Friday, July 31, 2015

It’s easy to tell a good cop from a bad cop, right? Think again

Today's blog appeared originally in Salon

On Wednesday, University of Cincinnati police officer Ray Tensing was indicted for murder for shooting Samuel DuBose. His indictment brings to center stage an urgent question: How can we improve policing in America?

Depictions of alleged police brutality dominate the news. A week does not go by without the latest video of police shooting someone, using physical force to subdue someone, or, as in the case of Sandra Bland, verbally abusing someone and jailing them for a petty offense.

More often than not, the victims seem to be people of color.

If only we could separate police officers into good cops and bad cops.

We like to think we know the difference, of course: Good police officers do not racially profile, use excessive force, verbally abuse people, arrest individuals for petty offenses or let them die in jail. The problem is that the good cop, bad cop dichotomy is simply false.

If we could easily tell good cops from bad cops, the solution would be easy: fire the bad ones – the racist ones, the ones who use inappropriate force. But it is not that simple. Any police officer can turn bad.

Why? Part of the cause is that laws on the use of force favor the police, making it difficult to win cases and hold them accountable for their actions.

Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

The problem is, this is very hard to do – and therefore it’s tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.

And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen’s interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.

In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.

Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.

These problems in the law have helped create the problems we see in the headlines today.  Good cops and bad cops aren’t born that way.  Police officers develop their operating procedures and cultures based on the legal frameworks in which they work. The law needs to strike an appropriate balance between police judgments on the use of force and the rights of the public. Presently the law has tipped too far in favor of police.

Saturday, July 25, 2015

Politics, Drugs, and Sports: Thoughts on Clinton, Trump, Medical Marijuana, and the Vikings

The 2016 presidential race is effectively over already in 40 states.  In places such as New York and Texas, Republicans and Democrats respectively might as way stay home on election day because the chances of the voters in these states electing their party nominee are slim to none.  But it is small group of ten swing states (and Minnesota is not one of them) that will decide the election.  This is the conclusion and subject of my new book Presidential Swing States: Why Only Ten Matter.  Whomever wins in these states wins the presidency.  And if that is true then the Democratic and Republican frontrunners both are in trouble.
Both Donald Trump and Hilary Clinton are leading the polls in their party. According to a new Quinnipiac University Poll Donald Trump has huge negatives in three critical swing states–Iowa, Virginia and Colorado.  The same poll has Clinton trailing Walker, Bush, and Rubio in these states, even though she still has a lead overall against Republican contenders according to other polls.  For Clinton, this is a significant turnout around where just a couple of months ago she enjoyed strong leads over all Republicans, and even was far outdistancing Bernie Sanders
But because the presidential race (and even the primaries and conventions) are a 50 state (plus DC) contest due to the Electoral College, national polls mean little–it is about what happens in individual states.  For Trump this suggests that he faces major problems should he get the nomination–he may be unelectable among swing voters in swing states, some of which, such as Colorado, have a significant Hispanic population.  Of course his other problems–his disconnect between his brain and mouth and the fact that his first place is really only about 15% in the party polls, suggests major problems for Trump and for the Republicans.  It is not clear which is worse–Trump as the party nominee who drags the entire party down across the country–or Trump  as a third party candidate who drags the Republicans down and costs them a presidential race.  Assume Clinton and Bush get the nominations, this might be a repeat of 1992 when another third party candidate by the name of Perot ran against a Bush and Clinton, leading to a Democratic victory.
But Hilary Clinton and the Democrats too face problems.  Clinton’s problem in swing states also raises questions about her prospects of winning in a two way race.    Her big negatives and high name recognition make it unlikely she can really change her image as she is trying to do.  She is who she is.  Yes much of her criticism is sexist and the product of a smear campaign, but that is the reality she must face and yelling foul does not change much.  Should she get the nomination she faces problems winning the swing states not only because many swing voters will not vote for her but because the Republicans will use her to activate all types of misogynists and Hilary-haters.  Karl rove penned a recent essay declaring Clinton has a likeability or relateability problem still and Republicans will exploit that.  As a politically savvy friend of mine pointed out, Clinton will be a terrible draw at the top of the ticket.  For example, Clinton nomination will probably hurt Democrat’s prospects to win back the Senate and in Minnesota she will not help in knocking off Congressman Kline.
Finally, the money is still on Clinton to win the nomination but she could be damaged.  Weeks ago on Esme Murphy’ radio show I discussed how  Clinton remains weak in caucus states just as she was in 2008.  Image a scenario where Sanders wins the Iowa caucus (not impossible) and then does really well in New Hampshire (next to his home state of Vermont).  Clinton is damaged much like McCarthy damaged Johnson in 1968.  By the time we get to Minnesota I can see it too going for Sanders–he has the passion of the grassroots, Clinton does not.

