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by Peter Moskos

August 15, 2016

The DOJ is Right (1): Too many illegal stop and searchs (though sometimes just without written articulation)

Too many officers in Baltimore conduct searches without being able to articulate probable cause. Too many people arrested for bullshit reasons illegally. This is wrong. It's been happening forever. It needs to change. Maybe this DOJ report will bring about this change.

That said, you can arrest someone for bullshit reasons legally. Bullshit means minor and perhaps to prove a point, but it's not illegal. And sometimes people need to spend the night in jail whether because they're threatened their mother, squatting on a stranger's stoop, or ignore an officer's lawful order to desist from criminal behavior (but behavior you don't have probable cause to arrest them for). The charge can be loitering (Baltimore's go-to), disorderly conduct (NYC's go-to), disturbing the peace, trespassing, failure to obey, open container. Or any even more minor violation (littering, jaywalking, spitting, cursing, it doesn't matter, as long as it's on the books) combined with "failure to provide identification." (It's much harder to arrest somebody who does carry ID, because you can't play the BS-ticket-you-don't-have-ID game.)

Such minor arrests do not and should not be prosecuted. The argument that arrests are bad because charges are dropped is absurd. As I wrote:
Along with bureaucratic BS (prosecutors march to a much different drummer than cops), the standard for conviction is "beyond a reasonable doubt." The standard for arrest is "probable cause" (which isn't even "more likely true than false." So of course good legal arrests will be dropped.

On top of that, most low-level offenses are abated by arrest. You don't actually prosecute people for loitering and trespassing on a stoop. A loitering arrest isn't bad because it's not prosecuted. It's never prosecuted. And for such minor offenses, officer have pretty low motivation to write a good report, since it really just doesn't matter.
What I don't get is so many illegal searches and arrests could be done legally, if the officer was clever and knew how to write. But where the report goes wrong is assuming that arrests and searches are evil because an officer didn't articulate good cause in the arrest report. Much of the DOJ describes is just bad writing. That or officers not giving a damn about wasting time on a report for some BS arrest that is, in fact, abated by arrest. Cops' inability to write is a major problem. But they some cops don't learn good writing skills in high-school. There's no language or writing test to become a police officer. Maybe there should be.

3 comments:

David Madden said...

Amen! I see this all the time as an FTO. What are they teaching kids in high school nowadays? I spend way too much time proofreading my trainees' reports for simple grammatical errors. Even the verbally articulate rookies sound like morons when they try put the simplest ideas onto paper. A well written, articualte statement of probable cause that spells out all of the elements of the charges being filed will almost always keep your butt off of the witness stand and make you a member of the 9:01 club(stealing a line from your book). I hate redundant and pointless paperwork, but the SPC should be considered sacrosanct. It justifies you stripping a person of their freedom and it needs to be right, both factually and grammatically.

Liberaltarian . . . said...

Failure to write a report to fit it within some legal box is at most a superficial problem that doesn't begin to get at the real problem. People don't have a problem with police because they're not writing their reports correctly. People have a problem because they're getting arrested for chickenshit reasons (regardless of whether it can or cannot be legally justified by an articulate officer). Getting arrested is a BIG DEAL that has serious consequences. It's not something a cop should do lightly.

Peter Moskos said...

Getting arrested can be a bigger deal than many cops realize (less so if it's number 17). Arrests can effact jobs, relationships, housing, Pell Grants.

BUT... the DOJ absolutely has a problem with poor writing, because they're associating this with previous unconstitutional police behavior.

I welcome a debate on low-arrests. That is not how the DOJ report wishes to engage.