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by Peter Moskos

July 29, 2015

One way to do it

I have an opinion piece in today's Washington Post:
I told her to get back in her car several times, which she finally did reluctantly . I approached and asked for her license. She was on her phone saying she wanted a sergeant and another officer and added: “If I’m going to get shot, I want it to be recorded because I know this is recorded and I know my rights . . . if I get shot, I want it documented.”

She wouldn’t stop talking, yelling really, at me and into her phone : “He just pulled me over for being black. I can’t believe this would happen to me. There are all those drug dealers, and you’ve got to harass me!”
As I returned to my car, a call came over the radio for a woman being assaulted by a police officer at my location.
In light of the Sandra Bland car stop, I couldn't help but think of this one car stop I did, many years ago. Nobody got hurt.

July 25, 2015

"Are you done?"

When Sandra Bland was asked by Officer Encinia if she, "was done," she actually was. Officer Encinia could have issued a ticket or a warning and walked away. But he chose not to. That was a mistake. Not legally, mind you. But morally and tactically, it was stupid.

"A roadside domestic," is how my friend and retired Baltimore cop, Leon Taylor put it. ("Code it, David-Yes.") Yeah, my idea of a fun Friday night is seeing Leon, who happened to be in town unexpectedly, and analyzing the full Sandra Bland arrest video over a beer.

Both Bland and Encinia could have deescalated, and neither did. But it's not Bland's job to deescalate. She's not paid to interact with citizens and make things safer. It's not her responsibility. She can do whatever the hell she wants. It might end up with her getting arrested. Sure. But it's only the police officer's moral and professional responsibility to do the right thing.

The job of a police officer is avoid creating potentially dangerous situations and to deal, professionally, with upset people. To intentionally not do so is bad policing.

Here's my timeline and transcript of the Officer Encinia Bland encounter. Times are based on the above video. (The transcript isn't perfect; but it's the best I could do.) The video starts with Officer Encinia wrapping up what seems to be a very nice car stop. (That car then pulls away from the curb without signaling, I can't help but notice.)
1:15 Bland makes right turn onto road.

1:20 Cop makes a U-Turn.
At this point I'm wondering why he's interested in Bland, if he is. It's not clear if she signaled a right turn (or stopped) or not. But he never mentions this later. Is he just speeding to get coffee? I don't know. But it does seem like he already intended to stop her. But maybe not.

Maybe he liked stopping cars so he could give drivers warnings instead of tickets. And then he'd leave feeling all warm and fuzzy. I don't know. But you don't really deserve credit when you pull people over for bullshit and then choose not to write them up. 

I'd guess he's pushing roughly 35-40 mph in what is 20 mph zone. At 2:00 Officer Encinia pulls up behind Ms. Bland, who changes lanes without signaling. Bland later tells Encinia, quite honestly, that she was trying to get out of the officer's way. Technically, though, she did failed to signal a lane change.
2:40 Officer: Hello, Ma'am. The reason for your stop is you failed to signal the lane change. Do you have your driver's license and insurance with you.

[pause or incomprehensible]

What’s wrong?
Officer Encinia checks the car's front tag and then returns to police car by 4:23. He exits the car at 8:35. Now up to this point, except for a very bullshit nature of the actual violation, it's hard to fault the officer for any of his his actions or demeanor toward Sandra Bland. For her part, she signals complete verbal compliance. She's not happy. But then why should she be?
8:39 Him: OK, ma’am.


Him: You OK?

8:50 Her: I’m waiting on you. You... This is your job. I’m waiting on you. Whatever you want me to do.

8:55 Him: You seem very irritated?

8:57 Her: I am. I really am. I feel like you stopped me, for what I am getting a ticket for -- I was getting out of your way. You was speeding up, tailing me. So I move over, and you stop me. So, yeah, I am a little irritated. But so that doesn’t stop you from giving me a ticket, so...
Now here Bland is attempting to connect. She actually thought the officer cared what was wrong. After all, he did ask, well, "what's wrong?"

There's a long 5 second pause before the officer says, "I'm sorry, Ma'am. I'm just going to give you a warning. Please drive safely," and Bland drives away.

Oh, wait.... That's not what happened. But that could have been the happy ending. But it wasn't.

They both end up taking the low road, but it's initiated by the police officer. This could have been the perfect time for a cop to win her over. This is how community relations start: not with a community relations officer, but with every damn interaction between police and the public.

Think of everything that has happened in the past year with police. And then think of the stupidity of this stop. And then you ask someone, "what's wrong?" and leave them for four minutes to think about the answer? Four minutes is a long time to wait for a traffic stop warning, but it's not crazy long (computers do go down and/or get slow). Four minutes is enough time to sit and fume and think about history and present and want to answer the question, "what's wrong?"

Let's rewind a few seconds:
Her: I am. I really am. I feel like you stopped me, for what I am getting a ticket for -- I was getting out of your way. You was speeding up, tailing me. So I move over, and you stop me. So, yeah, I am a little irritated. But so that doesn’t stop you from giving me a ticket, so...

[four second pause]

9:09 Are you done?
Oh, no he didn't!

See this is where things went south. She told him what was going on in her mind. She was willing to receive a ticket. But she wasn't going to be happy about it. You don't have to be happy when you think the cops are going to give you a bullshit ticket. Especially for some violation that was caused by the cop's presence in the first place. You have to obey. And until this point, Bland does obey. And as a cop, that's all I ever really wanted. But rather than calm down or even listen to Bland, the officer is as rude as you could be in three non-obscene words: "Are you done?"

It's like the officer is saying, "If I don’t engage you, you’ll never how I really feel." Or, "Are you through telling me that bullshit?" Or, "I want you to start talking so I can tell to shut the fuck up." Try that with somebody you love and see how it works. Bland was compliant. She was resigned. The problem from the officer's perspective seems to be that she wasn't properly deferential. She wasn't shucking and jiving:
9:11 You asked me what was wrong and I told you. So now I’m done, yeah.

9:14 OK.

