As Central Falls Falls
The New York Times has an article today on the plight of Central Falls, Rhode Island, a 19,000-population industrial city that may declare bankruptcy under the fiscal weight of $80 million in pension obligations for police and fire officers. Unlike some coverage of municipal fiscal woes, this one does not dance around the way some of the problem originates in misguided labor policy:
The city, just north of Providence, is small and poor, but over the years it has promised police officers and firefighters retirement benefits like those offered in big, rich states like California and New York. These uniformed workers can retire after just 20 years of service, receive free health care in retirement, and qualify for full disability pensions when only partly disabled.
“Promised” is a word of art here, because the city wasn’t really making all of these concessions on a voluntary basis, as its negotiator explains:
state law called for binding arbitration, which for many years was a clubby process that emphasized comparable benefits all across the state more than any city’s ability to pay.
“Binding” arbitration, just to be clear, does not mean that the city agreed beforehand to settle disputes with the unions by way of arbitration; it means that state law imposed an arbitrator’s edict whether city managers ever signed up for the arbitration route or not. It thus differs from the contractually specified arbitration upheld lately in consumer contexts by the U.S. Supreme Court in AT&T v. Concepcion, a decision assailed by many of the same politicos who see no problem with genuine mandatory arbitration in the labor context.
The crisis in municipal finance wrought by binding public-sector arbitration and related laws comes as no surprise to readers who remember Cato’s excellent 2009 study “Vallejo Con Dios: Why Public Sector Unionism Is a Bad Deal for Taxpayers and Representative Government” by Don Bellante, David Denholm, and Ivan Osorio. (The California city of Vallejo declared bankruptcy in 2008 following the failure of negotiations with police and fire unions over unsustainable compensation.)
One point the otherwise thorough Times article omitted: many politicians in Washington have worked for years to impose a Central-Falls-like legal climate on states and localities lucky or farsighted enough to have avoided one in the past. During last fall’s lame duck session, then-Majority Leader Harry Reid (D-Nev.) tried to push through the truly appalling Public Safety Employer–Employee Cooperation Act, which not only would have forced police and fire unionization on reluctant states and localities but also provided that in case of impasse (quoting Heritage) “States would have to provide a dispute resolution mechanism, such as binding arbitration.” And the misnamed Employee Free Choice Act (EFCA), a priority of President Obama during his first years in office, would have imposed binding arbitration on the private sector. Central Falls may now be hurtling toward the waterfall, but how many other communities are just one political shove away from plunging into the same fiscal rapids?
The Federal Government’s Police Power
Last week, after I responded to Akhil Amar’s op-ed that defended, in an uncharacteristically unthoughtful and ad hominem way, the constitutionality of the individual mandate, a reader suggested that Amar’s argument — particularly that “breathing is an action” that Congress can regulate — reminded him of that Police classic, “Every Breath You Take.” What’s ironic about this suggestion, perhaps inadvertently, is not only the invocation of “breathing” but that the whole Obamacare battle boils down to competing views of federal power: Does the government have a general “police” power or is its authority limited to that finite set of powers listed in the Constitution?
And so, without further ado, here’s how the song would look updated for 2011′s favorite constitutional debate (with apologies to Gordon Sumner aka Sting):
Every breath you take
Every move you make, or
Decide not to take
Even when you flake
We’re mandating youEvery single day
Every word you say
Every game you play
Even if you stay
We’re coercing youO don’t you fuss
You belong to us
How we regulate every step you takeEvery move you make
Every vow you break
Every smile you fake
Every claim you stake
We’re mandating youThe Constitution’s lost without a trace
Since ’37 we go every place
Limits on government you can’t replace
Got rid of those so we’re always in your face
We’re commanding you, no saying pleaseEvery move you make
Every vow you break
Every smile you fake
Every claim you stake
We’re mandating you
Seattle Cop Caught on Tape
A Seattle police officer was caught on tape kicking a man who was lying face down on a sidewalk with his hands already handcuffed behind his back. Whether the off-duty cop was drunk and badgering some women, as some witnesses claim, would make the incident even worse–because the handcuffed “suspect” may well have believed he was coming to the woman’s defense from some creepy guy. In any event, kicking handcuffed persons who are not doing anything is unprofessional and illegal.
