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by Peter Moskos

May 26, 2016

Burgled in NOLA

We were burgled while out eating dinner in New Orleans.

Not that I knew it then, but right before we left the home, somebody in the St. Roch League of Non-Aligned Residents reported:
A 30ish black male about 5'6" wearing a blue t shirt and gold shorts on a light colored bike (off white, I think) was hopping fences on N. Villere and Elysian checking out people's back yards. I just saw him go down Marigny toward St. Claude. Thought I'd let y'all know.
(Our neighbor, who was home, told me about this later.)

Could be worse, thinking of all the things he didn't steal and the greater mess he could have made (like, he didn't leave a pile of shit on the floor). The only thing that seems to be gone is my (new but cheap) laptop.

Could be better, too, needless to say.

There's always some irony when I'm on the other end of police services. And now, like any citizen, I can bitch that it's been over three hours since I called 911. Some good research shows that a long response time doesn't piss people off as much as waiting around not knowing if cops will ever show up. I can confirm that. I guess I'll go to bed.

This is probably all I'll post till I'm back home next week.

For the record, I would have liked police to stop this guy before he came in through our window.


Update: After an 8(!)-hour wait, NOLA police service was most excellent. The officer was a thoughtful New Orleanian with 19 years on. We investigated. We waited for crime lab. We chatted about policing. We learned two neighbors also got hit. The officer read my op-ed in the Sun. In this house, crime lab got prints and DNA off a can of energy drink the burglar took from the fridge, drank half of, and left on the counter. And they also prints from the window that allowed entry. Another neighbor has a camera on this building, so there should be nice video of the guy coming in. All in all, were it not for the actual burglary, it was a very pleasant way to spend a couple hours.

It's amazing how much stuff wasn't taken (Zora's computer, camera, NYC house keys, power tools). And luckily, right before we left for dinner, I went back inside and locked our bikes together (my very expensive folding bike and Zora's rental) saying, "well, this will make it harder for a burglar to walk away with these."

The only part that really bothers me is an 8-hour response time. I called 911 at 01:43, again at 03:24, and a cop showed up at 09:45. Seriously? I wouldn't have minded if they told me when I called the first or second time, "an officer will be there between 9 and noon tomorrow." No problem. I'll go to bed. There's something be said for waiting for light, anyway.

But if you say an officer in "on the way," a reasonable person might expect an officer to be, well, on the way. Are we supposed to wait up? I did, for far too long. Are we supposed to disturb the crime scene to go to bed? Eventually we did. Should I close the window in which he came? (I had to, after the world's loudest morning mosquitoes wouldn't let me sleep even after I gave up waiting.) There has got to be a better way.

The other weird thing is the burglar riffled through the books. Burglars never do that.

Update!

May 25, 2016

"Nero Should Never Have Been Charged"

Writing in the Baltimore Sun, co-authored with my friend, Leon "HL Mencken" Taylor:
Mr. Nero, who had but a tangential role in Gray's detention, should never have been charged. He committed no crime.
...
The prosecutor, in her desire to achieve "justice" for Freddie Gray, wanted somebody — anybody it seems — to pay for his death. But justice doesn't work that way. And the ill-conceived effort to pin the blame on these six officers has at best distracted from and at worst exacerbated Baltimore's most pressing problems.
...
Let us prevent the next prisoner's death. There are safe, modern, camera-equipped prisoner transport vehicles. Replacing Baltimore's entire prisoner transport fleet would cost less than the payout to Gray's family. But Baltimore either lacks the money or leadership to invest in them.

The trouble is, the political leadership in Baltimore is more interested in votes than addressing the deeper issues of the poorest Americans.
...
The mayor taps anger fueled by failed social policy and malign neglect. But we've never seen her or any Baltimore politician ride in a police car to see what officers see every day.
...
Politics and policy put Freddie on that drug corner and also gave police the task of moving him off of it. The failure of Freddie Gray is a collective failure. So why does "justice" depend on convicted police officers? Baltimore elected officials need to focus on the city's real problems, which do not take legal acrobatics to explain.

After the April riots, the murder rate doubled. Last year in Baltimore 304 black men — 131 more than in 2014 — were murdered. That's roughly one in every 220 black men aged 15 to 35 murdered in one year. Think of those odds. Americans shouldn't have live and die like this.

There are actual criminals in Baltimore. Those who pick up an illegal gun and pull the trigger to kill a fellow man. Police deal with them every day. So when criminals are seen as the victims and police are made out to be the problem, it's as if the inmates have taken over the asylum.