9:20 You mind putting out your cigarette please, you mind?

9:24 I’m in my car. Why do I have to put out my cigarette?

9:29 Well you can step on out now.
I have no idea what Officer Encinia's intention is here. Except for her tone, it's her first pushback to his authority. Now don't get me wrong, authority is important to a cop. But authority is something you receive. It's something you earn. It's not something you demand. And the cop quickly becomes an asshole. Why? Because he can. 

I guess because she said she didn't have to put out her cigarette in her car (though legally, she probably would have had to put out, if ordered, based on officer's perception of safety) maybe Encinia thought, I'll show you by taking you out of your car comfort zone. And then you won't give me any lip. This is straight up Southpark shit.

Again, the cop is in his rights, as the Court has defined them, but I don't see how he's making himself safer by getting her out of her car. Is she under arrest at this point? I don't know. But the Court has said that police (in a Texas case) can arrest people for even non-arrestable traffic offenses. Does that make sense? No. But it's Law of the Land.

It's possible Encinia knew his he could arrest on any traffic stop and chose to do so. Dickish, but legal. (Often this constitutional right is prohibited by state or local statute, but I doubt I don't it's prohibited in Texas). Either way, you can arrest her the moment she refuses to comply with the lawful order to get out of the car. Disobeying a lawful order is a crime. The game is rigged in police officers' favor, I'm telling you. And that's why you shouldn't play.

At any time up to this moment Bland could have also deescalated. She could have said, "yes sir, sorry sir." And probably she would have gone on her way with a warning. She made a choice. A bad choice. You'll never win an argument like this with a cop. Nine times out of ten, on strictly legal grounds, the cop is right. And the tenth time? You're still not going to win.
9:30 I don’t have to step out of the car.

Step out of the car

9:37 Her: No, you do not have the right to do that.

Him: I do have the right. Now step out or I will remove you.

9:45 Her. I refuse to talk to you other than identify myself.
He's right here. She doesn't have to make small talk. But she does have to get out of the car. There's too much bad "know your rights" crap on YouTube. The problem with learning "your rights" on the internet is it's often flat out wrong. Also, even if it is right in some cases, it may not apply in your case. And there's no way to know. It depends on a lot of factors you may not know about. And the cop is under no obligation to tell you so. Sometimes, you know, there actually is a time sensitive emergecy.

The best legal advice, my advice that will never get you locked up or shot, is comply like a complying fool, do not run away, do not fight. Period. Is that too demeaning for you? Too much Ethiopian Shim Sham shucking and jiving? Well that's up to you. But as I tell my students: pick your battles.

But keep in mind police officers do not have to give you a reason for their actions. Ever. You can ask, "why?" They are under no obligations to answer. Ever. Police never have to answer your questions. Now tactically and morally, and just as common courtesy, there are very good reasons officers should sometimes explain their actions, but legally they do not have to. And sometimes (not most of the time, mind you) there are good reasons not to.

And if you insist you have a right when you don't, well, that's how you talk your way into handcuffs. Or worse. At 9:48, just 7 minutes after this doomed blind date started, they start bickering like a couple that's been in bad relationship for 170 years.
9:48: Step out or I will remove you.

Her: I am getting removed for a failure to signal?

Him: Step out or I will remove you. I’m giving a lawful order. Get out of the car now. Or I'm going to remove you.

9:54 Her: I'm calling my...

9:55 I’m going to yank you outta here (take the keys)

OK, you going to yank me out of my my car.

9:59 Get out

10:00 [calls for backup]
This is a dumb move. From a tactical perspective, what the hell is he doing? She is not an imminent threat. So you try and force her in a position where she might be? You want to force her out by yourself instead of waiting for backup that is literally a couple minutes a way. If you're solo and want to arrest somebody or get a person out of a car (not an easy thing to do), then you, office, shuck and jive and do the Ethiopian Shim Sham until you have backup. There's no reason to do this alone. And yet he does. Why? I don't know. I guess because he wants to prove his dominance over her. And Bland knows that. It's horrible policing.
Her: All right, let’s do this.

Him: We're going to.

Her: Don’t touch me.

Him: Get out of the car

Her: Don't touch me. I’m not under arrest, and you don’t have the right.
I can't help but wonder if Sandra Bland would still be alive if she did actually understand his rights and her obligations in a police-citizen car stop.
10:10 You are under arrest

I'm under arrest for what?! For what?
Failure to obey a lawful order. Or just because he wanted to, based on Atwater.
Officer Encinia then calls for faster backup around 10:15. This is also horrible policing. Other officers now will race to the call. But the only reason you need backup is because you made a bad tactical decision, officer. Racing to calls is dangerous. Officers get killed. And if you make your fellow officers race to your bullshit too often, well, after a while they're going to go really slow and stop at all the red lights. Safety first, after all.
Him: Get out of the car. Get out of the car, now!

Her: Why am I being apprehended. You're trying to give me a ticket...

I said get out of the car.

Why am I being apprehended?

I’m giving you a lawful order. I'm going to drag you out of here.

You threatening to drag me out of my own car?

10:30 Get out of the car! I will light you up. Get out of the car!

[He's holding his Taser. Bland complies.]

Her: Wow. You doing all of this for a failure to signal.

Him: Get over there.

Her: Right yeah, let’s take this to court.

Him: Go Ahead.

Her: for a failure to signal.

Get off the phone.

I’m not on the phone. I have a right to record this. It’s my property.

Put your phone down.


Put your phone down. right now. Put your phone down.

For a fucking failure to signal. My goodness.

11:03 Come over here.

Her: Ya’ll are interesting. Very interesting. You feel good about yourself? You feel good about yourself? For a failure to signal. You feel real good about yourself.

Him: Come over here now.

Her: You feel good about yourself.

Turn around. Turn around now.

Why can’t you tell me why I’m being arrested.

I’m giving you a lawful order.

Why am I being arrested?

Him: Turn around.

Her: Why won’t tell me that part?