Drugs and Sports
Two local stories deserve comment.
First, the roll out of medical marijuana so far is horrible.  Beyond the stories of Leaf Line  hiring three former or present states officials or representatives to work for them (raising tons of questions about ethics, perhaps illegal behavior, and whether the original bidding process for distribution rights was fair), there is the issue of so far only 340 individuals certified for usage for the medical marijuana.  There are few doctors registered to prescribe, fearful both of their licenses (pot is still illegal under federal law) and because there is still no scientific evidence of the value of pot.  While the State of Minnesota may not be interested in whether medical marijuana makes money, the private companies have to think about that.  With such a restrictive program and too few customers one wonders about the economic viability of the program.
Also, Leaf Line appears to be selling medical marijuana for about $350 per ounce.  Because  it is an experimental drug I am not sure insurance will cover it.  Because of this individuals may have to pay out of their own pockets to purchase it.  It probably will be cheaper to buy a dime bag from your friendly neighborhood dope dealer instead.
Finally, the Vikings stadium deserves comment.  One is the story points out that the Vikings stadium was one of the five worst sports deals negotiated with a government.  Minnesota tax payers got fleeced–Dayton and the legislature did a horrible job in negotiating the deal and we still have no idea regarding all that was promised since so much was dealt behind closed doors.  Second, the 12 person state legislative panel meant to oversee the Vikings project has not met in a year.  Effectively, there is little oversight here.  Finally, as Jay Kolls has pointed out in a channel 5 television segment I did with them, the development around the site in Minneapolis is a saga in back door deals.  The Vikings already has exclusive rights for 80 days on the public park being built next to the new stadium and Minneapolis is looking for more corporate sponsors for it.    One wonders what deals they will get on exclusive use and also I wonder whether I can show up to this public park and protest public funding for sports stadiums!

Wednesday, July 15, 2015

Technically, Ted Cruz And Greg Abbott Should Be Disbarred

Today's blog appeared  on July 15, 2015  at

Technically, Ted Cruz And Greg Abbott Should Be Disbarred

In June, the Supreme Court ruled that the Constitution protects the right of same-sex couples to marry and that states are required to issue them marriage licenses. Yet many public officials have publicly encouraged people to break the law. Among them are attorneys, such as Texas governor Greg Abbott and U.S. Senator Ted Cruz. They may frame their opposition as standing up for what’s right. But according to the ethical rules of lawyers, public officials who are attorneys defying the Supreme Court by refusing to perform same-sex marriage ceremonies or encouraging others to do the same should be disbarred.

Article VI of the Constitution makes it the supreme law of the land. The Supreme Court gets the final say on what the Constitution means. The Court may be wrong, and on occasion it has been, such as with slavery and the separate-but-equal doctrine. Yet until it is overturned by constitutional amendment or it reverses itself, the Supreme Court’s rulings on the Constitution are binding precedent on all lower courts and public officials. Every lawyer and law student knows this.

Public officials are entitled to express disagreement with Supreme Court decisions, but they are not free to disregard them, or encourage others to do so because they are legally and ethically bound to obey them. They are in a different position from ordinary citizens when it comes to civil disobedience and defying the Supreme Court. Individual citizens may ignore the Supreme Court on matters of conscience, but at their own legal peril. Public officials do not have this luxury. Almost all public officials, including elected, appointed, and civil service across the country take an oath to uphold and defend the Constitution.

Refusing to follow a Supreme Court ruling as a public official, especially when one takes an oath to obey it–and even more so when one is entrusted to enforce the law–is illegal. That alone limits their ability to invoke conscience as an excuse to disobey. Now add to that an additional issue: What if the public official is an attorney?

The American Bar Association designed the Model Rules of Professional Conduct to define ethical duties of attorneys. State Supreme Courts have adopted versions of the Model Rules as binding upon attorneys who practice law in their jurisdictions. Attorneys are not free to ignore them–compliance is conditioned upon being licensed to practice law–and failure to obey could result in disbarment.

In the preamble, the Model Rules declare that lawyers must “demonstrate respect for the legal system and for those who serve it, including judges.” The Model Rules state that it is permissible to disagree with court decisions, but lawyers have a duty to uphold the legal process. This includes respect for, and compliance with, Supreme Court decisions. Model Rule 3.5 admonishes an attorney not to “engage in conduct intended to disrupt a tribunal.” Rule 8.4 declares that it is professional misconduct for attorneys to violate these rules, or to commit an illegal act that reflects adversely on their fitness to practice law. Rule 1.6 prohibits attorneys from using their legal skills to help others commit or plan a crime.