May 24, 2016

"Baltimore's Dangerous Prosecutors"

The latest from Page Croyder. It's all good, but this is the part that clarified what exactly was being argued:
They argued to trial judge Barry Williams that in the 2-3 minutes after Gray was handcuffed, but before the illegal knife was found on him, Nero, by not instantly finding out why the supervisor wanted Gray detained, committed a crime. In other words, the mistake they made was neither in the chase (for which they had reasonable suspicion) nor in the arrest for the knife (for which they had probable cause.) In was in the extremely short delay before finding the knife in which they hadn't pulled out all stops to find out why they were asked to detain Gray.
And the ominous (yet justified) conclusion:
So, Baltimore, when one of your citizens is a victim of crime, don't be surprised if the police do nothing more than take a report. Detaining a suspect puts them in legal jeopardy under the Mosby regime. And don't expect the prosecutor's office to help you out, either. Their leaders are either watching the Gray trials (Mosby) or spending the first two years of their administration inventing new crimes for which to convict its police officers.
But click through and read it all, especially if you haven't been following as closely as you should have been.

"The Chop Leaves the City"

Here is one person's decision to pack up and leave the city. It's well worth reading. It's a short move, two miles north, to the burbs. And he's taking his tax dollars with him. This is especially worth reading if you think the biggest problem facing Baltimore is racism and policing. Or if you're privileged enough to live in a city where you get to gripe about hipsters, gentrification, and racism and policing in Baltimore.

Yes, it's all about crime. But it's also about bad parents and a political leadership that doesn't get it.

May 23, 2016

Officer Nero Acquitted on all Charges

Good. Judge Williams used the law. There was no case. I don't find this surprising. But then I've learned to be surprised by these absurd trials.

And I was speaking to a friend here in New Orleans who, naturally, assumed the officers are guilty. She hadn't read my primer and had no idea this trial had nothing (except politics) to do with Freddie's death.

Judge Williams ruled that Nero had nothing even to do with Freddie Gray's arrest.

Update: I generally discount the "anti-cop mainstream media" hype you hear from a lot of people. But I just received a call from a station out west and told them what I thought about the verdict. I was told, "I totally agree with what you're saying, but we're looking for a more 'agnostic' guest." I'm not sure whether "agnostic" mean ignorant or biased. But facts be damned, they won't be satisfied until they get "both" sides of this story equally represented. It's how false narratives are built.

"Man Seen Wheeling Body on Staten Island Is Arraigned in Wife’s Murder"

It's not so much the wheeling a dead body on a metal dolly that gets me. It's the how do you get arrested 52 times by age 31?

May 22, 2016

Who Dat?

I'm in New Orleans, not that you asked. But if that means anything to you, let me know! (Be smart and figure out how to contact me via email, twitter, whatsapp, carrier pigeon, or comment). I'll be here through the 29th, with a bicycle and an airbnb place in St. Roch. (Yeah, a three short blocks from a murder last week, but I don't plan to go in that direction.) And though I do have some work to do, I actually have a lot of time on my hands.

May 18, 2016

Make misdemeanors great again!

Shoplifting has gotten a boost in California. From the AP:
Shoplifting reports to the Los Angeles Police Department jumped by a quarter in the first year, according to statistics the department compiled for The Associated Press. The ballot measure also lowered penalties for forgery, fraud, petty theft and drug possession.
...
The increase in shoplifting reports set up a debate over how much criminals pay attention to penalties, and whether law enforcement is doing enough to adapt to the legal change.
It's so rare (but more common than many people admit) to see good direct cause and effect in criminal justice. My general belief is that people don't give a damn a potential penalty and instead commit crimes when they think they won't get caught. But I could be wrong.

I remember a conversation on the street, back when I was a cop. From my notes:
Had a weird talk with a guy who was suspected of pointing a gun out a car window. No gun was found. The guy said, “I don’t have a gun, I’m a convicted felon!” I asked him for details. He said he did strong armed robbery, no weapon involved other than hands, got four years.

I said, you didn’t do that in Baltimore, cause you won't get 4 years for yoking [unarmed robbery] in the city. Turned out it was in the county. He said the max was seven years. He was expecting 2 years for a four year crime: “I wouldn’t have done it if I knew it was seven years.”

Let me get this right, you’re saying you weighed the severity of the punishment with the how-useful-is-the-crime?

“I always weighed the punishment.... I was [also] copping for others, but they didn’t send me any commissary money. Fuck that, if they won’t look after me.... So now I’m trying to go straight.”
Back in California:
Prosecutors, police and retailers ... say the problem is organized retail theft rings whose members are well aware of the reduced penalties.

"The law didn't account for that," said Capt. John Romero, commander of the LAPD's commercial crimes division. "It did not give an exception for organized retail theft, so we're seeing these offenders benefiting and the retailers are paying the price."
On the other hand:
Adam Gelb, director of the public safety performance project at The Pew Charitable Trusts, disputes those sorts of anecdotes.
...
His organization recently reported finding no effect on property crimes and larceny rates in 23 states that increased the threshold to charge thefts as felonies instead of misdemeanors between 2001 and 2011. California raised its threshold from $400 in 2010.

"It's hard to see how raising the level to $950 in California would touch off a property crime wave when raising it to $2,000 in South Carolina six years ago hasn't registered any impact at all," Gelb said.
My first thought is that seems like ideological wishful thinking. It might be hard to want see how... but you can try harder.

But here's what I don't get. Why can't police investigate serious misdemeanor? (Hell, in Baltimore they're putting cops on trial for minor misdemeanors.)