Cato held a forum on filming the police and that event can be viewed here.
Giving Cops Bad Incentives to Harass Victimless Behavior
The Washington Post has an interesting report about the huge amount of money that Fairfax County spends to go after gambling. The story cites critics who ask “why law enforcement spends valuable time and money on combating sports gambling. The answer is obvious — and explicit in the story: “…police in Virginia are allowed to keep 100 percent of the assets they seize in state gambling cases.” In other words, harassing the gambling business is a profit-making endeavor for police. And it also can be deadly since cops killed an optometrist during a SWAT arrest. The Institute for Justice has a powerful video on the dangers of “policing for profit,” and Fairfax County is just one bad example of how this lures cops into misallocating resources to fight behaviors that shouldn’t even be illegal.
It’s football season, and for millions of Americans that means betting season. …It’s a crime that Fairfax County police take seriously. So seriously that in one recent gambling investigation, they spent — and lost — more than $300,000 in cash to take down a Las Vegas-based online bookie and his group of Fairfax-based associates. …Police critics have long wondered why law enforcement spends valuable time and money on combating sports gambling. …Unlike drug cases, police in Virginia are allowed to keep 100 percent of the assets they seize in state gambling cases, so other agencies or divisions receive no benefit. And the vast majority of those arrested are placed on probation. “What a waste,” said Nicholas Beltrante, founder of the Virginia Citizens Coalition for Police Accountability, a group formed earlier this year in part to combat unnecessary police spending. “The police should be utilizing their resources for more serious crimes.” Fairfax’s most notorious gambling investigation ended in disaster. In 2006, an undercover detective lost more than $5,000 while betting on NFL games with optometrist Salvatore J. Culosi — and when the detective called in a SWAT team to make the arrest, an officer shot Culosi once in the heart and killed him. …Since 2004, the squad has seized about $1 million in cash and assets annually, but some of those cases landed in federal court, where money is divided among various agencies, Schaible said. …One case from 2006, that of admitted bookmaker Kyle Peters, resulted in police seizing and keeping $566,940 from his bank accounts.
Cops and Cameras: The Future of Policing
The USA Today editorial board is criticizing the use of state wiretapping laws to prosecute citizens who tape on-duty police officers. I have written on this extensively: here, here, here and here. The editorial joins the Washington Examiner and Washington Post in this critique.
USA Today’s opposing view (presented by two AFL-CIO police union officials) provides this comment:
In today’s environment, police officers have to assume that every action they take is captured on tape, somewhere. They must be comfortable that everything they say or do in the course of their duties may be shown on the 5 o’clock news.
Our problem is not so much with the videotaping as it is with the inability of those with no understanding of police work to clearly and objectively interpret what they see. Videotapes frequently do not show what occurred before or after the camera was on, and the viewer has no idea what may have triggered the incident or what transpired afterwards.
This is often true. The recordings that prompt public outcry are sometimes “gotcha” moments where the camera only captures the use of force with no context.
Here is an example from Maryland that shows officers arresting a woman during the Preakness Stakes. At the end of the video, an officer says to the person recording the arrest: “Do me a favor and turn that off. It’s illegal to videotape anybody’s voice or anything else, against the law in the state of Maryland.”
As the USA Today editorial notes, this is a misreading of Maryland law that is kept alive by the prosecution of Anthony Graber and others who record the police. My commentary on the issue is here. As Carlos Miller points out, Maryland prosecutors come to different conclusions about the scope of the state’s wiretap law.
Baltimore Police Officer Fires 13 Shots, Kills Unarmed Man
An off-duty Baltimore police officer and a former Marine had a disagreement about the Marine’s advances toward the officer’s girlfriend. The officer ended it with thirteen rounds fired from his service pistol, six hitting the Marine and killing him. Baltimore police have confirmed that the Marine was unarmed. The officer refused a breathalyzer at the scene. (HT Instapundit)
It gets better. The officer was involved in another shooting five years ago, which was determined to have been justified, but the officer was disciplined… for being intoxicated.
I suspect that if your average citizen had defended his significant other’s honor with a dozen or so bullets, he would be in jail. Not so for the officer, who remains on administrative leave.
