, which stated that the perpetrator of the armed robbery had a blood type that did not match Mr. Thompson’s. The defense was not told this crucial information.
Through a series of coincidences, Mr. Thompson’s lawyer discovered the blood evidence soon before the scheduled execution. New testing was done and again the blood of the perpetrator didn’t match Mr. Thompson’s DNA or even his blood type. His conviction was overturned, and he was eventually acquitted of all charges.
The district attorney’s office, which had a notorious history of not turning over exculpatory evidence to defendants, conceded that it had violated its constitutional obligation. Mr. Thompson sued the City of New Orleans, which employed the prosecutors, and was awarded $14 million.
But the Supreme Court reversed that decision, in a 5-to-4 vote, and held that the local government was not liable for the prosecutorial misconduct. Justice Clarence Thomas, writing for the majority, said that New Orleans could not be held liable because it could not be proved that its own policies had violated the Constitution. The fact that its prosecutor blatantly violated the Constitution was not enough to make the city liable.
Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.
When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.
The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.
Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?
By: Erwin Chemerinsky, Dean of the School of Law at the University of California, Irvine: Op-Ed Contributor, The New York Times, August 26, 2014
“On Trial, In Absentia”: No Presumption Of Innocence For Michael Brown
It’s not clear how effective the instinctive effort to put Michael Brown posthumously on trial for being an African-American teenager who was “no angel” will turn out to be. It was begun, of course, by the Ferguson police as soon as was humanly possible; their “investigation” of the shooting was from the get-go aimed at justifying it as an act of self-defense, much like George Zimmerman’s, by a man being forced to use his deadly force in an encounter with a demonically powerful (if unarmed) black adolescent.
As one might expect, Ta-Nehisi Coates has said pretty much everything that needs saying about the assumption that Michael Brown deserved to die for his sins:
A large number of American teenagers live exactly like Michael Brown. Very few of them are shot in the head and left to bake on the pavement.
But this isn’t just about how the court of public opinion deals with this case. At some point, unless Darren Wilson just skates, it will be litigated in a court of law, presumably before a jury, in which he will formally enjoy the presumption of innocence so many people would apparently deny Brown.
Something about a parallel case from the distant past kept nagging the back of my mind, and sure enough, I found a 1979 Texas Monthly account account by Gary Cartrwright of the acquittal of two Houston cops for killing a black man, thanks to the skill of their attorney, Richard “Racehorse” Haynes, in putting the victim on trial:
[The] two Houston cops…were accused of kicking a black man to death after arresting him for attempting to “steal” his own car. The cops had already been acquitted by a district court in Houston — now they were being tried in federal court on charges that they had violated the man’s civil rights. For starters, Haynes got the trial moved from Houston to the conservative German American town of New Braunfels. “I knew we had that case won when we seated the last bigot on the jury,” Racehorse remarked later. As the trial progressed, Haynes developed these scenarios: (1) that the prisoner suffered severe internal injuries while trying to escape; (2) that he actually died of an overdose of morphine; (3) that the deep laceration in the victim’s liver was the result of a sloppy autopsy.
Sound familiar? Give a sympathetic jury an alternative theory they can seize on, however implausible, and they just might take it–particularly if the defendant is an officer of the law and the victim–who will be described as a victim of his own excesses–fits the jury’s idea of the people cops are hired to keep under control.
Maybe we’ve made some progress since 1979. But I’m not so sure.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, August 26, 2014
“Women’s Equality Day”: The Vote — A Right Worth Fighting For
Today, August 26, marks Women’s Equality Day. It is also a little more than two months from the 2014 midterm elections. In my mind, these two things are inextricably linked.
Some of you may be asking, “What is Women’s Equality Day?” That’s a pretty easy question to answer. Every year since 1971, the President of the United States marks August 26 in commemoration of the day in 1920 that the 19th amendment to the U.S. Constitution — granting women equal voting rights — was certified into law.
Women fought long and hard for the right to vote. In 1848, the document produced by the Seneca Falls Convention was the first formal demand for women’s suffrage. During World War I, suffragists picketed the White House — possibly the first “cause” to do so. Many were arrested and participated in a hunger strike while in prison, leading to force feedings.
But not all women obtained access to the ballot box when the 19th amendment entered the law books. In the southern United States, Jim Crow laws kept most black women and men from voting. It wasn’t until passage of the Voting Rights Act in 1965 that the right to vote was extended to all adult citizens.
Sadly, the clock is turning back on voting rights. In 2013, the U.S. Supreme Court eviscerated Section 5 of the Voting Rights Act, relieving dozens of state and local jurisdictions from having to pre-clear changes in their voting laws with the U.S. Department of Justice. They have wasted no time erecting new barriers against voting. In state after state, GOP-dominated legislatures have enacted new rules aimed at suppressing the votes of specific types of people: younger voters, immigrant citizens, voters of color and unmarried women.
The specific voter suppression laws vary from state to state. The most restrictive states require voters to present a government issued photo ID (a driver’s license, a passport, military ID, etc.); currently, 34 states have voter ID laws, and 15 of those states require photo ID.