The article concludes:
For his part, Lutz, the hobby shop owner, has provided police with surveillance videos, and even the license plate, make and model of the getaway vehicles.

"They go, 'Perry, our hands are tied because it's a misdemeanor,'" Lutz said. "It's not worth pursuing, it's just a waste of manpower."
But why should a legal and semantic redefinition "tie police hands"? Police could investigate; they are choosing not to investigate because the crime -- with the same dollar amount as last year -- has been redefined a misdemeanor. That's more a police choice. And maybe it's not the right one.

[Though in some states (I don't know about California) the rules are different and many misdemeanor crimes need to be viewed by a cop for a cop to make an arrest. That said, shoplifting is an exception.]

Leaving aside the specifics, I think more felonies should be misdemeanors. Misdemeanors are crimes, too. These days almost everything can be a felony, and that's not right. Felonies are supposed to be life-changing citizen-disqualifying kinds of crime. Not run of the mill drugs or non-violent theft. Maybe sometimes people should get a year for a serious misdemeanor instead of a PB&J (probation before judgement). The problem isn't that a serious crime is only a misdemeanor; the problem is we don't take misdemeanor's seriously.

May 17, 2016

Illinois v. Wardlow (2000), the Good Parts Version

For all ya'll too lazy to read Illinois v. Wardlow (2000), here is the key part that relates to the constitutionality of chasing suspects who run from a drug corner. The Freddie Gray scenario is almost exactly similar to Wardlow. (I've selectively bolded and also removed the citations, but you can click through for the court cases and such):
In Terry v. Ohio, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop....

[Officers were] converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a "high crime area" among the relevant contextual considerations in a Terry analysis.

In this case, moreover, it was not merely respondent's presence in an area of heavy narcotics trafficking that aroused the officers' suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight -- wherever it occurs -- is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. ... The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.

Such a holding is entirely consistent with our decision in Florida v. Royer, where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. And any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.

Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the Fourth Amendment.
It's rare that one decision so perfectly mirrors a current case. And this makes it all the more absurd that there's any question about the police officers' stop of Freddie Gray.

Also, it's worth pointing out, as I did in Cop in the Hood, that Wardlow and Terry are both great examples of how those who live in the high-crime ghettos are granted less constitutional protection than those who live in "nice" neighborhoods.

Police in a poor black neighborhood can (legally) get away with things that would never fly in a nice part of town. There is is a different constitutional standard based on geography and crime (and hence race). Of course people aren't running from drug corners -- or shooting each other so much -- in neighborhoods without public drug dealing. Crime and "commonsense judgements" do matter. But at some level it's still kind of messed up. It reminds me of Anatole France's famous line: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Let's all put our thinking caps, everybody

Why in the world are people reporting on last year's data when we have current data at our fingertips? Does reality only happen after numbers are published on DOJ letterhead?

NBC News reports:

Number of Police Officer Killings Drops, Reversing 2014 Spike.

Do reporters not have the wherewithal to see what the current situation is? It is but a mouse-click away. Officer Down Memorial Page keeps an excellent running and historical tab.

This year's data show killings are up (albeit with a small n of 17). We're on pace for 45 cops being shot and killed this year, and that would be much more than last year, and similar to the 47 shot and killed in 2014.

Now I wouldn't want the headline to say "Police Killings Spike 55 Percent in 2016," but at least that would be technically true. But it would be statistically irresponsible, with such a low n.

Oh, look what I just found. This is too good to be true:

2016 Sees Year-Over-Year Spike In Cops Killed By Gunfire.

And it's also from NBC News! (File under "You can't make this shit up!") Well, at least NBC has all their bases covered.

Anyway, it looks like 2015 is going to be the blip, not 2014.


[I corrected a wrong number I had regarding 2014.]

May 14, 2016

It's in the papers, so it must be real

This shouldn't be news to any reader here. I've been harping on this since at least last October. But now reality is official real because it's in the papers: homicides are up.

Now maybe we can focus on the how and why instead of denying reality? I wonder if all those so ideologically eager to call out "the myth of the widely debunked "Ferguson effect" will have any second thoughts. I kinda doubt it.

And kudos to Richard Rosenfeld who now has major second thoughts about his overly cited initial report denying any "Ferguson Effect." (That's the why science is supposed to work: you get new data, you reach new conclusions.)

It's worth quoting Rosenfeld a bit, from the Guardian:
For nearly a year, Richard Rosenfeld’s research on crime trends has been used to debunk the existence of a “Ferguson effect”, a suggested link between protests over police killings of black Americans and an increase in crime and murder. Now, the St Louis criminologist says, a deeper analysis of the increase in homicides in 2015 has convinced him that “some version” of the Ferguson effect may be real.

Looking at data from 56 large cities across the country, Rosenfeld found a 17% increase in homicide in 2015. Much of that increase came from only 10 cities, which saw an average 33% increase in homicide.

“These aren’t flukes or blips, this is a real increase,” he said. “It was worrisome. We need to figure out why it happened.”
...
“The only explanation that gets the timing right is a version of the Ferguson effect,” Rosenfeld said. Now, he said, that’s his “leading hypothesis”.
...
Rosenfeld said that the version of the Ferguson effect he now found plausible was very different from the one Mac Donald had described.

