When More Law is Too Much – a Case of Airport Excess

May 19, 2016

A proposal before the Albany County legislature makes it a crime to “interfere[] with or fail[] to submit” to the United States Transportation Security Administration inspection protocols.  It would become a crime to turn around and leave the airport for any reason once one enters the screening area.

Proponents imagine people probing airport security until a vulnerability is found by “start[ing] the screening process at an airport” but leaving before completing it. The legislation’s supporters want travelers to have to go through a secondary screening process which includes a physical search of the person and their luggage, a pat down or more. But this poorly drafted legislation makes it a crime to leave once the traveler approaches the conveyor belt, before luggage has been screened.

The proposal substitutes inconsistent local rules for uniform national ones. Under the vague “interference” language, a person who questions why a security officer wants to search the traveler or her luggage may well be arrested for interfering with security protocols.   The proposal aggravates the problem of “flying while Muslim” – or at least flying in Muslim apparel, though I know from experience here and abroad that the vast majority of Muslims are, like the rest of us, decent, caring, peace-loving and law-abiding, although stopped and searched in very disproportionate numbers.

The New York Civil Liberties Union has described this proposal as “a remedy in search of a problem.”[1] There is no apparent problem this legislation would solve. Under long established rules, the TSA and other law enforcement personnel at the airport have all the authority they need to take action whenever they actually suspect a problem rather than whenever someone turns around because they have to run to the bathroom, had a panic attack or forgot something, which becomes criminal under this proposal.

I’d like to quote an eloquent letter sent to me by psychiatrist Aliya Saeed: “physical searches are quite traumatic for many … including survivors of rape (who are unlikely to want the back of a stranger’s hand next to their crotch, and on their breasts, as practiced currently), transgender individuals, those with emotional and mental health issues, pubescent children, etc. Being forced into an arrest … in a crowded public place, because someone is perceived to be walking away from a checkpoint, instead of … being able to simply leave an intolerable situation, presents  an undue risk …. We know that people with mental illness are far more likely to end up at risk of harm in police encounters because they are often unable to communicate effectively or comply readily with police demands. This presents an unnecessary liability for the law enforcement, and an unacceptable risk…, especially [for] those with mental health issues, history of trauma, autism, or those with limited English proficiency.”

This legislation just isn’t needed – there is no gap in authority to take necessary action when officials reasonably suspect wrongdoing. Instead, this will cost us tax dollars without giving us any benefits while threatening travelers with totally unnecessary harm. This legislation should be withdrawn.

– This commentary was broadcast on WAMC Northeast Report, May 17, 2017.

[1] NYCLU Memorandum Re: Proposed Albany County Local Law E of 2016, establishing a secondary search protocal at Albany County Airport, submitted at a meeting of the Albany County Legislature, Monday, May 9, 2017.


Professor Paul Murray’s class on the civil rights movement

May 9, 2016

Paul Murray went South as part of the Civil Rights Movement. For many years he has taught a course on the Civil Rights Movement at Sienna College and taken high school and college students on trips to see places made famous by the struggle for freedom and equality.

Professor Murray, Paul to many of us, is retiring soon. This year’s class on the Civil Rights Movement has been his last. For the last session, he held a discussion of whether the Civil Rights Movement had succeeded or failed. Just three students thought it had been a success. Paul asked why. Students brought up discriminatory policing, the impact of putting so many Blacks in prison for behavior that would not get whites prosecuted let alone incarcerated, and the extent to which Blacks still go to schools segregated by zoning and other boundaries, understaffed with fellow students who mirror their own economic backgrounds and skin color.

Gradually Paul got the students to drill deeper –hadn’t some things changed for the better, where and for whom? Elementary schools changed less than colleges and universities. Housing patterns are more segregated after the emergence of white suburbs and wealth is still very skewed. For one student, her very existence depended on the Civil Rights Movement when the Supreme Court held states could no longer ban intermarriage of whites and Blacks.

My wife commented that the world is different from what it was when she grew up in the South or even when we moved into Albany in 1979. African-Americans do many things they couldn’t then. Out shopping and dining years ago we’d just see African-Americans working as busboys and janitors. Now we see them as waiters, hosts, and salespeople. We work alongside African-American professionals, lawyers, businessmen and faculty. And when we came to Albany the city was still geographically and politically divided by faith and national origin in a way that has long since passed.

