TTim Lynch is the director of the Cato Institute’s project on criminal justice, which, under his direction, has become a leading voice in support of the Bill of Rights and civil liberties. His research interests include the War on Terror, overcriminalization, the drug war, the militarization of police tactics, and gun control. In 2000 he served on the National Committee to Prevent Wrongful Executions. Lynch has also filed several amicus briefs in the U.S. Supreme Court in cases involving constitutional rights.

Worst of the Month — May

So for May we’ve chosen the case of Deputy James Haworth from the Pasco Police Department in Washington.  Haworth is facing felony rape and sexual assault charges involving a teenage family member.

Here is an excerpt from the Tri-City Herald:

Haworth is accused of sexual contact with the teenager several times from 2008 to 2013, including when she was sleeping. Some of the allegations occurred when she was younger than 17, according to court documents…

When she was 17, she drank alcohol with Haworth and became intoxicated, according to court documents. She accused him of taking advantage of her drunken state to perform sexual acts both when she was unconscious and when she was awake.

Haworth’s electronic devices were searched and investigators found several nude photographs of the teen taken when she was about 18, according to court documents.

She said she had taken them to send to a boyfriend but had not sent them to Haworth and did not know Haworth had them. She said she had deleted them.

Haworth said he had not seen the photographs that were found on his iTunes backup account and did not know how they got onto his phone, according to court documents.

Prior to his recent suspension, Officer Haworth was assigned to a task force that investigated sex crimes against children.

Learn Your Rights

I have an article in USA Today about some recent cases where people were arrested for invoking their constitutional rights.  Here’s an excerpt:

Just because law enforcement have us at a serious disadvantage does not mean we should let them walk all over us. The wise course to take during police encounters is to obey commands, but to also politely and calmly decline requests. Here’s the key point: Law enforcement are trained to blur that distinction. For example, they may knock on your door and say, “Let’s talk.” In such cases, individuals have to seek the clarification by asking, “Are you ordering me to open my door and allow a search?”

If it isn’t an order, the choice is ours to make. If you give the police permission to search your home without a warrant, that’s your prerogative. If you decline to give your permission, that’s your prerogative also.

There is not enough space to say everything that needs to be said.  For example, the article’s focus is on police stops in public–traffic stops or on a city sidewalk.  Different rules apply for airport searches, or if you are seeking entrance to a government building.  For those anxious to learn more, follow the links on the homepage here: Lawyer Up and Know Your Rights.

Worst of the Month — April

So for the month of April we’ve selected the Town of Colorado City and the City of Hildale which are located on the Arizona-Utah border.  Last month, U.S. District Judge H. Russell Holland issued an order based on findings made by a jury that the Colorado City Marshals Office “engaged in a long-standing pattern of abuses that included false arrests, unreasonable seizures of property, discriminatory policing on the basis of religion, and violating the Establishment Clause of the First Amendment.”

According to the Department of Justice, police officials engaged in a decades-long pattern or practice of police misconduct and housing discrimination.  Judge Holland concluded that officers turned a blind eye to criminal activity involving FLDS Church leaders or members, including supporting a fugitive and ignoring underage marriages, unauthorized distribution of prescription drugs, and food-stamp fraud.

The findings of this investigation reflect poorly not only on the towns, but also state attorneys general’s office, which should have take action much sooner so that federal intervention would not have been necessary.

Police Shootings Back in the News

This is cross-posted from Cato@LIberty:

Police shootings are back in the news. Michael Slager has pleaded guilty to federal charges involving the killing of Walter Scott. Federal officials have declined to bring charges against the officers involved in the shooting death of Alton Sterling. Meanwhile Texas officer Roy Oliver has been fired in the wake of the shooting death of 15 year old Jordan Edwards.

Each shooting incident has to be considered separately to take account of all the surrounding circumstances. There are a range of possibilities—from self-defense on the part of the officer, to tragic accident or mistake, to manslaughter or even first degree homicide. To ensure just outcomes, one of the most important things is to have independent, impartial investigations whenever there is a questionable shooting, especially where someone is killed or injured. Preferably, this will be done by a completely separate police department or the state attorneys general office, rather than the federal government. Another best practice for police shootings involves transparency. Police departments should identify the shooter and disclose his or her record, such as previous involvement in shootings or previous lawsuits alleging wrongdoing. Authorities should also make videos available. Mayor Rahm Emanuel tried to make the Lacquan McDonald case go away with a quiet legal settlement. It was only when a reporter went to court to seek the release of the video that the scandal was exposed and real movement for police reform could begin.

For related Cato work, go here, here, and here.

Judge Kozinski — ‘He saved my life.’

Great interview with Federal Judge Alex Kozinski with Leslie Stahl of 60 Minutes on the Debra Milke case.

Here’s the gist of the story.  Milke was interrogated by a police detective.  The officer emerges from the room saying Milke confessed to murder.  Milke denies it and maintains her innocence.

There is a trial and that’s the sum total of the evidence against her.  The officer says she confessed to him.  No recording.  No signed confession.  Other men that were connected to the killing said she was not involved.

On the basis of that one officer’s testimony, Milke not only lost her liberty, she almost lost her life–as it was a death penalty case.

When Milke’s lawyers dug into the crucial detective’s background, they found evidence of lying and misconduct in other cases.  That’s when Judge Kozinski issued his ruling saying the government’s case was so weak that it could not stand.  Milke was released from prison.