“She thinks the solution is to stop criticizing the police; I think the criticism is understandable, rooted in a history of grievance, and serves as a reminder that the police must serve and protect our most vulnerable communities.”
...
“The conclusion one draws from the Brennan Center’s report is, ‘Not much changed,’ and that is simply not true. In the case of homicide, a lot did change, in a very short period of time,” he said.
Honestly, I don't think MacDonald is saying the solution is to "stop criticizing police." (Though, short of murder, it's hard to imagine MacDonald ever actually finding fault in anything police do.... But I'll let her speak for herself.)

The problem isn't criticism of police, the problem is an effort to reign-in what some people see as out-of-control racist policing. This is being accomplished by concerted lawsuits, paperwork requirements, public accusations of racism, and, in Baltimore's case, straight up criminal prosecution of police officers who arrested a man who later died.

And anybody who even attempts to discuss these issues, even in a thoughtful and nuanced manner, such as FBI director Comey, could be slapped down by none other than President Obama himself!

And no, I don't like the term "Ferguson Effect" either, but enough with the semantics. Lives are being lost. Maybe "viral video effect" will catch on, but the "Ferguson Effect" is the term most people are using to describe a very real phenomenon of less proactive policing leading to more crime. So be it.

And now be enguard for specious arguments about "declining legitimacy" from the police-are-the-problem brigade. The problem isn't legitimacy. The problem isn't even poverty (that is a separate problem). The problem is violence linked to public drug dealing and people who believe that policing has no effect on preventing violence. Too many people criticize even effective policing and really do want police to do less. They're not evil people. They're just wrong.

It's also ironic that the same people who refuse to give police credit for any crime decline are now reflexively blaming police for "not doing their job." Which is it? Do police matter or not? I think they do. Either police are irrelevant to crime prevention (see: "root-causes") or they're not. First let's admit that police matter and then we can get on with the tougher job of figuring out what exactly we do want police to do.

It's not that police "aren't doing their job," it's that we, society, #BlackLivesMatter, many academics, and ideological "progressives" (going right up to the President), are redefining police work by insisting (quite loudly at times) that the main criminal and social justice issue of our time is racial bias, police misconduct, and the overuse of lethal force against black men.

It's not that police suddenly and collectively decided not to "do their job." It's that police have gotten the message we're sending them: we want less racially biased policing, less use of lethal force, and nothing controversial on YouTube. Call it what you will, this "is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior." That's not crazy speculation; that's the stated objective of police "reformers." The fact that this shift in policing seems to be having lethal consequences -- through less police discretion and less proactive policing -- is tough pill for many to swallow.

I can't say this enough, but if you think criminally charging six Baltimore police officers for doing their job -- at least five of whom are guilty of nothing more than being in the wrong place at the wrong time -- if you think that doesn't have an impact on police discretion? Well, you're living in Cloud Cuckoo Land.

More recently police in Baltimore have been under the gun for A) killing two very armed suspects and B) killing an armed robber holing up a cop. It's like we've moved from "police didn't have to kill that innocent man!" to "why did police have to shoot that man armed with a gun?!"

Consider this: Baltimore police killed fewer people last year than probably ever before. Chicago police stopped fewer people, blacks in particular, than they have in many years. In both cases it's not that police decided to stop working. For police officers, the "juice" is no longer worth "the squeeze." Police are responding, as they should, to public (and ACLU) pressure to do less bad, particularly to people of color.

Homicides in both Baltimore and Chicago, particularly among people of color, are way up. Maybe decreasing abuse at the hands of the state is more important that preventing homicides among our citizens. Reasonable people can disagree, but I don't think so. But maybe -- and this is the elephant in the room nobody wants to talk about -- maybe there is a very real trade off between violent crime and aggressive policing.

Community policing, nice though it is, does little to address the criminal class, the rubber-hits-the-road moment when police engage violent people in the street even though at that very moment they might be doing nothing wrong.

It's not like we don't know who is likely to be killed and who is likely to be the killer. We do. Not with 100 percent certainly, but we can certain vastly narrow down the pool of suspects. Then what? Effective policing will not always be pretty (or harass only the guilty). Do we want police to engage drug dealers standing around or are they "innocent" except at the very moment when they're slinging crack or pulling out a gun to shoot somebody?

If we do focus on violence, and we should, policing will be racially disproportionate because violence in our country is racially disproportionate. And focusing on violence means focusing on those who commit violence, ideally before they commit the violence. That's the civil liberties part of this. And no, it's not all or nothing, liberty or repression, but perhaps we need to accept we can't have it all.

Instead of only looking at fault, why not look at good policing? The NYPD has shown you can keep crime down and shoot very few people. In New York we've seen fewer innocent people stopped and -- to the great surprise of Heather MacDonald and almost every cop in New York City -- have not see an increase in homicides. (The key variable, I think, is that New York City has seen the virtual elimination of public drug dealing.) But who in the police-are-the-problem brigade will admit that the NYPD, warts and all, does a pretty good job? That would be start.