Another woman commented that being white is actually a step forward for many whites in the room, who grew up knowing that our own groups were discriminated against. Somehow all those ethnic and religious differences no longer separated good, helpful, valuable people from anyone else, and we’re all much richer for it.

The Civil Rights Movement made a difference to all of us, Black and white. A law professor years ago wrote a book about the African-American contribution to the First Amendment.[1] Much of the improvement in Americans’ sense of brotherhood was also forged in the Civil Rights Movement.

But don’t count on it. We had an integrated federal bureaucracy for half a century after the Civil War until President Woodrow Wilson drove Blacks out of the civil service. We had integrated restaurants and theaters in the South before the Klan terrorized southern Blacks, taking advantage of Supreme Court decisions that what happens in the South is no business of Congress and federal prosecutors.[2] The Supreme Court in our own time has called a halt to integration, repeating its 19th century backsliding. The schools and criminal justice system are still failing Blacks.

I don’t know how long it will take. Visitors to Paul’s class had spent their lives working for justice and we all have to keep working for it. I want to believe that our work and social relationships will gradually drive racial justice in the same way they drove the integration of ethnic groups and the gay rights movement. It’s been harder and slower regarding race but we will get there, thanks to people like Professor Murray.

— This commentary was broadcast on WAMC Northeast Report, May 3, 2016.

[1] Harry Kalven, The Negro and the First amendment (Chicago: Univ. Chicago Press, 1966).

[2] C. Vann Woodward, The strange career of Jim Crow (New York: Oxford University Press, Commemorative ed., c2002) (1955).


The Code of Silence and the Stereotype of Bravery

March 8, 2016

It’s hard to explain to most people how serious the problems with the police are. Ideology makes people choose sides and blink reality. Urging change is treated by police as pure hostility. There are many good policemen doing everything they can to protect all of us. Equally clearly there are policemen who are there for the power trip from the uniform or from their weapons.

But their solidarity and their code of silence make it a much more serious problem, making all criticism out of bounds and protecting policemen who commit serious crimes or abuses.

Sometimes victim’s families win civil suits but the city pays, which means you and me pay, while the officers will be indemnified. That’s not nearly good enough.

Some police were so brave that they were terrified by a man reaching for his front door key and pulverized him with 41 shots. So brave that a Black man in a winter coat, walking like he had a bad knee, a limp or a package – suggests a gun to them and the encounter ends with his death. Or they decide to take what they think the law is into their own hands in a deliberately rough a ride before considering a trip to the hospital, recently ending one victim’s life in Baltimore. I don’t buy stereotypes, including stereotypes of the police. My blood curdles when officers who should be brave and careful shoot unarmed and law-abiding Black men in the back saying they were scared.

Of course it’s now legal to carry guns. But not for African-American men. It’s not even legal for African-American men to look like they might be carrying a gun because it scares our policemen and someone often dies. Of course the rest of us are not supposed to react that way – we’d be charged with murder.

We call the police the finest – but many can’t deal with any but instantaneous obedience and agreement. Objections are often met with charges of resisting arrest or interfering with a police officer. My advice to anyone stopped by the police is to sound apologetic and compliant but say absolutely nothing except your desire to talk to an attorney – politely. It’s my advice to stay alive. But too many don’t get the message. They’re Americans who “know their rights” and they’re angry when they’re stopped for no good reason. They don’t respect people who fly off the handle at the first sign of disagreement, using their weapons to get “respect” for the cops.

Boy I’d love to have unqualified confidence in cops and troopers, to respect their bravery, good sense and commitment to police themselves. But fairness, accuracy and justice are far from consistent results of policing. Cops have told me they’d never rat on a brother and would deny what they knew to be true. I’ve had policemen tell me they change the facts to make people guilty of crimes – like convicting Black or young men in the wrong attire of carrying concealed weapons – including hunting rifles in plain view. Judges have told me they believe the police about half the time – they just don’t know which half.

There have been many exposes of police corruption. But when someone tries to stop it, they are ostracized, forced out or worse. Police unions protect police records so that no one, including the press, can get the facts.