11:25 I’m giving you a lawful order. Turn around.

Why will you not tell me that part?

You are not compliant.

I’m not compliant because you just pulled me out of the car.


Her: Are you fucking kidding me. This is some bullshit.

Him: Put your hands behind your back.

11:35 You know this is straight bullshit. And you pull this shit. Full of straight this That’s all is some scary ass cops. Y’all bitch ass is scared. That’s all it is. Fucking scared of a female.

Him: If you would've just listened.
See, now we're just in straight-up bickering couple bullshit. He's dismissive of her. She's trying to emasculate him.
11:49 I was trying to sign the fucking ticket! Whatever.

Him: Stop moving.

Her: Are you fucking serious?

Him: Stop moving.

Oh, I can’t wait till we go to court. Ohhh, I can’t wait. I cannot wait till we go to court! I can’t wait. Oh, I can’t wait. You want me to sit down now?

12:01 No.

Her: You was going to throw me to the floor. That’ll make you feel better about yourself?

12:06 Knock it off.

That make you feel better about yourself? That’ll make you feel real good, won’t it? Pussy ass. Fucking pussy. For a failure to signal. You doing all of this. In little ass Prairie View Texas. My God, they must...

Him: You were getting a warning. Until now. You’re going to jail

Her: I'm getting a, for what?!

12:23 You can come read it.

For what? I’m getting a warning for what?

Stay right here.

Her: For what?! You were pointing me over there!

12:29 I said stay right here

Her: Oh, I swear on my life, y’all some pussies. A pussy-ass cop. For a fucking ticket you gonna take me to jail.

[Him to dispatcher: I got her under control. She’s in handcuffs.]

Her: What a pussy. What a pussy. What a pussy. You about to break my fucking wrists.

Him: Stop moving.

Her: I’m standing still. You pulling me, goddamnit.

Him: Stay right there. Stay right here.

Her: Don’t touch me. All this for a traffic ticket

13:00 [Officer 1 to officer 2]: Cover me right over here.

Him: This right there says a warning. You started creating the problem.

Her: You asked me what was wrong. I trying to tell you.

Him: You got anything on you person, that's illegal.

Do I look like I have anything on me. This is a maxi-dress.

I'm going to remove your glasses.

This is a maxi-dress.

Come on over here.

13:20 You an asshole. You about to break my wrist. Stop. You're about to break my fucking wrist.

Stop it.

Officer 2: Stop resisting ma’am

If you would stop, I would tell you.

13:34 You are such a pussy. You are such a pussy.

Officer 2: No, you are.

You are dinking around You are dinking around When you pull away from me, you are resisting arrest.

This make you feel good

Officer #2: I got it.

Her: This make you feel good, officer, a female. For a traffic ticket.

Officer #2: I got it. Take care of yourself.

Her: You a real man now. Knocked. Slammed my head in the ground. I got epilepsy you motherfucker

13:56 Him: Good

Officer #2: You should have started thinking about that before you started resisting

14:02 All right. Yeah, this is real good. Real good for a female. Yeah. Y’all strong. Oh. Y’all real strong.

14:09 I want you to wait right here

I can’t go nowhere with a fucking knee on my back. Duh.
And here's it's all over but some more shouting.
14:22 Him: You need to leave.

15:00 Sit up on your butt.

16:10 She started yanking away and then Kicked me, and I took her straight to the ground.

16:20 Officer #3: One thing, you can be sure it's on video.

16:55 Ring got you there?

31:38 Him: She kicked me, started yanking away. I brought her down into the grass. [He did put her down in the grass, which, well, I wouldn't say it was nice of him, but it was much nicer than bringing her down on concrete, which he could have done.]
You know the funny thing? We're only talking about it because she killed herself (or was brutally murdered by correctional officers). This is what is messed up about the rest of the criminal justice system. Bland spent three damn days in jail for failure to obey and also, while in cuffs, kicking and scratching a cop without serious injury. And now she's dead.

As commenter to a previous post put it: "This is a bad job by the trooper... but not the worst I have ever seen." No. It's not the worst I've seen. But, man... it is bad.

July 23, 2015

Meanwhile, "discovery" back in Baltimore

A bunch of people are getting shot. Including kids. An arrest was made.

But more out of the ordinary is this by Keven Rector in the Sun:
Attorneys for six Baltimore police officers charged in the arrest and death of Freddie Gray said in a court filing Thursday that prosecutors either failed to turn over evidence or lied about conducting a thorough investigation into Gray's death.

The evidence already provided by prosecutors is "completely devoid of any information obtained during the course of the State's investigation," the defense attorneys said, leading them to conclude that "either the State is withholding the information from its investigation, or there was no investigation."
I suspect the former. A judge will rule soon.
Prosecutors are required by law to share any "exculpatory" evidence that would help clear a defendant of charges, and the defense said it is "difficult to imagine" that nothing in the state's investigation was "in some way exculpatory to at least one of the Defendants in this case."

Other than one witness interview by an investigator in Mosby's office, the defense attorneys said, they have not received "a single document, witness interview, report, recording, or even mention of a shred of evidence procured through" the independent investigation.

The car-stop game is rigged

Cops can stop a driver for any violation of any traffic rule. And there are a lot of traffic rules. Whren v. United States (1996) is a good illustration of how much discretion the Supreme Court has given police officers. It doesn't even matter what the officers' motive are. (Except for equal protection issues raised by race and intentional discrimination.)

Whren permits "pretextual" car stops. This is when an officer wants to stop a person for some specific reason (usually drugs, but the Court doesn't care what the reason is), and then cherry picks a violation in order to stop the car. I think Whren is a bad decision, but my opinion doesn't matter. As a cop I made pretextual car stops; I played by the rules of the game. And the rules were in my favor. The reason I bring this up is because a similar logic applies to ordering somebody from her car during a car stop. From Whren (but referring to Robinson):
A lawful post-arrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer safety concern that justifies such searches.... "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional."
Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.
But wait.... Isn't a true that officers can always find a minor traffic violation? Yes. And the Court is fine with that.
[Some say] the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop.
The Court slaps this down with vengeance:
We are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide.
The Court goes on to say (and this gets into the legal weeds a bit) that even an "objective" standard of "reasonableness" (from Mimms, 1977) would be too "subjective. And Scalia (who wrote the unanimous opinion in Whren) don't play that subjective game! All police need is "probably cause" of a traffic violation. And that is a very low bar indeed.