A primer on the Freddie Gray trials

A lot of people still don't know the basics about the death of Freddie Gray and the trial of six Baltimore City police officers. I understand people have other priorities, but many of those with no clue still hold very strong opinions. So here's a selective primer on the trial of the officers in the death of Freddie Gray.

Update, June 27: (Don't want to say I told you so, but...) all charges have been dropped.

Update, June 15: We're in the middle of the Goodson trial (the van driver). And ready to call it all. It's over. Everybody is going to be acquitted.

Legal Summary Update, June 8: This has been surprisingly hard to figure out, because the State's Attorney, Mosby, has repeated changed her story. Initially she claimed the stop was illegal and the arrest was illegal. But that was false. There was clear reasonable suspicion for the stop, and the knife is probably illegal -- or at least a reasonable officer could believe so, as said by a court commissioner -- so the arrest was legal. (And no, despite what Mosby has argued, cops don't have to ask about the legal justification for a foot pursuit to join in.)

So what the prosecution tried to argue, which is really quite absurd, is that because of the length and style of the detention -- the time when Gray was already in handcuffs (as is standard after catching a fleeing suspect), at some point during the period between the legal stop and the subsequent arrest -- at some point the stop became an arrest before the knife was found. And at the point of arrest, the legal standard needed by police would rise from "reasonable suspicion" to "probably cause." So if an arrest happened before the knife was found, police officers would not have had probable cause for an arrest. This is an amazing, novel, and almost incomprehensible legal argument. And it rightly failed in the trial of Officer Nero.

The other issue that will come into play, especially in the Goodson trial, is denied medical care. It's not clear that this happened at a criminally negligent level. But even if there was no crime, at least the basic legal argument here makes sense.]

[The original post starts here]

Fact 1: Freddie Gray had not been injured when police put him in the wagon. Video not withstanding, this seems to be the greatest misunderstanding. The medical examiner's report was clear that Freddie was physically OK when he went in the van. Officers are being charged with everything including the kitchen sink, but they are not being charged with hurting Gray. This is not in doubt. This is not what the trials are about. Gray was hurt after being put in the van and (obviously in hindsight) wasn't given essential medical care.

What this means: Before he was put in the van, Gray raised a fuss to attract attention and went limp, so officers had to carry him into the van. This is hardly unheard of, by the way. It doesn't necessarily mean he was totally faking it, though that could be. Maybe Gray was honestly claustrophobic. That could be for real. One officer I know knew and arrested Gray. He said Gray never resisted arrest, but he would freak out when confronted with the closed confined reality of being in the wagon. But the important thing to understand is that the video that started this all, that led to riots, and this prosecution, is now almost a non-issue.

Fact 2: Gray died as a result of a major injury sustained in the police van. Gray suffered very severe impact to his neck, similar to a diving injury, which caused major damage to his spinal cord. His spine did not snap, but the nerves were so broken that it was "like" his spine had snapped. We don't know exactly how this damage happened. But we do know it happened in the police van. After picking up Gray, the police van made five stops en route to the Western District police station. One of those stops happened because Gray was raising such a fuss that the van driver stopped to further restrain Gray. The van even picked up at least one other prisoner, who reported nothing unusual in terms of crazy driving.

What this means: While Gray's death could have been caused by an intentional effort by the wagon driver to hurt Gray, it's equally likely it was an accident. In the end, Gray was shackled by his hands and feet and placed on the floor of the van, face down and head first. My guess is that either Gray slid forward when the van braked, slamming his head into the front wall. Or Gray tried to get up and failed, cracking his head on the hard bench falling down. Is there a better and more expensive way to transport prisoners? Sure. But Baltimore won't pay for a better system because Baltimore is broke.

[Update: from twitter.]

It might be worth mentioning, not to say I didn't understand the theoretical concept, but as a former Baltimore cop I wasn't even familiar with the term "rough ride" until these events. Baltimore police culture does not allow you to pass your dirty work to another cop. If you wanted to hurt a prisoner, you would need to do it yourself. And you don't mess with a guy after the cuffs go on.

Fact 3: A prisoner is your ultimate responsibility. A human being is literally in bondage, and you are their keeper. When you have a prisoner, you are 100-percent responsible for their well being. You can't go into police custody alive and come out dead. Period. If you make an arrest, the prisoner is yours until the wagon driver assumes responsibility. When this happens, the wagon driver will search the prisoner (again), and there will be a swapping of handcuffs (unless disposable flex cuffs were used in the original arrest). Responsibility of the prisoner transfers exactly at this moment. (It's also, as a prisoner, your last good chance to make a break for it!) When you get your cuffs back, the prisoner is no longer your responsibility. This is actually one of the very few clear-cut understandings in a police world generally lacking in them. (Responsibility transfers again at Central Booking. But Gray never made it there because Central Booking won't take prisoners who need medical care. Despite obvious need, there is no doctor at Central Booking. Why not? you might ask...)