That’s the force we have – one that condones bad behavior over codes of decent conduct. That’s not what our Founders dreamed of or what we deserve. It’s not about rogue officers. It’s about the misplaced loyalty that protects bad behavior. I’d lock their guns in the armory until they learned to police themselves and protect us all.

— This commentary was broadcast on WAMC Northeast Report, March 8, 2016.


The Death of Dontay Ivy and “Walking While Black”

March 1, 2016

I’ve been reading District Attorney David Soares’ letter to Mayor Sheehan on the death of Donald (Dontay) Ivy while in police custody. I’d like to discuss some of what came out of the D.A.’s investigation.

Donald Ivy went out to an ATM, to collect disability benefits, intending to come home. David Soares describes Dontay’s first encounter with the police that night. Two officers [quote] “approached … [Dontay Ivy] sitting on the steps of a property in the South End. The officers approached … in an attempt to learn if he was trespassing.” [close quote] Satisfied that he was’t, they left. Have you ever rested on the steps of a building? Did you think you were trespassing? You weren’t and he wasn’t unless the owner or tenant conveyed an objection or he had gone through a lock, door, fence or barricade. For the police, the mere fact that an African-American man was sitting on some steps was enough to check on him.

A little later that evening, Dontay was walking on Lark Street. Soares noted that it was 26 degrees according to “historical weather data.” But the officers’ became concerned because he was wearing a winter coat, what they called “a ‘puffer’ coat,” [close quote] was [quote] “walking heavily on his left arm” [close quote] and [quote] “appeared to be bunching up his left hand into his sleeve.” [close quote] I’ve done that, sometimes to shelter something from the weather, sometimes because one hand was colder, because of the way I’d been using my hands or had somehow restricted circulation in one hand.

According to District Attorney Soares, one officer said [quote] “the way he was walking didn’t seem right.” [close quote] I don’t know why – a crick, a cramp, or a little arthritis. I can imagine someone coming up to me and asking if I was OK. But the officers asked to see Dontay’s hands and wanted to know where he was going. I can’t relate to that from my experience. Can you?

Apparently because Dontay had on a loose fitting winter coat, whatever he was able to afford on his disability check, one of the officers [quote] “was under the impression that Mr. Ivy might have had a weapon, or possibly drugs.” [close quote] That inference was’t backed up by anything found on Mr. Ivy. It’s an inference that could easily be drawn about most of us sometimes, but I suspect few of us have had police make that kind of inference about us – certainly not if we have white skin and decent clothes.

The report continues that one officer [quote] “noticed what appeared to be a tied-off plastic baggy of the sort used to package drugs on the ground, about ten to twelve feet away from Mr. Ivy, near where he had been walking.” [close quote] If I had to explain every plastic bag found near me when I’m out for a walk, neither the police nor I would have time for anything else. And plastic bag stories are so common in cases where police are trying to justify a search that everyone in the criminal process has become enormously skeptical. It later turned out that the bag was empty.

After they questioned him further, they decided to pat Dontay down. According to the police, he consented, but reacted to being touched by pulling his hands down. Soares’ letter says, “From interviews with members of the Ivy family, we are led to believe that, as part of his mental illness, Mr. Ivy did not like to be touched.” [close quote] Mr. Ivy was under medication for his illness. Let me add that I have learned, from experience and from some direct remarks, that many African-Americans do not like to be touched even in ways that are completely unexceptional in the U.S., including a tap on the shoulder which got me a withering look from a speaker at an event of an organization of which I was a board member.

Obviously things kept getting worse until, as David Soares summarized the findings of the medical examiner, [quote] “Mr. Ivy suffered from an underlying condition that made him particularly susceptible to a heart attack brought on by the stress of the incident with the police.” [close quote] By the time of his death, that stress included the officers attempt to handcuff him, Ivy’s attempt to flee, a chase, subduing Ivy with handcuffs, leg restraints, a police baton and several taser strikes.