Ordering somebody from a car during a car stop is distinct from the "reasonable suspicion" to stop or frisk (Terry v. Ohio, 1968) or the "probably cause" needed to search or arrest (4th Amendment). Officers must "articulate" (Florida v. Royer, 1983) the relevant facts based on the "totality of the circumstances" (Illinois v. Gates, 1983, Burnham v. Superior Court, 1990 & United States v. Arvizu, 2002). The latter issues are connected to the "reasonableness" found in the 4th Amendment. If it's not "unreasonable," the Fourth Amendment doesn't kick in. But controlling people in a car stop is something else. In a car stop, you've already been "seized." Going back all the way to Prohibition (starting with Carroll v. US, 1925), car stops have been a bad place to look for 4th-Amendment rights.

Ordering somebody out of a car (or telling them to stay in the car) is rooted in a concern for officer safety. But officers don't have to justify that order based on officer safety. Permission comes with the car stop. The link between ordering a person out of a car an officer safety is more like your mom saying you should carry an umbrella because it might rain. "But it's sunny," you say. It doesn't matter. You can still carry that umbrella because one day it might rain. And you don't have to wait before opening it.

One comparison is with "search incident to arrest" (all people get searched after an arrest). Search incident to arrest is also based on concern for officer safety. And like ordering a woman for a car, there does not have to be any suspicion regarding the individual. No justification, articulation, or reasonableness is necessary. It's permitted. End of story.

Could any of this change? Sure. If the Court issues a new Landmark Decision. But until then these are the rules we have.

Atwater v. Lago Vista (2001)

Fifteen years ago I published my very first op-ed. Sniff. You never forget your first, even though it was kind of a forgettable op-ed. (I've published close to 30 op-eds since then... jeeze.)

Atwater was a Texas case, no less, in which a woman (Gail Atwater) was arrested for a seat belt violation. Now a seat belt violation wasn't even a jailable offense. But the Court said it was constitutionally OK to arrest someone, even for a non-arrestable offense. I still don't understand this logic. Now these arrests could be prohibited by law or policy (which the Court recommended) but constitutionally the Court said it's OK to arrest people for even the most minor of traffic violations.

Keep in mind this isn't really relevant to Bland's arrest. She was initially placed under arrest for some variation of failure to obey (or maybe not, maybe the officer decided to arrest on the discretion granted to police in Atwater?) and then charged with assaulting a public servant, a felony. Either way, it's worth pointing out that the legal standard for an arrest -- particularly traffic related, particularly coming out of Texas -- is really low.

July 22, 2015

Get out of the car when ordered

Last month I composed this haiku:
don't be so certain
if you say “I know my rights!”
you probably don't
That was cute and all, before Sandra Bland died after being arrested in what was so close to being a warning for a minor traffic violation.

Three(?) times Sandra Bland asserted her "rights." Three times she was wrong. Now she's dead. You do have to put out your cigarette as a matter of officer safety. You do have to get out of the car. During a car stop, you are being detained. The 4th amendment barely applies. This isn't my opinion. These are Court decisions regarding general concepts of officer safety -- far more pro-cop than most cops and the public realize -- that emphasize the phrase "unquestioned police command."

Ordering people out of car isn't like use of lethal force. The latter requires articulation of danger. The Court says car stops are inherently dangerous and thus gives officers the greatest amount of discretion to whatever they see fit. (In a similar way, the Court recognizes the "inherent link" between violence and the drug corner, which gives officers carte blanche to frisk almost everybody on a drug corner, no further articulation of danger required.)

The basic rule, especially in a car stop, is obey lawful orders. Period. Resistance really is futile. Force can used to ensure compliance. I'm not saying this is good. But it is established Law of the Land.

So it pains me to read a legal analysis in a respectable publication that is so patently, even dangerously, wrong.

First let's get the objective facts right. Then we can talk about the subjective issues.

Jim Harrington, director of the Texas Civil Rights Project, should know better. You gotta get this right. He is wrong:
[The cop] does not have the right to say get out of the car. He has to express some reason. "I need to search your car," or, whatever; he needs to give a reason.
Wrong, wrong, wrong.
He can’t just say "get out of the car" for a traffic offense.
Uh, yes, he can! What part of "precautionary measure, without reasonable suspicion" doesn't he understand?

Rarely is the Supreme Court so unambiguously clear. Best I can tell, it goes back to Pennsylvania v. Mimms (1977):
The order to get out of the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible under the Fourth Amendment. The State's proffered justification for such order -- the officer's safety -- is both legitimate and weighty.
[T]he only question is whether he [lawfully detained driver] shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a "serious intrusion upon the sanctity of the person," but it hardly rises to the level of a "petty indignity." [quoted from Terry v. Ohio]. What is, at most, a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.
[T]he police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures.
Maryland v. Wilson (1997) reaffirmed and extended this to the car's passengers as well. Brendlin v. California (2007) re-affirmed again, but added some even stronger language:
We held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that "the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." [quoting Michigan v. Summers] What we have said in these opinions probably reflects a societal expectation of "unquestioned [police] command."
And in case you're still hoping for a loophole:
Our conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question.
And no, cops don't have to tell you anything or explain why. Maybe they should, out of courtesy or politeness or tactics. But they don't have to. They order. You obey. So says the Supreme Court.

Tangentially, not that you asked, this is what bothers me the liberal emphasis on "procedural justice" (See Obama's Presidential Police Report). This was procedural justice. Nothing the cop did was illegal. Could have the cop acting differently? Sure. Should the cop have acting differently? In hindsight, yes. But did the cop have to act differently? No. The law was followed. And now a woman is dead. It's not moral justice.