Of course, anyone recording the exchange that led to the shooting could be prosecuted for a felony under Maryland’s wiretapping law. Just ask Anthony Graber.
Stopping and Searching
Police in New York City conducted 575,000 “stops” in 2009. The actual number could be higher–depending on the number of stops the police decided not to record on paper. The ‘stop and search’ is a legally dubious tactic that persists largely because white, middle-class people are mostly unaffected by it. It is bad enough when the officers are in uniform, but gets worse when the police are in plain clothes and approach people rapidly. The police “target” may have only seconds to determine whether he/she is facing a mugging or a police stop. More here.
‘The Dumbest Terrorist In the World’?
Businessweek has a story quoting a former federal prosecutor in Brooklyn, Michael Wildes, speculating that Faisal Shahzad, the would-be Times Square bomber, made so many mistakes (leaving his house keys in the car, not knowing about the vehicle identification number, making calls from his cellphone, getting filmed, buying the car himself) that he may be the “dumbest terrorist in the world.” But Wildes can’t accept the idea that an al Qaeda type terrorist would be so incompetent and suggests that Shahzad was “purposefully hapless” to generate intelligence about the police reaction for the edification of his buddies back in Pakistan.
Give me a break. This incompetence is hardly unprecedented. Three years ago Bruce Schneier wrote an article titled “Portrait of the Modern Terrorist as an Idiot,” describing the incompetence of several would-be al Qaeda plots in the United States and castigating commentators for clinging to image of these guys as Bond-style villains that rarely err. It’s been six or seven years since people, including me, started pointing out that al Qaeda was wildly overrated. Back then, most people used to say that the reason al Qaeda hadn’t managed a major attack here since September 11 was because they were biding their time and wouldn’t settle for conventional bombings after that success. We are always explaining away our enemies’ failure.
The point here is not that all terrorists are incompetent — no one would call Mohammed Atta that — or that we have nothing to worry about. Even if all terrorists were amateurs like Shahzad, vulnerability to terrorism is inescapable. There are too many propane tanks, cars, and would-be terrorists to be perfectly safe from this sort of attack. The same goes for Fort Hood.
The point is that we are fortunate to have such weak enemies. We are told to expect nuclear weapons attacks, but we get faulty car bombs. We should acknowledge that our enemies, while vicious, are scattered and weak. If we paint them as the globe-trotting super-villains that they dream of being, we give them power to terrorize us that they otherwise lack. As I must have said a thousand times now, they are called terrorists for a reason. They kill as a means to frighten us into giving them something.
Felony Charges for Recording a Plainclothes Officer
Yesterday I wrote about the University of Maryland student beaten by police and falsely charged with assault during a post-game celebration. I concluded with a warning that a law barring citizens from taking photos or videos of law enforcement officers (such as those in force in Great Britain) would have prevented the false charges and beating from coming to light.
I did not know that Maryland was already heading that direction. Video:
Anthony Graber was riding his motorcycle on I-95 in Maryland, speeding and popping wheelies and recording the experience with a helmet cam. An unmarked car cuts him off as he slows for traffic, and a man in a hoodie and jeans jumps out with a gun in his hand. Five seconds after the armed man has exited his vehicle and approached Graber, he identifies himself as a Maryland State Trooper. Graber accepts a speeding ticket and posts video of the experience on YouTube. (HT Armed Liberal)
If that were the end of it – a law enforcement officer recklessly creates a situation that could prompt a firefight by provoking a law-abiding citizen with a concealed carry permit (because the officer’s outward appearance suggested a criminal attack was underway) – I wouldn’t be writing this. But the Maryland State’s Attorneys are now charging Graber with unlawfully recording the incident. Police have seized his computer and he faces felony charges.
Maryland is working hard to justify its status as least-free state in the union. Find your state’s ranking here.
University of Maryland Beating Prompts Investigations
Following the home basketball victory against Duke, University of Maryland students took to the streets to celebrate. Prince George’s County Police, along with mounted officers from the Maryland-National Capital Park Police, responded to disperse an unruly crowd. One student skipped for joy toward police in riot gear, then stopped as he neared two mounted officers. Prince George’s officers rushed the student, beating him with clubs until he fell to the ground, and then continuing to deliver blows as he lay on the pavement. Video of the incident:
The student, John McKenna, was charged with felonies on suspicion of assaulting officers on horseback and their mounts. The charges against McKenna were dropped yesterday without comment, and now the officers responsible for the beating are under scrutiny. One of the three officers who beat McKenna has been suspended, and as soon as the other two are identified they face parallel sanction. Prince George’s prosecutors have opened a criminal investigation as well.