Clearly before the stress killed him, the stress led Ivy to do some things that were unwise, that I as an attorney would have advised against had I been able to reach him. But people doing stupid things under stress is a fact of being human. Interestingly, at one point, one of the officers told Dontay they were going to detain him because he couldn’t follow the officer’s instructions to keep his hands up, adding [quote] “You’re making me a bit nervous.” [close quote]

It’s striking how ordinary all this is – Dontay’s behavior before the police stopped him; his obvious fear of the police and what they were doing is also ordinary, especially in the Black community; the officers’ fear that Ivy had a gun, even though based on a string of inferences from very ordinary behavior, and fear about a possession which, under recent U.S. Supreme Court cases, would arguably have been within his rights.

But from all those very ordinary facts, a man is dead and the D.A., the grand jury, the police chief and the Mayor all apparently find no one blameworthy. What it means is that for [quote] “walking while Black,” [close quote] a man needs the savvy of a criminal defense lawyer and the courage to deal with stressful situations by focusing on how scared the police are because of the color of his skin.

— A shorter version of this commentary was broadcast on WAMC Northeast Report, March 1, 2016.


No Justice for the Vulnerable

December 29, 2015

In this season of charity, I’d like to talk about the fate of the less fortunate to make clear how our politics has been turning a blind eye to the damage it does.

When we aren’t responsible for the costs imposed on others, we will continue to hurt them. Economists call that externalities. Businesses don’t have to pay for the effects on our environment so most businesses continue doing global damage just as much as if they were perfectly benign. Forcing businesses to pay for workers’ injuries, forced them to take account of ways they could save money by protecting their workers – not out of the goodness of their hearts but because the legal system said they had that responsibility. When costs are internalized, they result in better overall decisions.

In the law of eminent domain, cities have to pay for taking people’s property regardless of how wonderful their plans. They have to internalize the costs their plans will do to the owners of real property. When they did urban renewal, the cities didn’t have to pay for the businesses whose customer base was destroyed, and they didn’t have to pay for forcing people into much less safe or appealing housing or projects. So cities avoided taking high priced real estate but they freely wiped out the businesses of the most vulnerable. Those costs were externalized, imposed on other people who had no choice in the matter.

In fact our system makes scores if not hundreds of thousands of innocent victims with no thought of internalizing the damage and paying any form of compensation.

When an individual is wrongly imprisoned for a quarter century and is lucky enough for someone eventually to find a way to convince the courts to let him out, with DNA or other conclusive evidence, that individual has to prove that someone was not only derelict in his or her duty, but did not have one of the many privileges that the law gives people in the criminal justice system, or that the city or state was derelict in its duty of supervision and training, before that individual has any right to compensation. Everyone in government gets to smile and say justice was done while continuing to do the kind of careless investigation and sometimes deliberate withholding of evidence that kept people in prison. They aren’t made to internalize the costs of their misbehavior.

Would police departments be so happy to retain police officers if the department budget took a big hit every time a cop guessed wrong and shot an unarmed civilian? Or would the department institute practices to make that stop?

In fact our law makes the victim or survivors prove specifically what the city should have done in training or by regulation or what the officer should have done under the circumstances. Asking only whether the officer’s behavior was reasonable, the law doesn’t take account of the reasonableness of the victim’s actions. In other words, instead of making the officer and the city responsible for their mistakes, it puts the risk of police error on the individual.

Of course that is typical of American law – protect those who don’t need it but leave the vulnerable in the gutter with a sheet and a prayer. There’s little justice in America for the vulnerable.

— This commentary was broadcast on WAMC Northeast Report, December 29, 2015.

 


Political Correctness

December 15, 2015

I want to address one of the issues coming out of recent events on college campuses, not to mention the rhetoric of Mr. Trump.

Frankly, I’m fed up with the attack on what the right wing calls political correctness. Apparently some think the condemnation of racism in our social interactions is merely political correctness. It should be open season on everyone. Of course that’s a two-way street. I can think of all sorts of epithets and insulting language to hurl at people who would protect nothing but their own right to trash everyone they dislike. That of course describes Congress – the wraps are off all forms of battle. There are no rules in a knife fight as a legal scholar once titled an article. Apparently civility is the enemy.