What this means: If Gray went into the wagon OK, the responsibility for his death, right or wrong, falls on the wagon driver. Those are the rules. This doesn't imply intent or even criminal action on the driver's part. But prisoners are not allowed to die in your custody. Period. (well, maybe if they have late Stage 4 cancer or something... )

Fact 4: This is more of a "fun fact." But it seems worth mentioning. It was a directive from the State's Attorney that directly led to Gray running from police on a Sunday morning and dying. Ironic, no?

Three weeks before Gray's arrest on April 12, 2015, Joshua Rosenblatt, working for Baltimore City State's Attorney Marilyn Mosby (the State's Attorney is the elected public prosecutor, known in some other places as a District Attorney), contacted the Western District Police Station (one of nine police Districts in Baltimore City) and asked them to target the corner of W North and N Mount "for enhanced prosecutorial (and hopefully police) attention." [May 17 update]I think this pressure originated from the Fulton Baptist Church, a block away, whose parishioners got tired, in their Sunday walk from their car to their church, of being bothered by drug dealers, addicts, and small-time hustlers like Freddie Gray.

Baltimore Police Lt. Brian Rice (whom I worked with briefly, back in the Eastern, many years ago) received instructions to begin a "daily narcotics initiative" focused on North Avenue and Mount Street. "Daily measurables" would be collecting on their progress.

Over the past few years there has been (by my rough calculation) an average of one homicide every three months just within 1,000 feet of this intersection! We're talking four murders a year in 1/25th of a square mile.

What this means: Police officers would love to reduce crime and solve neighborhood quality-of-life issues, but when orders come to produce "daily measurables," "stats" they will produce. This means stopping people, making low-level discretionary arrests, and otherwise hassling the drug dealers, drug addicts, and other hangers-on of this drug "shop." This may no be ideal policing, but it isn't necessarily bad policing. (You got a better idea?) For what it's worth, during the weeks of "special attention," there were no homicides.

Fact 5: These are weak cases, criminally. Just because somebody died doesn't mean one officer, much less six, is guilty of any crime. It is close to undisputed that the police chase, stop, detention, frisk, search, and arrest of Freddie Gray were legal. Things get complicated here, as Mosby is throwing in every charge she can think of, but case law and precedent are very well established here. The legal case against the officers for what they did do (as opposed to what they didn't do) is incredibly weak.

What this means: Soon after Mosby charged the cops, she would modestly take credit for ended the riots. This was contrary to reality (the riots had already ended) and legal ethics (you can't charge innocent people to placate a mob). In her rush to bring charges against cops, Mosby's office seemed shockingly unclear about both what happened and basic legal concepts related to stop and frisk (yes, that is a possibility).

You do not need "probably cause" to "stop" somebody; you need "reasonable suspicion." (I'm putting the legal terms in quotes.) The Supreme Court has specifically ruled on the matter of running from a drug corner (Illinois v Wardlow). Running is not a crime, but running from a drug corner at the sight of cops gives police "reasonable suspicion" to justify a "stop."

The concepts of "reasonable suspicion," "stop," and "frisk" all come from Terry v Ohio (1968). Terry gives officer the right to "frisk" a suspect for weapons. During a "frisk," which is defined as a patdown of outer clothes for weapons, you might feel "contraband" (a weapon or, in most states, drugs). If you can "articulate" this based on "plain feel," you now have "probable cause" to "search" that area and dig out whatever is there. If it's illegal, you can arrest the person.

Currently (May 2016 trial of Nero) the prosecutor is claiming that Terry doesn't give officers reason to detain Gray for any length of time. This is downright crazy. It won't work. If Judge Williams thinks otherwise, his decision will A) be overturned on appeal or B) Maryland v. Nero will become a landmark Supreme Court case that overturns years of established legal precedent.

In this case Gray had a knife that most likely violates Baltimore City ordinances. There's ambiguity here as to what the law means, with its reference to an "automatic spring." But -- and get this -- even if the knife were legal, it wouldn't automatically make the arrest illegal. The legality of the knife would matter only to the prosecution of the suspect with the knife. The legal standard by which a police officer is judged is "reasonableness." Could a reasonable officer believe the knife was illegal? Yes, especially if it is. And given that the prosecutor's office won't show us the knife, I suspect there's no question here. But we don't know for sure.

Now make no mistake, officers wanted to arrest Gray because Gray ran. That's the penalty for making cops break a sweat and chasing you on an otherwise quiet Sunday morning. But running is not a crime. (We sardonically call it "felony running.") And if Gray had had no knife (and cops couldn't figure out some other minor charge to get him on) cops would have had to let him go.

Fact 6: It is departmental policy to seat belt suspects. But it is not a law.

What this means: It's not clear. Is failure-to-seat belt negligence? We'll see. But it's a stretch.

And then things get downright curious here... (Not as curious as, say, sabotaging an FBI investigation about police overtime at a Staples by breaking into a secret internal affairs office, stealing files, and then dumping them in a Dunkin Donuts dumpster curious... but curious). So there was this memo that was supposedly issued just a few days before Gray's arrest clearly mandating seatbelt use. The department issues its first memo in 17 years on seatbelt policy just a few days before Gray's arrest and consequent shitstorm? What a coincidence. I don't know anybody who saw this email before Gray's death. In other words, the memo may have been backdated.