The voter-suppression crowd argues that requiring a photo ID for voting is not onerous. It’s just a driver’s license, and you have to have that to drive, or get on a plane, or buy alcohol. Besides, they say, we need photo IDs to prevent voter fraud.
Here’s why that’s all wrong: (1) Voter fraud is all but non-existent in the U.S., and photo ID doesn’t address the very few instances that have been found. (2) Just a reminder for anyone who wasn’t paying attention in middle school, voting is not like driving, buying alcohol or traveling by plane. Voting is a constitutional right and essential to the democratic process. (3) The notion that a photo ID is simply something everyone has presumes all eligible voters have the right paperwork (or the money to get the right paperwork, like a birth certificate), transportation to get to their local DMV, and the ability to take time off work to make the trip.
So, if there is no real voter fraud to worry about, what’s the real goal of voter suppression measures? Well, it turns out that the majority of voting-eligible people in the U.S. disagree with the right wing’s anti-woman, anti-social justice, anti-union agenda. Seven in ten Americans support Roe v. Wade, the 1973 U.S. Supreme Court decision legalizing abortion. A majority support labor unions, raising the minimum wage, and equal pay for equal work. And 62-63 percent support comprehensive immigration reform with a clear path to citizenship.
The reality is, if enough voters actually turn out for this November’s elections, we could elect candidates who support our issues and turn our country around. Does anyone doubt that the folks trying to suppress our votes are hearing footsteps?
I’ve always been proud of NOW’s position as the grassroots arm of the women’s movement. Our activists and members throughout the country are already doing the hard work on the ground — knocking on doors, making calls, educating and mobilizing voters — to get the word out about how high the stakes are this year. Want to get in on the action? Join me and take NOW’s pledge to vote on November 4th.
The right to vote is precious. Our feminist foremothers were beaten, arrested, went on hunger strikes and endured force-feeding for that right. Our sisters and brothers in the civil rights movement were beaten, jailed and murdered for registering Black voters. This year, let’s honor our proud history by voting in such large numbers that even the most dishonest, most cowardly suppression efforts can’t stop us!
By: Terry O’Neil, President, National Organization for Women; The Huffington Post Blog, August 26, 2014
“Wrong Way Nation”: The Growth Of The Sunbelt Isn’t The Kind Of Success Story Conservatives Would Have Us Believe
Gov. Rick Perry of Texas is running for president again. What are his chances? Will he once again become a punch line? I have absolutely no idea. This isn’t a horse-race column.
What I’d like to do, instead, is take advantage of Mr. Perry’s ambitions to talk about one of my favorite subjects: interregional differences in economic and population growth.
You see, while Mr. Perry’s hard-line stances and religiosity may be selling points for the Republican Party’s base, his national appeal, if any, will have to rest on claims that he knows how to create prosperity. And it’s true that Texas has had faster job growth than the rest of the country. So have other Sunbelt states with conservative governments. The question, however, is why.
The answer from the right is, of course, that it’s all about avoiding regulations that interfere with business and keeping taxes on rich people low, thereby encouraging job creators to do their thing. But it turns out that there are big problems with this story, quite aside from the habit economists pushing this line have of getting their facts wrong.
To see the problems, let’s tell a tale of three cities.
One of these cities is the place those of us who live in its orbit tend to call simply “the city.” And, these days, it’s a place that’s doing pretty well on a number of fronts. But despite the inflow of immigrants and hipsters, enough people are still moving out of greater New York — a metropolitan area that, according to the Census, extends into Pennsylvania on one side and Connecticut on the other — that its overall population rose less than 5 percent between 2000 and 2012. Over the same period, greater Atlanta’s population grew almost 27 percent, and greater Houston’s grew almost 30 percent. America’s center of gravity is shifting south and west. But why?
Is it, as people like Mr. Perry assert, because pro-business, pro-wealthy policies like those he favors mean opportunity for everyone? If that were the case, we’d expect all those job opportunities to cause rising wages in the Sunbelt, wages that attract ambitious people away from moribund blue states.
It turns out, however, that wages in the places within the United States attracting the most migrants are typically lower than in the places those migrants come from, suggesting that the places Americans are leaving actually have higher productivity and more job opportunities than the places they’re going. The average job in greater Houston pays 12 percent less than the average job in greater New York; the average job in greater Atlanta pays 22 percent less.
So why are people moving to these relatively low-wage areas? Because living there is cheaper, basically because of housing. According to the Bureau of Economic Analysis, rents (including the equivalent rent involved in buying a house) in metropolitan New York are about 60 percent higher than in Houston, 70 percent higher than in Atlanta.
In other words, what the facts really suggest is that Americans are being pushed out of the Northeast (and, more recently, California) by high housing costs rather than pulled out by superior economic performance in the Sunbelt.
But why are housing prices in New York or California so high? Population density and geography are part of the answer. For example, Los Angeles, which pioneered the kind of sprawl now epitomized by Atlanta, has run out of room and become a surprisingly dense metropolis. However, as Harvard’s Edward Glaeser and others have emphasized, high housing prices in slow-growing states also owe a lot to policies that sharply limit construction. Limits on building height in the cities, zoning that blocks denser development in the suburbs and other policies constrict housing on both coasts; meanwhile, looser regulation in the South has kept the supply of housing elastic and the cost of living low.
