Phony Overtime, Fictional Drug Buys, and Mysterious C.I. Payments Offer a Glimpse of Houston Police Corruption

Gerald Goines (left) and Steven Bryant

On January 22, 2019, Houston narcotics officer Hodgie Armstrong paid a confidential informant who bought drugs as part of a case he was investigating. The informant made the purchase around 6 p.m. that day at 4437 Knoxville Street, and another narcotics officer, Steven Bryant, was there to observe the transaction and Armstrong’s payment to the informant an hour and a half later, serving as the witness required by Houston Police Department policy.

Or so Armstrong and Bryant claimed. According to the local prosecutors who this week accused Armstrong of tampering with a government record, cellphone location data showed Bryant was nowhere near that address at the time of the purported drug purchase or the subsequent payment. At 6 p.m., the complaint against Armstrong says, Bryant was more than 30 miles from 4437 Knoxville Street; between 7:30 and 8 p.m., he was more than 25 miles away.

That incident illustrates the widespread irregularities in the HPD’s Narcotics Division that have been discovered following the January 2019 drug raid that killed a middle-aged couple, Dennis Tuttle and Rhogena Nicholas, in their home on Harding Street. The Harding Street raid, which discovered no evidence of drug dealing, was instigated by veteran narcotics officer Gerald Goines, who obtained a no-knock search warrant based on a fictional heroin purchase by a nonexistent informant. Goines faces state murder charges and federal civil rights charges, both of which are punishable by life in prison, because of that fatal fraud.

By contrast, the charge against Armstrong, Goines’ former partner, carries a maximum penalty of two years in jail. But the false report Armstrong allegedly filed fits a pattern of shady practices and lax supervision in the Narcotics Division exemplified by Goines, who was employed by the HPD for 34 years. That environment apparently made Goines think he could get away with implicating Tuttle and Nicholas by concocting a story that no one would try to verify.

Bryant, the officer who falsely claimed to have witnessed the transaction that Armstrong supposedly arranged six days before the raid that killed Tuttle and Nicholas, also figured in the latter case. Because he backed up Goines’ account of a heroin purchase that never happened, Bryant faces a state charge of tampering with a government record and a federal charge of obstructing justice by falsifying records.

This week Harris County prosecutors filed two more record tampering charges against Bryant, one related to Armstrong’s 2019 report and another related to a confidential informant payment that Goines claimed to have made in April 2018. Although Bryant said he witnessed that payment, prosecutors say cellphone data contradict that account. Furthermore, the informant identified by Goines—the same person he initially claimed had bought heroin from Tuttle—denied making any purchases for him at the location he identified.

Bryant was also charged with stealing about $3,000 in taxpayer money by falsely claiming overtime pay between March 21, 2018, and January 22, 2019. Prosecutors say cellphone data show he did not actually work the hours he claimed.

In addition to the charges that had already been filed against him, Goines now faces a theft charge and three more charges of tampering with a government record related to search warrants. Prosecutors are reviewing drug cases he handled and so far have identified 164 questionable convictions—including a 2004 case involving Houston native George Floyd, whose May 25 death at the hands of Minneapolis police officers triggered nationwide protests.

The charges announced this week also include three Narcotics Division supervisors.

Sgt. Clemente Reyna faces three counts of tampering with a government record based on false statements similar to the ones Bryant is accused of making. In December 2018, for example, Reyna claimed to have witnessed Goines’ payment to a confidential informant for a drug purchase. Prosecutors say cellphone data show that meeting never happened, and the informant identified by Goines—again, the same person who supposedly bought heroin from Tuttlle—denied participating. Reyna, like Bryant, is also charged with theft.

Sgt. Thomas Wood is likewise accused of falsely claiming to have witnessed Goines’ payment to a confidential informant, this one in October 2017. Prosecutors say the informant—once again, the same person Goines named during the investigation of the Harding Street raid—denied making the purchase that Goines described, and cellphone data showed Wood could not have observed it in any case. Wood, like Bryant and Reyna, is also charged with theft.

Lt. Robert Gonzales is charged with misapplication of fiduciary property, a felony punishable by up to two years in jail, for failing to properly verify and authorize expenditures. Prosecutors say he violated department rules by approving thousands of dollars in confidential informant payments after they had already been made and/or without laboratory testing of the drugs used as evidence in those cases.

More charges are expected. “The new charges show a pattern and practice of lying and deceit,” Harris County District Attorney Kim Ogg said on Wednesday. “Goines and others could never have preyed on our community the way they did without the participation of their supervisors; every check and balance in place to stop this type of behavior was circumvented.”

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Colorado Court Elaborates the “Reasonable Exercise” Test Under the Colorado Constitution’s Right to Keep and Bear Arms

Article II, section 13 of the Colorado Constitution reads:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Monday’s decision in Rocky Mountain Gun Owners v. Polis clarified and summarized the “reasonable exercise” test, which the court had announced in the 1994 Robertson case; recall that state supreme courts are free to interpret their state constitutions as more protective than the federal Constitution, as protective, or less protective (though they must also enforce the federal Constitution, when litigants ask them to do so):

[T]he reasonable exercise test [set forth in the 1994 Robertson precedent] demands that government enactments implicating the article II, section 13 right [to keep and bear arms] have a legitimate government end within the police power, such as promoting the public health, safety, or welfare. And as its name suggests, it requires a “reasonable” fit between purpose and means. But in the article II, section 13 context, the ultimate function of the reasonable exercise test is to effectuate the substantive constraints imposed by article II, section 13 on otherwise rational government regulation.