For Greg Abbott, Ted Cruz, and other attorneys who are public officials, their refusal or advocacy to others to refuse to perform same-sex marriages is both illegal and unprofessional conduct. Attorneys as public officials are legally and ethically bound to comply with the Supreme Court same-sex marriage ruling. Their refusal to do so means they should face disciplinary action for their behavior, and other attorneys who know of their contempt for the law are required to report them.

Wednesday, July 8, 2015

Getting the Money Out of Politics: Two Essays

Hi all:

On July 8, I had two different essays published which address the role of money in politics.  One essay takes us along the history of how our campaign finance laws broke down, the other describes four fixes the president can take to act.  I have reprinted both essays in this blog.

“The Supreme Court, Public Opinion, and Money and Politics,” DEMOS Policy Shop, July 8, 2015\

“A Federal Court Just Threatened Citizens United,” Talking Points Memorandum, July 8, 2015

The Supreme Court, Public Opinion, and Money and Politics, DEMOS Policy Shop, July 8, 2015

Is it a problem when the Supreme Court is out of step with public opinion? While in many cases
the answer is no, when it comes to the question of money and politics and the financing of
campaigns and elections, its counter-majoritarianism is a threat to democracy.

Contrary to the belief of many, American politics is not simply a majority rule, winner-takes-all
system. As designed by the Framers in 1787 and modified by the Bill of Rights, America’s
constitutional democracy is one of majority rule tempered by minority rights. James Madison’s
famous Federalist Paper number 10 discusses the dangers of majority faction, describing how
the complex machinery of checks and balances and separation of powers is meant to restrain
majority faction. Majorities generally get their way on most issues, but when it comes to the
right to free speech for example, no majority gets the right to tell a minority what they get to
say or think.

The American constitutional system contains numerous anti-majoritarian institutions to protect
minority rights. The Supreme Court serves an important role in protecting minority rights,
often at the expense of being counter-majoritarian. But that counter-majoritarianism facilitates
America’s constitutional democracy, protecting minority rights and preventing a majority from
using its numbers to entrench its power.

Yet the Supreme Court’s counter-majoritarianism does not always enable democracy—
sometimes it can inhibit it. Consider the issue of the role of money in politics. A June 2, 2015
New York Times survey found that 84% of the American public believes money has too much
of a role in American politics and that majorities (or near majority with Republicans) do not
believe that money given to candidates is a form of protected speech. The Supreme Court,
especially under Chief Justice Roberts, in giving increased First Amendment protection to the
use of money for political purposes in cases such as Citizens United v. F.E.C. and McCutcheon v. F.E.C., is out of step with public opinion.

Yes, critics may argue that polls such as this are meaningless or that the Court is doing no
more than protecting unpopular speech. But what is going on here is not about regulating
content or viewpoint expression or suppressing unpopular groups or oppressing discrete and
insular minorities. What we see here instead is the public describing how they think the
American politics process should operate, and such views do deserve significant deference.
Once I had the pleasure of meeting with former Watergate special prosecutor Archibald Cox
who stated that election laws were the “rules that determined the rules of game.” By that he
meant that the rules of election law, including how money could be spent for political purposes,
determined how the game of politics and democracy would be played. Decide these prior rules
and they determine the latter. His point is simple—there are important values that a democracy
must articulate and enable. Our Constitution sets the ground rules for ordinary politics,
including how campaigns and elections are to be run and funded.

What the public is saying is something simple—the First Amendment has not enshrined money
as a constitutional value defining how political power should be allocated. In his famous 1905
dissent in Lochner v New York, Justice Holmes was famous for declaring the Constitution does
not “embody a particular economic theory.” There he rejected the idea that laissez faire
capitalism was a constitutional theory. Here, the public is making a similar point that neither the
Supreme Court nor critics of campaign finance reform understand. There is an important
difference between the use of money as a constitutional value and its use as a market tool.
Money may be an appropriate medium for financial exchange to buy consumer goods, but it is
not an appropriate constitutional value to distribute political power, influence, and authority.
American politics is “one person, one vote,” not “one dollar, one vote.”

There is a profound difference between politics and markets. Each has their own logic and
values, and operates by different mechanisms. American politics is about equality, respect for
minority rights, public accountability, and transparency. The ability to expend unlimited
amounts of money is not one of the constitutional values that define how American politics
should operate. But even if it is, it must be viewed and balanced in context of all the other
competing values.