I am presently editing a collection of Judge Kozinski’s superb opinions and the Milke case is among them.  It will be a great book.

Go here to see Judge Kozinski debate another federal judge on problems with the American criminal justice system.

‘The First Priority is to do Justice’

From Andrew McCarthy, former federal prosecutor, writing over at National Review Online:

It is not possible to have the rule of law unless those charged with executing the laws are held accountable when they are derelict. And it is not possible to have accountability when the processes for discovering derelictions do not work.
Those processes have to be mended. It is beyond time to reinvigorate the principle that law enforcement’s first priority is to do justice. Not only must government officials follow the rules; their adherence must be monitored — not to harass the law-abiding but to root out the corrupt. Examples must be made of those who abuse their powers. It is not sufficient that the system achieves justice most of the time.
Read the whole thing.  Nice to see this from the Right.  More please.

Police Shooting Case at Supreme Court

Today, the Supreme Court declined to review an appeal in the case of Salazar-Limon v. City of Houston  (scroll down). Of course, the Court declines most appeals and can only review a small fraction of the cases brought to it.  What is noteworthy about this case is the dissent filed by Justice Sotomayor.  She wanted to explain why the Court’s denial was a mistake.

The case involved a police shooting in Houston.  The man, Ricardo Salazar-Limon (SL), survived the shooting and later sued for excessive force.  Unfortunately, his lawsuit was thrown out before there was even a trial.  That was Sotomayor’s objection–the case was improperly decided by a judge before trial when a jury should have heard the controversy.  Salazar-Limon was shot by the police and now the government has tossed away his legal claim of excessive force.  By allowing the lower court ruling to stand uncorrected, the law is now tilting against the victims of police misconduct and puts dangerous power in the hands of police.

Here’s the background: SL was driving on a Houston freeway around midnight.  He had been drinking.  Officer Chris Thompson pulled him over, and asked for his license.  Thompson checked for warrants, but there were none.  SL was asked to exit his vehicle –probably for a sobriety test.  It seems that when Thompson moved to put handcuffs on SL, things escalated fast and their stories diverge.  SL says he started walking away, and that he was shot in the back just seconds after Thompson had called out to him to stop.  Thompson claims that SL responded to his order by turning around and making a motion toward his waistband as if he were about to draw a gun, so Thompson, who had already drawn his weapon, shot SL.   SL had no gun.

As noted, an excessive force claim was filed.  The police officer asked the district judge to resolve the case in his favor prior to trial, arguing that he was immune under the doctrine of qualified immunity.

When the facts are disputed, cases typically go to the jury.  When there is no real factual dispute, a judge might decide the case based on the law.  That’s what happened here, but it remains controversial.  Officer Thompson and the lower courts took the position that since SL did not deny reaching for his waistband, the court could decide the case without a jury.  In that situation, the courts said Thompson would have been justified in using deadly force–even if no gun is found later.  The perceived threat is sufficient.

Sotomayor said the courts were making an awful mistake.  SL’s legal claim did dispute the facts–that he did not turn to Officer Thompson till he was shot in the back.  SL is basically saying that he got shot for disobeying an order given just seconds earlier and that’s excessive force.

Sotomayor isn’t saying that Officers Thompson was wrong to shoot.  She is making a more modest argument.  The jury should have heard both sides and then decided the case after hearing all the evidence.  She believes the courts are deciding too many of these kinds of cases prematurely and that the victims of police misconduct are having their claims improperly rejected.  She’s right.  Alas, only Justice Ginsburg joined Sotomayor’s dissent.  Still, the dissent raised the profile of the problem and will help ignite a debate in this important corner of the law.

We should note that Sotomayor cites this article by Radley Balko that collects cases of persons shot by police where the justification was “reaching for the waistband” and it turned out there was no gun.  That is just too thin a basis for the use of deadly force on people.  To be clear, the officer could draw his weapon and he could take cover and issue more commands to a suspect to show his hands.  But opening fire without seeing a gun in such circumstances seems wrong.  At the least, the jury should have decided whether the shot was truly justified.

 

C-SPAN Interview on the Federal Role in Handling Police Misconduct

With Jeff Sessions as Attorney General, there will be a drastic decrease in federal interventions over local police departments.  I’ve said it before and I’ll say it again, my view is that the Right is wrong if they think there are no systemic problems in American policing.  However, the Left is wrong to think the feds can come riding to the rescue to fix those departments.  That’s another example of the triumph of hope over experience.

More on my thesis here.

Justice Dept Reviews Consent Decrees

Yesterday, it was reported that Attorney General Jeff Sessions is reviewing previous and pending consent decrees between the Department of Justice and local police departments around the country.  My view is that both the Left and Right misdiagnose the problem.  The Right does not really appreciate the scope of the police misconduct problem, but they’re right that it is primarily the responsibility of local officials to address the problems that do exist.  The Left knows scope of the problem, but too often seeks federal intervention which does not have a great track record and has the enabling effect of letting local officials escape accountability for their fecklessness.

Note this headline from today’s Business Insider:   “Police departments vow to move forward on reform despite Sessions’ move to roll it back.”  You mean departments are going to clean up their act if the Trump administration takes no action?  Perfect!

I elaborate more on this policy matter here.