Could the department and the State's Attorney not know police department policy? Sure. There's no index in the book of "general orders." You can't just quickly look something up. All this said, the irony is that the new memo issued a policy that already was department policy! I just don't think they knew this.

Regardless, policy isn't law. And department policy can and should be ignored, depending on the circumstance.

In my days most suspects were belted in. Now, they say, not so much. Either way, it is the wagon driver's responsibility. I think common practice changed because now there's a middle barrier in the van (for prisoners' safety, from each other). Space is very tight. And if a suspect is resisting, it indeed may not be practical or safe to use a seat belt. In this case, there was an angry crowd on the scene (being fed false rumors by Gray's friend, Brandon Ross). And Freddie Gray was thrashing around, uncooperative. The police goal then is to get out of there before things get really ugly.

Fact 7: After the riots on April 27, 2015, violent crime in Baltimore doubled. Overnight. I know of no other time in human history that violent crime changed so dramatically on one specific day. Overall, homicides increased from 211 in 2014 to 344 in 2015. Literally (roughly) one in every 220 black men aged 18 to 34 was murdered in 2015. Think about that. This is a solider-in-war level of mortality. This is shameful. This is wrong.

What this means: Policing in Baltimore changed after the riots and the criminal prosecution of the six officers, at least five of whom did nothing wrong. Murder and rising violence should be higher on our list of concerns. Many on the anti-police left want police to have less discretion and be less proactive. And this is what happened, out of choice and necessity. We see this correlated with increased violence and homicide. And yet so many, mostly on ideological grounds, try to deny this reality or downplay its significance.

Summary: Gray died in police custody. You're not allowed to die in police custody. But that doesn't necessarily make death a criminal act. We have a tort system and civil lawsuits to resolve cases of accidental deaths. But, you might be asking:
If the cops are so not-criminally guilty, why is Baltimore's leadership wasting so much time and effort prosecuting six innocent police officers? Is Mosby really attending the trial and is her number-two person the trial attorney? This is a misdemeanor case. Who's minding the shop? Doesn't Mosby, well, have better things to do?
Well, you'd have to ask her, but apparently, in a city with hundreds of unprosecuted murders, she doesn't think so.

And do consider that Mosby and Mayor Rawlings-Blake may simply not be good at their job (and include former police commissioner Batts in this category). I mean, you can form your own opinion, but Baltimore might have really bad elected officials. The mayor inadvertently stoked the riot by saying, and I quote: "We also gave those who wish to destroy space for that as well." She said these "space to destroy" remarks were "mischaracterized." But she never corrected or clarified them. The riots were her Ray Nagin's Katrina moment. Later the mayor had the gall to say that other cities should be envious to have had such a little riot. Even with skyrocketing crime rate and crumbling infrastructure, you can win elections in Baltimore by being a "progressive" "reformer" calling for "justice" against the police. You don't seem to lose your job by doing a bad job.

As to State's Attorney Mosby, here's what I think: after watching the video of Gray being led to the van and listening to people unclear on legal concepts, Mosby decided Gray was illegally arrested and severely injured by the arresting officers. In her rush to bring charges, Mosby jumped the gun. Turns out she was wrong about what happened. (Hence the now-dropped assault and false imprisonment charges.) When facts (such as the medical examiner's report) became known, they didn't support her Plan A, so she had to go to Plan B or C. Admitting she made a mistake (which actually is a prosecutor's ethical responsibility) is not going to happen. And honestly, Mosby, who comes from a long line of bad cops, may have deeper issues with cops and police departments. But no matter my Freudian analysis, Mosby's political career -- not to mention her Vogue appearances -- hangs in the balance. She can't afford to lose.

The police officers being charged (and trial dates as of March 16):

Officer Edward Nero is on trial for second-degree assault and misconduct in office. (He was originally also charged with false imprisonment.) These charges have nothing (except politics) to do with the death of Freddie Gray, which makes the case both weak and somewhat absurd.

Update, May 23: Nero was acquitted on all charges. Judge Williams did not buy the "accomplice theory," saying it is "not an appropriate application of the law."

Officer Caesar Goodson June 6. As the van driver, he faces the most serious charges: second-degree depraved-heart murder (nobody is really clear what "depraved-heart" means), manslaughter, second-degree assault, two counts of vehicular manslaughter, misconduct in office and reckless endangerment.

Officer Brian Rice July 5, involuntary manslaughter, second-degree assault, two counts of misconduct in office, and reckless endangerment. (He was originally also charged with false imprisonment.)

Officer Garrett Miller July 27, second-degree assault and misconduct in office. (Also originally charged with false imprisonment.)

Officer William Porter September 6 for a retrial after his first trial ended in a hung jury on charges of involuntary manslaughter charge, second-degree assault, reckless endangerment, two counts of misconduct in office.