Also, here's the most complete video:

This reminds me most of all of the Henry Louis Gates arrest. You get into a pissing contest with cops, odds are you'll lose. "Pick your battles," I tell my students. A car stop is great place to keep your mouth shut. Seriously, right or wrong, what do you hope to gain from pissing off a cop?

[My analysis of the car stop is here.]

Oh, Habersham County...

Is there any place in the US that so does more bad policing per capita? This Georgia county has a population of 43,000.

Why oh why do I even know you exist, Habersham County?

Oh, because of this.

And this.

And this.

Well, related to drug raids gone bad, we now have this. A sheriff's deputy was actually indicted:
“Without her false statements, there was no probable cause to search the premises for drugs or to make the arrest,” acting U.S. Attorney John Horn said in a statement. “And in this case, the consequences of the unlawful search were tragic.”
The child has undergone 10 surgeries since being injured.
Maybe the "just the world we live in" is changing a little bit.


Why was Sandra Bland kept in jail for 3 days after her arrest?

July 21, 2015

"System Failure"

From the Baltimore City Paper by Edward Ericson Jr. A quote from an officer:
I can recall Commissioner Batts addressing the officers at headquarters prior to going out on the street. He pretty much patted himself on the back making statements like. "I have been in five riots and I will assure you that this is the real deal." With a potential riot looming, command staff was more concerned with officers not wearing black gloves and looking intimidating. With all this "experience" and beforehand knowledge at Commissioner Batts' disposal, he still led us officers to slaughter. We were ill-equipped, overwhelmed and sent out with no less lethal crowd control weapons or real secondary plan. We were given the order to stand down, yet we could not retreat or defend ourselves. It wasn’t until after all of the officers were injured that we received riot equipment.
Then last week Connor Meek published an Op-Ed in The Sun about his experience with police after he was mugged for his bicycle on the Gwynns Falls Trail. He walked to the district police station and was told by an officer there that it was closed after 7 p.m., then told he was at the wrong district. Even as the department scrambled and ordered districts to remain open 24 hours, one of the officers Meek had dealt with took to Facebook to chastise him, saying essentially that he was in public near dusk and so should not have expected to be safe. The Facebook posts quickly disappeared after City Paper called attention to them.
And this:
This year’s homicide “clearance rate”—that is, the percentage of murders in which police arrest someone and charge them with the crime—is under 40 percent. Officials at the July 6 press conference said the figure was above 60 percent earlier this year, but over the past four or five years it had averaged in the mid-40s, which was characterized as “just above average” compared to other cities that report the figure to the FBI.

"In a Dream, I Saw a City Invincible"

That's the motto of Camden, New Jersey. It's from a Walt Whitman poem. A comment to a previous post made me think more about Camden. I've been through there a few times. Caught the River Line. Looked down from the PATCO Speedline. And I know a lot of my old 78s are from Camden. That's about it.

I wish I knew more about what's going on there with policing. My knowledge, very limited, consists of the following:

A) There were issues.
B) The police department was basically disbanded; there was some police-union busting.
C) Murders were way down in 2014.
D) Obama said nice things about what was been going on there recently.
E) There are still issues.

That's it. I wish I knew more. What happened to the cops who were on the job then? Who are the cops on the job now? Let me know.

[Update: a 2018 post.]

Checking just now, murders in Camden were way down in 2014: just 33 compared to 58 in 2013. That's a great reduction! The 2015 pace seems in line with 2014. But this is a city with just 77,000 people. 33 murders? It's not great. Even by violent US standards, a city with 77,000 peoples should have maybe 4 homicides a year. Not 33.

The other night I was talking to a friend of mine. She had just received a #BlackLivesMatters bracelet and said I could get one, too. I confessed, a bit apologetically, that I won't wear a #BlackLivesMatters bracelet. It's not that I don't care about black lives. It's because I don't agree with the ideological baggage that goes with the hashtag. I work with police. #BlackLivesMatter, in my humble opinion, sees police as the problem. [If that logic doesn't make sense and you're liberal. Let me say this. I'm not wearing a "pro-life" bracelet either. And that despite the fact that I absolutely love life.]

It's the "petite intelligentsia" that worry me. (Yeah, I'm coining that term, damnit.) What bothers me is the public shaming of people who "don't get it." Maybe O'Malley doesn't "get it," but does that make him "not human"? Come on, now.

The Left has a horrible tendency to cannibalize itself. (Sanders isn't the problem, Ted Cruz is!) Remember that great peace protest at the 1968 Democratic National Convention? (I don't. I wasn't born yet. But thank God liberals helped get Nixon in office. We never had Humphrey to mess things up.)

From the fringe and not so fringe left, there can be no acceptable intellectual disagreement. If you don't agree with the politically correct movement of the moment, the only acceptable form of disagreement is silence.

I'm not willing to pass the progressive ideological linguistic litmus test. While trying to talk about real police issues on CNN, I was berated for using the word "ghetto" to describe, well, the ghetto. (See pp 16-17 of Cop in the Hood if you want a more articulate defense.) I've been interrupted for using the word "riot" to talk about, well, a riot. Most recently, I was actually reproached on NPR for using the word "criminals" to describe, well, people who commit crimes. My message to the Left: stop this!

When Batts got fired, somebody asked me, "But what does this do for the 'reform' movement?" I think my answer was something none-too subtle like, "If Batts is 'reform," fuck 'reform'! [If you make your position clear, reporters will paraphrase a bit.] I don't care what Batts labeled himself. He wasn't a reformer because he failed at reform. Batts made the problem worse. You don't get credit for what you want to do. You don't get credit for what you should do. You get credit for results."

I want to improve policing. And right or wrong, I see #BlackLivesMatter, the movement, not the concept, as more into blaming police than saving black lives. Maybe that's the point. But then pick a more accurately descriptive hashtag.