This is what the American public is saying in the New York Times survey. They better
understand than the Supreme Court right now that money is not a legitimate tool that should
be the final word driving how decisions are made in American politics. Money cannot be both a
political means and end or value in politics. Campaign finance laws not only protect money
from drowning out minority voices, but also prevent the entrenched few from using their
resources to thwart majority rule. Viewing money and campaign finance laws this way shows
how out of touch the Supreme Court is here in terms of both public opinion and in facilitating

“A Federal Court Just Threatened Citizens United,” Talking Points Memorandum, July 8, 2015

Yesterday, the U.S. Court of Appeals in Washington ruled 11-0 that a ban on federal campaign contributions by individuals who contract with the government is constitutional. After a wave of controversial decisions by Supreme Court that have unleashed a flood of big money into politics, this appeals court decision sends a clear message: Sometimes, more money in politics can be a very bad thing.

Americans agree. According to a poll from the New York Times, some 85 percent of the American people believe that the way political campaigns are funded needs either "fundamental changes" (39 percent) or "a complete rebuild" (46 percent).

Money has become central to American politics. Spending in the 2016 presidential election alone could top $4 billion, with the winning candidate having to raise $1.5 billion.

How did we get into this mess? In 1974, after the Watergate scandal brought down Nixon, Congress established limits on how much people could give and how much politicians could spend on their campaigns, and mandated disclosure to ensure that regular citizens could “follow the money.”

Unfortunately the Supreme Court blew a hole in the 1974 law right away. In Buckley v. Valeo, the Court eliminated campaign spending limits. With no limits, a fundraising arms race began which continues to this day.

Building on Buckley, John Roberts’ Supreme Court has largely gutted most of the post-Watergate reforms. In Citizens United v. FEC the Court not only struck down a law regulating independent expenditures but it also freed up corporations to spend unlimited money directly to influence elections. In McCutcheon v. FEC it voided aggregate contribution limits to federal candidates, ruling that the $123,000 cap on how much one individual could contribute violated the First Amendment. Both decisions were done under the belief that the use of money for political purposes is protected speech.

The Supreme Court has not acted alone. Candidates and special interest groups have exploited legal ambiguities and used tax-exempt non-profit legal shells for political purposes to escape contribution limits and disclosure rules. Groups are challenging other laws, anticipating that the Roberts Court will eventually strike them down, too.

The result is twofold. First, groups and candidates are flouting any remaining regulations, leading to a dramatic growth in unregulated and undisclosed spending, especially since Citizens United.

Second, special interest money has pushed the Democrats to the left and Republicans to the right, preventing bipartisan problem-solving on issues across the board.

So can anything be done?

Actually, yes. All hope is not lost. And yesterday’s court decision is a step in the right direction. America need not wait for Congress or the Supreme Court to come around. The president and various federal agencies have the power to make several small but important reforms. Here are four:

1) The president could issue an executive order to require federal contractors to disclose all political contributions they make and to bar contractors from bidding on federal contracts for two years if they spend too much to influence a federal race or a member of Congress.Yesterday’s ruling upholds a ban on individual “pay to play” contributions to prevent conflicts of interest or undue influence. A new order could build on that ruling.

2) The Securities and Exchange Commission could make a rule requiring publicly traded companies to disclose all expenditures of money for political purposes and to obtain shareholder assent to use money for these purposes.

3) To reduce candidates’ need for costly commercials, the Federal Communications Commission could issue require that broadcasters to provide reasonable free air time to all House, Senate, and Presidential candidates. The public owns the airwaves, so there is nothing to stop the FCC from doing this.

4) The IRS could require that non-profits whose major purpose is political advocacy register with the FEC and disclose their donors and expenditures.

These reforms are not enough, but they show that something can be done now—and they would give us the tools we need to better understand the money flooding our political system. That knowledge is a critical first step that will build the case for overturning Buckley and Citizens, and, ultimately, healing our democracy.

Postscript:  Two additional points.  The first is that if I had to make one change in the TPM essay it would be to say that big money has less so moved Democrats to the left than either to the right or simply the money has entrenched their positions and made it impossible for the party to respond to the left.  Second, back in 2010 Senator Al Franken's  legal counsel had contacted after Citizens United was decided.  I was asked to offer suggestions on what could be done.  I related a variation of the above four ideas to counsel.  A few weeks later I called back to ask what happened.  I was told that the Senator liked my suggestions and communicated them to President Obama, who simply decided not to do anything.