Recently in Policing Category

After Judge Barry Williams acquitted Officer Caesar Goodson on June 23 of all seven charges against him in the death of Freddie Gray last year, including second-degree murder, Baltimore State's Attorney Marilyn Mosby is 0 for 3 in her "failed or flailing cases," with the latest acquittal being her most devastating blow yet, says Heather Mac Donald in the City Journal.  She writes,

The ill-fated prosecution of six Baltimore police officers for the accidental death of Freddie Gray in April 2015 was the spawn of the Black Lives Matter movement. The preposterously unjustified charges against the officers grew out of the BLM conceit that cops are racist murderers. On May 1, 2015, state's attorney Marilyn Mosby invoked Al Sharpton's extortionist chant of "No Justice, No Peace" as a motivation for her charging decisions, after rioters had destroyed the livelihoods of dozens of Baltimore's workers and small businessmen.

It is therefore fitting that Mosby's vendetta is collapsing all around her, based as it is on an ideology composed of demonstrable lies about law enforcement.
All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  

The War on Cops and the Spike in Murder

Murder has been on a shocking surge for a year and a half.  There are those who want to pretend the cause is a mystery, or that it's a statistical blip, or that even if it's real, It doesn't mean  --  in the favorite phrase of those who blink reality  --  that "the sky is falling."

It is of course true that the sky is not falling, as it tends not to.  But murder is spiking, and it has a cause.

The main cause is that the police have become considerably more cautious due to a cascade of unhinged criticism.  

The police deserve and get scrutiny.  They are public employees with tremendous power. The problem is not scrutiny.  The problem is bansheeism.

The best in the business in diagnosing the what we're facing is Heather MacDonald.  Her C-SPAN interview is here.
Kent has a thoughtful post about Judge Jon Newman's suggestions to broaden the means to hold police accountable for infringing the constitutional rights of citizens.  I would add for the moment only four brief points which, together, make me wonder whether Judge Newman's op-ed is fully forthcoming.

First, the Judge uses the Freddie Gray acquittal as a springboard to note the supposed inadequacies of present law, but never hints that Gray's family already filed suit and, ten months ago, received a multi-million dollar settlement.  It is impossible for me to believe either that Judge Newman did not know this or thought it irrelevant.

Second, the Judge likewise never hints that the issue of practical and legal immunity for the police has been considered carefully by the Supreme Court.  Kent remedies this deficiency, but it should never have been Kent's job.  Why is a federal appellate judge entirely failing to disclose to a lay readership the fact and the substance of the Supreme Court's thinking?

Third, Judge Newman simply assumes that the Baltimore police were liable for tortious, if not criminal, conduct.  He does this without quoting a single word from the Baltimore trial court's factually detailed opinion, which, to put it gently, puts Judge Newman's assumption in doubt.

Last, Judge Newman says this: "Juries, and even judges in non-jury trials, are reluctant to convict police officers of a crime, even in the face of ample evidence." Yes, well, that might be because, as Judge Newman also full well knows, and in other contexts insists upon, "ample" evidence is insufficient to convict.  It takes evidence proving every element of the offense beyond a reasonable doubt.

Can we expect something more balanced than this from a veteran federal judge?
Senior Circuit Judge Jon Newman of USCA2 has this op-ed in the WaPo, proposing expanded civil remedies for police misconduct.  It is an important subject and worthy of serious consideration, but I think Judge Newman's article may mislead folks who are not familiar with the law in this area, both nonlawyers and lawyers who specialize in other areas.  Judge Newman writes,

The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.

Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.

But when an officer uses excessive force or makes an unlawful arrest or search, proving wrongful conduct is not enough. Under Section 1983 of the federal civil rights statute, the officer can escape liability with the special defense of qualified immunity -- showing that he reasonably believed his conduct was lawful, even if it was not. And if the jury finds the officer liable, federal law does not require his employer to pay the award.
There is some truth here, but there is more to it.
This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.

As Bill noted earlier today, Officer Caesar Goodson was acquitted today of charges arising out of the death of Freddie Gray.  Because Goodson chose to waive a jury trial and have his case decided by the judge, we have a full explanation of the verdict.  The transcript is here.

The case is State v. Goodson, Circuit Court for Baltimore City, No. 115141032.

Freddie Gray Prosecution Implodes

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Small-time Baltimore drug dealer Freddie Gray was alive when he was placed in a police van and all but dead when he came out (he died a few days later).  Six police officers, three white and three black, were charged with various crimes related to his death.

I said at the time (e.g., here, here, here and here) that the States Attorney, Marilyn Mosby, struck me as a politicized, grandstanding amateur who would be headed for trouble.  In any other context  -- that is, where the defendants were not police  --  her behavior, consisting of events indistinguishable from campaign rallies, would be scorched by civil liberties groups as unprofessional if not borderline unethical. But such groups have been quieter than the proverbial church mouse.  I guess cops aren't worthy of due process.

Here are the results so far:  In an overwhelming black and liberal city, the first officer got a mistrial.  The second got an acquittal on all counts. This morning, the third, against whom the most serious charged was lodged (negligent homicide), was likewise acquitted, also on all counts.

I have no personal knowledge of the facts of the case.  An acquittal does not mean the defendant didn't do it.  But to go to trial three straight times and get not a single count of conviction is, in my experience, nearly unprecedented.  I strongly suspect the court found this prosecution just as ill-conceived and ideological as I did and, more important for the purposes for which trials are convened, just as lacking in solid evidence of guilt.
A:  I don't know, but a DOJ study confirms that the Ferguson Effect  --  i.e., unhinged, ideological criticism of the police and their resulting increased caution  -- has, indeed, contributed to the rise in murder.