The other day I received a flyer (from a young white woman at a George Clinton concert in Queensbridge Park): "Stop Police Terror" it said. Gosh, I'm not for police terror. My eye jumped to the bottom: "Stop Mass Incarceration Network." What's not to like? I am against mass incarceration. I wrote a book against mass incarceration! Great cause. Except for this:
The powers-that-be have continued to unleash their cops to kill and brutalize people.... These killings are the spearpoint of an overall program of suppression that includes mass incarceration and all its consequences. This program of suppression especially targets Black and Latino people and has genocidal implications.... Which Side Are You On?
Well, they're having a march in NYC on October 24, if you'd like join. But given these facts, I'm definitely on the side of police.

Is it not possible for one to think there are problems in policing without believing police are evil? You need to let people argue the former without preaching the latter. I want police to kill fewer people. And I think the best way to get police to kill fewer people (blacks included) is to, well, get police to shoot less often.

So if you take the macro lessons of history and racism and violence and conflate that with individual police incidents today? Well, maybe history will prove you right... but I doubt it. Focusing on police as the problem rather than the solution will result in more black deaths (see Baltimore post-riot).

And if you think this "seasonal uptick" in Baltimore homicides is a small price to pay for a step toward a better society? Well, personally I think you're morally and intellectually delusional. The road to hell is paved with good intentions. But hell on earth is paved with people who do the wrong thing and say, "gotta try harder!" (Put that on your inspirational poster.)

But back to Camden.... Now I understand that these murders are, well, crimes. In theory, the state investigates crimes and then arrests and prosecutes the offender. In theory "justice" is served (which happens about a third of the time). But if a cop kills you, there's little recourse. It is different when the state takes your life. This matters. This matter a lot. I do understand. But still, just look at this part of Camden. These little flags are murders since 2003. What are we going to do about it?

Let me zoom in on just a few blocks. And these are really small blocks. From top to bottom is half a mile. This whole area is about one-fifth of a square mile.

You might not believe what a small area this is. So here's google satellite view so you can see individual homes.

I want you to see the individual homes. I want you to understand that people are born here, grow up here, live here, and die here. This is America, too.

Atlantic to Sheridan on Louis Street? 2,000 feet and 20 homicides. How many people even live there? I don't know. A few hundred? There have been about 24 homicides within a few hundred feet of Bonsall Elementary School. Gosh, I wonder why their test scores are slightly below average? Must be the "soft bigotry low expectations."

In Camden there's hardly a corner where somebody hasn't been murdered. And #BlackLivesMatter says murder at the hands of police is the biggest problem? Get real.

Let's talk black lives. Let's talk War on Drugs. Let's talk mass incarceration. Let's talk racism and a whole class of people left behind by a free market and political system that couldn't give a damn. Let's talk good policing. Let's talk police abuse. But you can't demand intellectual acquiescence as a precondition.

As to police in Camden? I got no clue. Let me know what's going on. But more importantly, tell me how we're going to make things better?

Updated homicide numbers
2018: 22
2017: 23
2016: 44
2015: 32
2014: 33
2013: 57
2012: 67
2011: 52
2010: 39
2009: 35
2008: 53
2007: 45
2006: 33
2005: 35
2004: 49

July 19, 2015

Cue happy riot montage scene!

Apparently -- and I didn't know this -- Baltimore is actually a role model for other cities in how to control civil unrest.

Baltimore Mayor Stephanie Rawlings-Blake didn't exactly jump the shark right here. She jumped the shark a long time ago. But this is becoming insane. She actual said this:
And while you say it's under negative scrutiny, when I go around the country and I look at the fact that other cities have burnt for weeks -- Baltimore itself burnt for weeks during the riots of 1968 -- we were able to control the unrest and riots to a few hours on one day. There are a lot of cities right now that would love to have that record.
And just which cities are those, Ms. Mayor? Madam Mayor is perhaps crazy (does she even believe what she says?). She is certainly incompetent. She is also dead wrong.

At the latest, the riots began at 4:44pm on April 27 when the Rite Aid on North Avenue was looted and then set on fire. So, by her logic, everything was basically OK after a few hours. A record a lot of cities would "love to have"! What's a few? Four or five hours? So can we can still catch a late show at the Senator Theater?

The riots were not over by midnight. The city called down in the early morning hours. The riots weren't really even over the next day. The national guard left and the curfew was lifted on May 3rd.

July 18, 2015

Cops rat out cops. Cops get punished.

Al Baker in the Times:
Nineteen New York City police officers assigned to a station house in the Bronx face disciplinary action after being charged on Friday by department lawyers with wrongdoing, including incorrectly classifying crimes and downgrading criminal complaints, the police said.

The administrative charges against the officers, from the 40th Precinct, follow an internal audit that uncovered 55 crime reports that were improperly processed during a four-month period last year, the police said.
It's worth observing that a cop called Internal Affairs to rat out other cops for their misdeeds. The cops investigated and did an internal audit. The investigation concludes there is a problem, and some action is taken.

The system may not be perfect (it isn't). And lives were not at stake. But in the end, this is one way the system is supposed to work. Sometimes it sort of does.

July 17, 2015

Bad shooting in Gardena, California

Usually when I get called from the media about a police-involved shooting I expect I'm going to have to explain how a reasonable police officer might perceive a potentially lethal threat.

Not here.

This is a bad shooting:

The killing happened two years ago. The video was just released. The officers faced no legal consequences. The city paid $4.7 million. The victim, Diaz Zeferino? Never heard of him before yesterday:
Three media outlets pushed for its release.... A judge granted their request, saying it was in the public's interest to know why that city money was being spent.
Why are these cops so afraid? Why it is so obvious to me, formerly a reasonable police officer, that the guy is holding a hat and thus isn't holding a gun?

Might this help demonstrate why citizens of California are 50 percent more likely than the national average and almost 4 times more likely than New Yorkers to be killed by police.