Officer Alicia White October 13, involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment charges. Rice also faces an additional count of misconduct in office.

The other players:

Freddie Gray: Died in police custody.

Brandon Ross: Gray's friend and a witness who recorded Gray being dragged to the van and falsely claimed that Gray was beaten and tased by the arresting officers. He's since been arrested for stabbing somebody.

Michael Schatzow and Janice Bledsoe: Attorneys prosecuting Nero.

Judge Barry G. Williams: The judge. And since Nero's trial is a bench trial. He alone makes the call. No jury.

Marc Zayon: Nero's attorney

Bystanders that pop up include Freddie Gray's civil lawyer William "Billy" Murphy. If it's a lawsuit against cops, it's usually Murphy or Dwight Pettit on the case. There's also Douglas Colbert, a media hound and law professor who is always ready to give an anti-police spin to reporters.


For more on Freddie Gray, see the coverage in the Baltimore Sun.

May 12, 2016

The Trial of Edward Nero

The second trial has begun. If you want to know my thoughts, best to see what I'm saying on Twitter. Mostly I'm just retweeting interesting points from, you know, actual professional reporters (like Kevin Rector, Justin Fenton, Mike Hellgren, and Robert Lang) who are at the trial, doing their job.

Overall, my opinion is well summarized by this quote in the Guardian:
“It was clearly a legal chase, stop, frisk, then search. And a reasonable arrest, even if it wasn’t legal (and it might have been legal),” said Peter Moskos, a former Baltimore police officer and professor at the John Jay College of Criminal Justice. “I can’t imagine a weaker case.”

"Is the juice worth the squeeze?"

The FBI Director Comey says in the New York Times that:
A “viral video effect” — with officers wary of confronting suspects for fear of ending up on a video — “could well be at the heart” of a spike in violent crime in some cities.

“There’s a perception that police are less likely to do the marginal additional policing that suppresses crime — the getting out of your car at two in the morning and saying to a group of guys, ‘Hey, what are you doing here?’” he told reporters.
There are a few interesting things here. This time Comey is being criticized from the Right. From the head of the FOP:
"He’s basically saying that police officers are afraid to do their jobs with absolutely no proof."
Actually, no. He's not.

Previously Comey was criticized only from the Left:
He first raised the idea in October that a “chill wind” had deterred aggressive policing. But Obama administration officials distanced themselves from Mr. Comey at the time. They said they had seen no evidence to support the idea of a “Ferguson effect.”
...
Asked about his past views on the “Ferguson effect” as a possible explanation, Mr. Comey said he rejected that particular term, but added that he continued to hear from police officials in private conversations that “lots and lots of police officers” are pulling back from aggressive confrontations with the public because of viral videos.
Comey continues:
“I don’t know what the answer is, but holy cow, do we have a problem,” he said.

“It’s a complicated, hard issue, but the stakes couldn’t be higher. A whole lot of people are dying,” he said.

He said that the spike in violent crime deserves more national attention from scholars, the media, and the public.

“Something is happening,” he said. “A whole lot more people are dying this year than last year, and last year than the year before and I don’t know why for sure.”
We need more leaders like Comey.

It is time we started caring and stopped asking if violence is up (or working hard to deny it) and figure out why it's up and what we can do about it. More people are dying. Like global warming, we don't have to wait till we have 100 percent proof and understanding of every causal mechanism before saying it's time for action. We do not have -- and given the nature of society, social science, and statistics, we will never have -- "undeniable statistical proof." Put we do have evidence.

This is a good as time as any to reprint an email I received a short while back (reprinted with permission, anonymously):
My first week on the street, a guy in my squad told me to ask myself "if the juice is worth the squeeze" when making a stop. What he means, of course, is to ask whether some stop is worth my life and or job. Every stop means you are exercising legal authority, which means you have to use force if people refuse, which means any stop can turn into a use of force. If I stop this guy, for jaywalking or driving suspended or no tabs, and he fights me and I die, was it worth it?

And since I don't plan on dying today, if he fights me and he dies, what will the media say? "Man killed by cops over expired tabs".

What will my department say? They'll dig into the books and beef me for swearing or not using team tactics or not waiting for backup or whatever they can find. Am I gonna be suspended for months and risk indictment?

Every cop makes this calculation every time they consider a proactive stop. It used to be, if you had a good lawful reason for the stop, you could count on the community and the brass blaming the suspect for fighting with you if it turned into a use of force. Nowadays, that's an open question.

Meanwhile, a few guys a while back tackled a dude for selling weed and caught him with a loaded Mac 10. Probably a homicide prevented. But on the other hand, if he'd hit his head falling and died, what would the storyline be? "Cops Kill Black Man Over Weed"

I still do proactive work. But I find it hard to blame the guys who don't.
This officer makes another a points worth highlighting. If we take away police discretion and punish proactive policing, the result won't be less racism:
I know proactive policing isn't racist. In fact, I think it's anti-racist. Going to reactive 911 calls about "suspicious" characters based on nothing, that's way more racist.

[my previous posts on Comey: one and two.]