Our News Scan has this item, addressing the causes of the crisis-level 17% murder increase last year:

The [DOJ] study offers two explanations regarding the Ferguson Effect and how it has impacted crime, specifically murder. The first explanation asserts that increased police scrutiny in the wake of highly publicized shootings have caused law enforcement to pull back, allowing for criminals and potential murderers to roam freely, undeterred.  The second emphasizes the distrust and discontent that exists between the police and African American communities, resulting in a lack of cooperation with police investigations.*

There are at least two very important conclusions to be gleaned from this study. First, contrary to the Attorney General's and the White House's false assertions, there are indeed "data" showing the Ferguson Effect and its harmfulness (thank goodness Jim Comey was around to tell the truth).  The previously invisible data were found by DOJ itself, after a conveniently long interval to let the previous mendacious narrative sink in.

Good grief.

Second, the study, while a welcome admission of what anyone connected to reality has known for months, has a serious flaw, to wit, it suggests an alternative explanation where none actually exists. 
Frank Newport reports for Gallup:

Americans' confidence in the police has edged back up this year after dropping last year to its lowest point in 22 years. Currently, 56% of Americans have "a great deal" or "quite a lot" of confidence in the police, four percentage points higher than in 2015. Confidence is essentially back to where it was before a series of highly publicized incidents involving white police officers and young black men in several communities across the country.
Time to bring out the elephant in the living room again.  As described by Wikipedia:

"'Elephant in the room' or 'Elephant in the living room' is an English metaphorical idiom for an obvious truth that is going unaddressed. The idiomatic expression also applies to an obvious problem or risk no one wants to discuss.

"It is based on the idea/thought that an elephant in a room would be impossible to overlook."

Lisa Marie Pane and Don Babwin have this story for Associated Press.

CHICAGO -- Violent crimes - from homicides and rapes to robberies - have been on the rise in many major U.S. cities, yet experts can't point to a single reason why and the jump isn't enough to suggest there's a trend.

Still, it is stumping law enforcement officials, who are seeking a way to combat the problem.

"It's being reported on at local levels, but in my view, it's not getting the attention at the national level it deserves," FBI Director James Comey said recently. "I don't know what the answer is, but holy cow, do we have a problem."

You have to get down to the 15th paragraph before the Ferguson Effect is even mentioned, and it is immediately followed by a dismissive comment by the lacking-a-better-explanation expert.  The ongoing efforts to dismantle the highly successful tough-on-crime movement of the past several decades -- ignoring history in order to repeat it -- is not mentioned at all.

The anti-punishment and anti-police crowds (overlapping but not equal sets) have been on a roll for several years now.  When the results that persons of sense warned would follow do follow, the likely causal connection must be ignored or dismissed.

Harvard Law Professor Alan Dershowitz is not someone we agree with often, but his comments on Megyn Kelly's show last night are notable.  The video is here.  The transcript is here and copied, with edits, after the break.

[Editors Note:  Unknown to either of us, Bill and I were posting on the same subject at the same time.  That's okay.  I will leave them both up.  There is overlap, but also some differences in the posts.]
I wrote earlier today about the surge in violent crime across America and its roots in the "Ferguson effect," i.e., the intimidation of proactive policing.  Paul Mirengoff follows up with observations from this morning's American Enterprise Institute forum 

The importance of proactive policing, which is what the Ferguson effect deters, is sufficiently obvious that even liberals understand it. Today at an AEI conference on sentencing reform, Steven Teles, a leading proponent of softer sentencing, expressed his concern that the sentencing reform movement, which has carried the day in some states, will be set back if the crime rate continues to rise and/or if those released pursuant to the reforms commit horrific crimes.

Teles therefore stressed the importance of coupling softer (he calls it "smarter") sentencing with measures to prevent crime, including proactive policing. In other words, sentencing reform, an important agenda item for the left (and for some conservatives), might not be sustainable without the kind of policing the left castigates -- and thereby deters.

But the same mindless accusations of racism that the softer sentencing movement relies on also undergird the virulent attacks on the police that produce the Ferguson effect. Thus, we're quite unlikely to get both a soft sentencing regime and policing that will help society cope with the consequences of having vastly more criminals on the street.

Just so.  The cultural rot and grievance narratives that have produced the push for dumbed down sentencing are certain also to produce continued shrunken policing. Our budding crime wave will stop only when the ideas that have spawned it are exposed and defeated.   

A:  More violent crime, which is surging across the United States.

As Heather McDonald writes in the WSJ:

[T]he evidence is not looking good for those who dismiss the Ferguson effect, from the president on down. That group once included Richard Rosenfeld, a criminologist at the University of Missouri, St. Louis, who was an early and influential critic. Mr. Rosenfeld has changed his mind after taking a closer look at the worsening crime statistics. "The only explanation that gets the timing right is a version of the Ferguson effect," he told the Guardian recently. "These aren't flukes or blips, this is a real increase." 


A study of gun violence in Baltimore by crime analyst Jeff Asher showed an inverse correlation with proactive drug arrests: When Baltimore cops virtually stopped making drug arrests last year after the rioting that followed the death of Freddie Gray while in police custody, shootings soared. In Chicago, where pedestrian stops have fallen nearly 90%, homicides this year are up 60% compared with the same period last year. Compared with the first four and half months of 2014, homicides in Chicago are up 95%, according to the police department. Even the liberal website Vox has grudgingly concluded that "the Ferguson effect theory is narrowly correct, at least in some cities."

Double oooooops.  And it gets worse.

The  full text transcript of Judge Barry Williams's ruling in the trial of Baltimore police officer Edward Nero is available here.

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