July 13, 2015

The Kelly Legacy of Micromanagement

Cops would complain about this all the time when Kelly was chief. After a decade in power, the stories of his micromanaging were legendary. This is the kind of stuff the public never really understands or appreciates, even when it dominates internal police culture.

A long overdue article, from the veteran Murray Weiss at DNA.info:
An aide approached [Bratton] with a request for the transfer of “a single police officer.” The aide said the move required his signature and that the NYPD’s “Office of Management and Budget” had already been involved.

[Bratton] was incredulous.

“The transfer generated between nine and 14 pages of paperwork,” the commissioner recalled.
There had been a fatal shooting.
Bratton asked what [Deputy Inspector Raul Stephenson] was going to do to prevent the violence. The commissioner was stunned at what he heard.

Stephenson explained that he wanted to shift “Impact Zone” officers from their mandated posts to the part of the precinct where the crew resided.

But he said he first had to put the request in writing and send it to his Borough Commander who, in turn, would send it up to the Chief of Patrol’s office where it would be forwarded to the commissioner’s office at Police Headquarters for final approval.

“Can you imagine how long that request took to go up the chain of command and then back down the chain before the inspector could do what he wanted?” Bratton said.

“Something was happening in real time and our commander, who knows who is responsible, was unable to move personnel.
Sure this is a bit of fluff piece, and it's never that simple. But it's exactly what can make a difference within a department.

Headline you won't see:

Police officer line-of-duty deaths are down 15 percent this year. Gunfire deaths are down 38 percent.

Odd, because a lot of reporters were calling me last year when the number were up.

"Is it Ferguson?!" "Is it Obama?!" "Are criminals less brazen?!" "Has training gotten better?!" "Are criminals worse shots?!"

[Silence of me staring at non-ringing phone]

That said, I thought I had a rather nice discussion on the Larry Mantel show the other day. Talking about the potential trade off between less incarceration and more crime.

[Near silence of me picking up old-fashioned phone to see if the dial tone is working. It is.]

For the record, just like I said last year, I don't think it's a big deal.

"Dear Sir or Ma'am..."

In late May Rolling Stone had a poorly conceived article about Baltimore police and riots. On May 30th I wrote this letter to the editor:
I applaud Matt Taibbi ("Why Baltimore Blew Up") for keeping the focus on Baltimore after the nation's attention seems to have shifted elsewhere. But Taibbi seems more intent on attacking police and Broken Windows – something never tried in Baltimore – than the crime and police issues that uniquely affect Baltimore.

If Baltimore police were to blame for the riots -- if overpolicing and too many arrests caused the violence -- why didn’t the "uprising" happen back in 2003, when Baltimore arrests peaked? (Tiabbi is in error when he says Baltimore arrests peaked in 2005.) It seems worth mentioning, at least in passing, that arrests have dropped every year since then, 65 percent in total.

If one were to put facts before anti-police ideology, one might blame the riots and subsequent increase in homicides on incompetent political leadership and the underpolicing of criminals. Baltimore's mayor and police commissioner, in particular, stand out for their incompetent handling of events after Freddie Gray’s death in police custody. Regardless, I find it odd that an article about policing and riots in Baltimore omits any mention of criminals and fails to quote a single Baltimore City police officer. I suppose it's easier to simply blame Baltimore cops, but the next time I urge Taibbi to perhaps speak to a few.
They didn't publish it.

"Albuquerque to pay $5 million in death of mentally ill man shot by police"

Reports the LA Times. This came about after a very bad shooting.
Twenty-eight people have been shot to death by Albuquerque police over the last five years, a per capita rate eight times that of New York.

How was your weekend?

300 Men marched against violence In Baltimore. I guess since was no looting or violence associated with the march, it did not make national news.

But apparently the criminals weren't listening. "At least 21 people were shot since Friday," reports the Sun. To put it in perspective, as Justin Fenton did, that rate of violence would be 92 shot in Chicago. Or 279 people shot in New York City. Now that would be a story.

The level of carnage, the lost and broken lives, is almost impossible to comprehend if you're not there. That doesn't mean we shouldn't try.

July 10, 2015

"The Rise and Fall of Anthony Batts"

Great piece by Simone Weichselbaum in the Marshall Project about Batts and his problems in Baltimore.

Good piece in Vice about the problem of "superstar" police chiefs.

July 9, 2015

Post-Riot Baltimore: Arrests Down and Gun Crimes Up

Total arrests per day are in orange. Firearms crimes per day are the lower lines, in blue.

(Click to embiggen)

The bottom axis represents the numbered day of year. 1 is Jan 1. 178 is June 27th. The riot was on April 27, day 117.

This was partly inspired by a frustrating discussion on the radio yesterday in which one person was trying to assert that Baltimore hasn't seen any increase in violent crime related to the riot and its aftermath. What world is he living in?"It was up before the riots." Yeah, a bit. "It's seasonal. Shootings go up in warmer weather." Not this much, they don't! (And shootings were actually down in June compared to cooler May). But then the same guy also insisted there was no riot. (It was, of course, a "rebellion.") Methinks his ideology may be trumping reason.

I like to think that facts matter, especially when lives are ending. So here we ago again....

I've already looked at the massive increase in homicides (one more person each day is being killed in Baltimore post-April 27). This time I thought I'd look at gun crimes, which correlate very well with homicides, just to get a bigger N (more cases). And I excluded outlier arrests numbers from April 27 and 28 (which were 178 and 143, respectively).

These data go up to June 27, 2015. Before the riots, there were 3.4 recorded gun crimes per day (those classified as shootings, homicides, and aggravated assault with firearms) and 87 arrests. (Back in in the 2000s, there were roughly 275 arrests per day, which is worth noting.)

After the riots, there were 7.7 daily gun crimes and 60 arrests. That actually less of a decline in arrests than I suspected. But it's still a one-third decrease. Gun crimes are up 118% post riot.

The good news, limited though it is, is the current trend. Arrests are inching up back up to "normal" and gun crimes are declining. While of course correlation doesn't automatically mean causation, I beg anybody to offer an alternative hypothesis here. This social scientist is willing to assert cause and effect.