So conservative complaints about excess regulation and intrusive government aren’t entirely wrong, but the secret of Sunbelt growth isn’t being nice to corporations and the 1 percent; it’s not getting in the way of middle- and working-class housing supply.
And this, in turn, means that the growth of the Sunbelt isn’t the kind of success story conservatives would have us believe. Yes, Americans are moving to places like Texas, but, in a fundamental sense, they’re moving the wrong way, leaving local economies where their productivity is high for destinations where it’s lower. And the way to make the country richer is to encourage them to move back, by making housing in dense, high-wage metropolitan areas more affordable.
So Rick Perry doesn’t know the secrets of job creation, or even of regional growth. It would be great to see the real key — affordable housing — become a national issue. But I don’t think Democrats are willing to nominate Mayor Bill de Blasio for president just yet.
By: Paul Krugman, Op-Ed Columnist, The New York Times, August 24, 2014
“Obamacare, Beyond The Label”: The Politics Of Obamacare Are Upside-Down
The Affordable Care Act was supposed to be a slam-dunk issue for the Republicans in this fall’s elections. Karl Rove told us so in April, writing that “Obamacare is and will remain a political problem for Democrats.”
So how’s that Obamacare thing working out for the GOP?
The most significant bit of election news over the last week was the decision of Senator Mark Pryor, the embattled Arkansas Democrat, to run an ad touting his vote for the health care law as a positive for the people of his increasingly Republican state.
Pryor’s ad is so soft and personal that it’s almost apolitical. After his dad, the popular former senator David Pryor, tells of his son’s bout with cancer, he notes that “Mark’s insurance company didn’t want to pay for the treatment that ultimately saved his life.” The picture has widened to show Mark Pryor sitting next to his father. “No one should be fighting an insurance company while you’re fighting for your life,” he says. “That’s why I helped pass a law that prevents insurance companies from canceling your policy if you get sick, or deny coverage for pre-existing conditions.”
Who knew a law that critics claim is so dreadful could provide such powerful reassurance to Americans who are ill?
Democrats have never fully recovered from the Obama administration’s lousy sales job for (and botched rollout of) what is, legitimately, its proudest domestic achievement. That’s one reason Pryor doesn’t use the word “Obamacare” in describing what he voted for. Another is that in many of the states with contested Senate races this year, most definitely including Arkansas, President Obama himself is so unpopular that if you attached his name to Social Security, one of the most popular programs in American history would probably drop 20 points in the polls.
So, as the liberal bloggers Greg Sargent, Brian Beutler and Steve Benen have all noted, Republicans would much prefer to run against the law’s name and brand than the law itself. They also really want to avoid being pressed for specifics as to what “repealing Obamacare” would mean in practice.
As one Democratic pollster told me, his focus groups showed that when voters outside the Republican base are given details about what the law does and how it works, “people come around and say, ‘That’s not so bad, what’s everybody excited about?’”
This consultant says of Democrats who voted for the law: “You’re going to be stuck with all the bad about this but not benefit from any of the good unless you advertise” what the Affordable Care Act does. This is what Pryor has decided to do.
In fact, according to Gallup, Arkansas is the No. 1 state in the country when it comes to reducing the proportion of its uninsured since the main provisions of the ACA took effect. The drop was from 22.5 percent in 2013 to 12.4 percent in 2014. The No. 2 state is Kentucky, where the uninsured rate fell from 20.4 percent to 11.9 percent. What they have in common are Democratic governors, Mike Beebe in Arkansas and Steve Beshear in Kentucky, committed to using Obamacare — especially, albeit in different ways, its Medicaid expansion — to help their citizens who lack coverage. Beshear has been passionate in selling his state’s version of Obamacare, which is called kynect.
Kentucky also happens to be the site of another of this year’s key Senate races. Democrat Alison Lundergan Grimes is giving Republican leader Mitch McConnell what looks to be the toughest re-election challenge of his 30-year Senate career.
The Bluegrass State is particularly instructive on the importance of labeling and branding. A Public Policy Polling survey earlier this month found that the Affordable Care Act had a net negative approval rating, 34 percent to 51 percent. But kynect was rated positively, 34 percent to 27 percent. Grimes and the Democrats need to confront McConnell forcefully on the issue he has tried to fudge: A flat repeal of Obamacare would mean taking insurance away from the more than 521,000 Kentuckians who, as of last Friday, had secured coverage through kynect. How would that sit with the state’s voters?
Election results, like scripture, can be interpreted in a variety of ways. You can bet that foes of expanding health insurance coverage will try to interpret every Republican victory as a defeat for Obamacare. But as Mark Pryor knows, the president’s unpopularity in certain parts of the country doesn’t mean that voters want to throw his greatest accomplishment overboard — even if they’d be happy to rename it.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post; The National Memo, August 25, 2014
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