I think of politeness as normal and proper behavior in a democratic or any society. People were civil to me in Iran regardless of their reactions to my nationality or religion. But some denounce the very idea of civility, of being polite. Civility and politeness are essential to democracy because we have to live together. They are essential to democracy because we have to work across disagreements to get even the things we all agree on done. They are essential to democracy because if we make each other the enemy we are headed toward the breakdown of all democratic institutions, starting, as the Rehnquist Court made clear, with vote counting. Polite behavior toward each other is essential because without it we are headed toward violence.

I did not grow up with prejudice against Blacks but I did grow up with plenty of other instinctive prejudices that I did not investigate because they seemed so ordinary. Nevertheless I did not go around hurling epithets at people. I eventually learned to bury those prejudices, at least those of which I am aware, and to fight against the mistreatment of those selfsame people by our government and society. But being polite was always a different issue. It was about the respect that we are bound to show all people in a democratic society.

As you all know, I teach law. And I have often taught practice skills, interviewing, litigation, trial practice. I do not teach people to walk up to the jury box and ask a juror why we should want an ethnic, racial, or religious so-and-so like you to sit in the jury box. I do teach my students that talking with people or interviewing witnesses or clients requires respectful listening and showing some understanding of what they are trying to tell you regardless of what you may think of them. That’s necessary to get the job done.

When the people become the issue instead of their behavior, politics becomes particularly dangerous. When politics is no longer about issues but about people, it’s not just whether they lose a political debate; it’s that people stand to lose everything, to lose the protection of the laws. And by the same token the oppressors become the proper subject of the laws.

From the behavior of the right, or wrong, wing, I question whether they believe in democracy, and therefore whether, by their defense of political incorrectness they, the wrong wing, are entitled to respect. Makes me want to solve our political problems by just giving Texas back to Mexico.

— This commentary was broadcast on WAMC Northeast Report, December 15, 2015.

 


Do the police really have no time to do anything but shoot?

August 4, 2015

Perhaps you read the NY Times story over the weekend about the self-described expert in police killings, William Lewinski, who justifies every police killing on the ground that the policeman had no time to protect himself, no time to do anything but shoot. Victim’s back turned, no time. Hand in pocket, no time. Victim doing what the officer told him to do, no time. All the evidence contradicts the statement of the officer, no time.

On Lewinski’s logic, we should all not only carry weapons, we should shoot everyone on sight, because we have no time to react, so we should all practice  preemptive killing – dead men can’t shoot us. What we should really do is move to Iraq or Syria because that’s a matter of course there. Shoot, shoot, shoot.

And understanding that the police are taught by nut-jobs like Lewinski to shoot pro-actively, what we should really do is go out like armed vigilantes and attack the police systematically, kill ‘em all so they can no longer attack us. And in case you hadn’t noticed there have been groups that have targeted the police and for just that reason.

Lewinski’s approach is good only for the undertakers. I don’t know what the undertakers give him but they should chip in a lot because they will certainly benefit from a shoot on sight society.

Of course if you or I actually took that advice, we’d be charged with murder. But the rules don’t apply to the police. We can’t shoot unarmed people but police can – and get away with it. We can’t shoot people in the back but police can – and get away with it. We can’t tell a bunch of lies about what happened that are contradicted by the provable facts and get away with it but police can – and get away with it. Thanks to Lewinski.

Think what Lewinski and others of his ilk would have to tell the police if, like most of us, they weren’t armed. They’d have to tell the police to use their heads, not their guns. They’d have to tell the police to cool tempers instead of raising them. They’d have to tell the police that the best response to a disagreement isn’t a hole in the head. They’d have to tell the police that a traffic stop isn’t ground for ending someone’s life.

What a different world it would be if we learned to live together, if we learned that there is a difference between civilization and a jungle, if we learned that the default rule is respect for human beings, respect for life, liberty and the pursuit of happiness as the Declaration of Independence tried to tell the world. What a different world it would be if police in America acted like our servants, not our rulers, that they don’t have a God-given right to issue commands but that like most of us, the magic word is “please.”

It’s time to imitate the British and take the guns out of the hands of the cops and leave to special rules those more unusual occasions when guns should be issued for specific jobs and reasons. The ordinary rule must be to use our heads instead of blowing away everyone in sight, leaving only death and destruction in the wake of the police.

— This commentary was broadcast on WAMC Northeast Report, August 4, 2015.


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