While this story is moving in the right direction, the video contradicting the charges against McKenna and putting police brutality on record made all the difference. Good reason to be wary of laws prohibiting photography or video of police officers.
Dealing with Police

Yesterday Cato hosted the premiere screening of the new film, 10 Rules for Dealing with Police, produced by our friends at Flex Your Rights. The Washington Post has a nice piece about the film and event here. And the Washington Examiner covered the event here.
10 Rules is a gold mine of useful information (both legal and practical) for handling police encounters. Legal books are too often impenetrable and just too time-consuming for laypersons. 10 Rules is a media-savvy vehicle that can alleviate the problem of constitutional illiteracy in America.
In less than 45 minutes, you acquire the information you need to know. Get the dvds and encourage others to show them at high schools, colleges, and other venues.
Catch the trailer below:
Do Bring a Phonecam to a Snowball Fight
By now, you’ve probably heard the story—and seen the video. During the weekend’s Snowpocalypse™ in DC, a gaggle of young urbanites, using Twitter and other social media, announced a big group snowball fight at the corner of 14th and U Streets. For a while, it was all good fun, with the participants periodically stopping the skirmish to help dislodge a motorist for a snowdrift, amid collective cheers. But an off-duty plainclothes cop whose Hummer had been hit by a few snowballs lost his cool—and advanced on the crowd to berate them with his gun drawn. You’d think an angry, out-of-uniform guy brandishing a gun might set off a dangerous stampede in the snow, but true to form, the DC crowd responded with chanting: “You don’t bring a gun to a snowball fight!”
Initially, the Metropolitan Police Department “reviewed the evidence” and concluded that the officer had only been holding a cell phone after all—folks who’d said it was a gun must have just imagined it, what with all that snow. But it turns out there were a whole lot of video cameras and phonecams there, and still shots and recordings began to circulate on the Internet, making it impossible to deny what had happened. By Monday, the chief of police had issued a statement calling the officer’s behavior “totally inappropriate” and announcing that he’d be relegated to desk duty pending further inquiry.
As anyone who follows the excellent work of my colleague Radley Balko will be well aware, things often play out quite differently—with departments circling the wagons, and no serious accountability for far more egregious abuses of authority. But video—increasingly ubiquitous and portable—can make a difference. And it strikes me that, in one sense, it helps remedy other kinds of social inequality. Reviewing that video of the snowball scene, you might point out that the crowd is full of white 20-somethings, many of whom (given the city’s demographics) are almost certainly college-educated professionals, while police misconduct toward less privileged groups is far more likely to be ignored.
What is privilege, though? In cases like these, it consists largely in the ability to be seen and heard—to attract media attention, to articulate your story in a clear and compelling way, to be considered credible by press and the community. All of these, unfortunately, depend enormously on class, status, race, and education. Unless there’s video. And video is democratic these days. You’d have to poke around a bit to find even a bottom-of-the-line cheapo cell phone that didn’t come with at least a still camera, and likely video capture to boot. So while there’s been some attention paid to the potential of this kind of “Little Brother” surveillance to increase accountability—the to lessen disparity in power between citizen and cop—it’s also worth stressing the way it can lessen certain kinds of disparities between citizens.
That said, and just going by memory, it seems like most of the stories I encounter in this vein still involve white, middle-class, college-educated young people. One possibility is that this shows I’m wrong, and that other aspects of privilege still play into their videos circulating while others languish. Another, though, is just that they’re both accustomed to this kind of routine use of technology and sharing of data, and that they take their social power for granted. That is, it occurs more naturally to them that the right response to this kind of misbehavior is to record and circulate it. If it’s mostly the latter, we’re on an interesting precipice, where the main remaining precondition for the leveling effect to kick in is just awareness that the other preconditions are in place. If that’s right, the next few years should be interesting.