Here are the number this year compared to last year:
2014 pre-April 27: 3.4 gun crimes per day and 114 arrests.
2014 post-April 27: 4.9 gun crimes per day and 117 arrests.

2015 pre-April 27: 3.4 gun crimes/day (identical to 2014), 87 arrests.
2015 post-April 27: 7.7 gun crimes per day and 60 arrests.
So we might have expected a 40 percent increase in gun crimes after April 27 as a seasonal factor. We saw a 126 percent increase.

(It's worth pointing out that I'm not saying arrests are good just for their own sake, but they can be a good indicator -- a proxy -- for more general discretionary crime-preventative proactive policing.)

Source: Baltimore Open Crime data.

"My own private Baltimore"

This piece by Tim Kreider is pretty fabulous.

It includes John Waters' great line: “NYC is full of normal people who think they’re crazy; Baltimore is full of crazy people who think they’re normal.”

And "Bananas & hardware for sale at the bar" actually only narrows things down to a half-dozen locations. I still use the hair clippers I bought at a bar on Eastern Ave 15 years ago. But I realized that bars sold hardware because there were no hardware stores selling hardware.

And: "White Baltimore, which, if mapped, would look like a tenuous network of interconnected nodes laid over the terra incognita where the majority of the city’s inhabitants lived their lives. That other Baltimore, hungry and disenfranchised and heavily armed, written off by politicians, pushed around by the cops and called animals on the Internet, was always a block away."

And finally: "Even though NYC is where I belong now, I still feel at home in Baltimore in a way I will never feel anywhere else."

"If what the FOP reported is wrong... prove it."

That's from the Sun. The FOP riot report is good. Well done. And based on everything I've heard from police officers, true. It's proofread and a surprisingly well put together package (the whole "issue" and "recommendation" and "references" thing).

Keep in mind this is coming from a local FOP chapter that misspelled my name on my membership card...

It's actually rare I find myself agreeing wholeheartedly with police unions. (See, for instance, here and here and here.) But this isn't the first time I've been impressed with the minds and writing ability of Baltimore's FOP Lodge 3.

I'm not going to summarize their report. (If you care enough, just read it.) Overall, it's a very damning report of poor police leadership and a police organization that let down both its workers and the citizens of Baltimore. But I will say this: if you instinctively don't believe anything coming from a police officers' union, just pretend the report was written by the local chapter of the ACLU or something. You'd be surprised how much of this report can pass that test.

Here's what the Sun has to say [I've added selective bolding]:
The FOP has had a legacy of tension with Mayor Rawlings-Blake.... It is in that sense not necessarily the ideal entity to take on the task of analyzing how she and her police commissioner, Anthony Batts, handled an event that left many officers literally and figuratively wounded. The mayor pounced on that history to discredit the report as "a trumped up political document full of baseless allegations, finger pointing and personal attacks." (Speaking of personal attacks, the statement accuses the FOP of "choosing to be their lesser selves.") But the assertions the union makes about what instructions officers were given and how they were trained and equipped are too specific and detailed to be dismissed so easily.
And this (keep in mind this is from the Sun and not the FOP):
The FOP's report is based on interviews with police who were on the front lines, focus groups and surveys.... But it is rich for the mayor's spokesman to tut-tut that "the FOP continues to issue baseless and false information instead of working with us to find solutions that will protect our officers." The FOP filed a Public Information Act request for reams of information that could have shed some objective light on the situation — tapes of radio transmissions, emails, text messages and the like — but the city has handed over very little of it.

This report has its limitations and biases, but more than two months after the fact, it's the only report we've got. Neither the police nor the mayor's administration have issued anything like a comprehensive assessment of what happened on those nights of violence, and a third-party review by the Police Executive Research Forum is only slated to begin today. If what the FOP reported is wrong, Mayor Rawlings-Blake and Commissioner Batts need to prove it.
Oh.... did I hear the Sun just go "snap"?

But seriously, bad leadership has consequences. There are problems with the whole Rawlings-Blake administration. She is not up to the job of running Baltimore.

It's also worth reading this Baltimore Sun editorial in its entirety. (Note the story of the stolen bike and the closed station. In covering all these events, kudos to the Sun and their soon-to-be Pulitzer-winning ace reporters for living up to the paper's "Light For All" motto.)

[Update: I just learned the FOP report was put together by a consultant firm. That makes sense. Still though, kudos to the FOP for knowing their limitations and not trying to do it in-house.]

July 8, 2015

The next boss

The next Baltimore police commissioner really needs to be home-grown. Why not Lt. Col. Melvin Russell?

Batts is out!

I just heard the news.

"Conservator of the peace"

"Conservator of the peace," you say. I was skeptical about how/if Mayor Rawlings-Blake could legally declare a curfew in Baltimore. Turns out she can:
Circuit Judge Paul Alpert determined that a curfew was within Rawlings-Blake's powers as a "conservator of the peace."

The powers of that title are not clearly defined in the city charter or state law, but City Solicitor George Nilson has said there was "substantial supportive authority" for a conservator of the peace to impose a curfew.
While the curfew could be imposed, the judge dismissed the charge because he found that there was no established penalty for a curfew violation.
Baltimore Deputy Public Defender Natalie Finegar argued that only Gov. Larry Hogan had the authority to impose a curfew, and the mayor needed City Council approval.

During the riots that followed the assassination of Martin Luther King Jr. in 1968, Gov. Spiro Agnew imposed a citywide curfew at the request of Mayor Thomas D'Alesandro III. The Maryland Court of Appeals, the state's highest court, later ruled that once the governor declared a state of emergency, "control over the citizens of Baltimore, in our opinion, lay in the hands of the governor of the state."

But a curfew imposed in 1979 by Mayor William Donald Schaefer after a massive snowstorm was upheld by a district judge, who found it was part of his powers as a "conservator of the peace." People arrested for violating that curfew were sent to jail.
Legally and substantively, is a curfew the same as martial law?