Reflecting that function, the article II, section 13 reasonable exercise test—unlike ordinary rational basis review—demands not just a conceivable legitimate purpose but an actual one. And, importantly, it does not tolerate government enactments that have either a purpose or effect of rendering the right to bear arms in self-defense a nullity. In short, the reasonable exercise test permits restrictions that may burden the right to bear arms but that still leave open ample means to exercise the core of that right; on the other hand, the test forbids restrictions that are so arbitrary or onerous as to amount to a denial of the right.

These features of the reasonable exercise test are apparent from our earliest application of article II, section 13. In Nakamura, the challenged legislation prohibited unnaturalized foreign-born residents from hunting any wild bird or animal except “in defense of persons or property” and, “to that end,” made it “unlawful for any unnaturalized foreign-born resident … to either own or be possessed of a shotgun or rifle of any make, or a pistol or firearm of any kind.” We acknowledged that the state’s identified interests were permissible ones: “[t]he state may preserve its wild game for its citizens” and “prevent the hunting and killing of same by aliens.” But we struck down the law nonetheless, reasoning that it was apparent that it was actually “designed to prevent possession of firearms by aliens, as much, if not more, than the protection of wild game within the state.”

Importantly, we found it “equally clear” that the act had the effect of “wholly disarm[ing] aliens for all purposes.” We held that the state “cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article 2 of the Constitution, to bear arms in defense of home, person, and property.” In other words, “[t]he police power of a state … cannot be exercised in such manner as to work a practical abrogation of its provisions.”

Our later cases just as clearly demonstrate the independent bite of the reasonable exercise test. In Blue, we held that a statute prohibiting individuals with prior felony convictions from possessing weapons was a constitutional exercise of the police power under article II, section 13. “To be sure,” we explained, “the state legislature cannot, in the name of the police power, enact laws which render nugatory our Bill of Rights and other constitutional protections.” But we did not read the felon-in-possession statute “as an attempt to subvert the intent of [article II, section 13].”. And in Ford, an as-applied challenge to the same statute, we expressly stated that “the specific limitations of [article II, section 13] must be superimposed on the statute’s otherwise valid language,” and that a state may “validly restrict or regulate the right to possess arms where the purpose of such possession is not a constitutionally protected one” such as defense of home, person, or property. see also City of Lakewood v. Pillow (Colo. 1972) (striking down ordinance that made it unlawful for a person to possess a firearm in a vehicle or in a place of business for purpose of self-defense).

[I]n Robertson, we again explicitly noted that the right to bear arms in self-defense under article II, section 13 could be regulated but not prohibited. In upholding the Denver ordinance [that banned so-called “assault weapons” -EV], we looked to evidence confirming the city council’s expressed intent to “promote the health, safety, and security of the citizens of Denver” by “curbing crime—particularly homicides.” We further relied on evidence that although the city sought to prohibit the possession and use of approximately 40 firearms, closer to 2,000 remained available for purchase and use in the United States. Given this evidence of the “narrow class of weapons regulated by the ordinance,” we had no trouble concluding that it did not “impose such an onerous restriction on the right to bear arms as to constitute an … illegitimate exercise of the state’s police power.”

In sum, under article II, section 13 of the Colorado Constitution, the government may regulate firearms so long as the enactment is (1) a reasonable exercise of the police power (2) that does not work a nullity of the right to bear arms in defense of home, person, or property. This test differs from rational basis review in that it requires an actual, not just conceivable, legitimate purpose related to health, safety, and welfare, and it establishes that nullifying the right to bear arms in self-defense is neither a legitimate purpose nor tolerable result. In these ways, it ensures that the specifically enumerated “right to bear arms in defense of home, person and property” in article II, section 13 stands as an independent, substantive limitation on otherwise rational government action.

The court went on to apply this to uphold a Colorado statute limiting “large-capacity magazines,” defined as magazines “capable of accepting, or … designed to be readily converted to accept, more than fifteen rounds.” (The court made clear that the magazines had to be designed to be readily converted to do that, and not just capable of being readily converted.) The court didn’t discuss how the statute would be analyzed under the Second Amendment, because plaintiffs had raised only a state constitutional challenge.

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Colorado Court Elaborates the “Reasonable Exercise” Test Under the Colorado Constitution’s Right to Keep and Bear Arms

Article II, section 13 of the Colorado Constitution reads:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Monday’s decision in Rocky Mountain Gun Owners v. Polis clarified and summarized the “reasonable exercise” test, which the court had announced in the 1994 Robertson case; recall that state supreme courts are free to interpret their state constitutions as more protective than the federal Constitution, as protective, or less protective (though they must also enforce the federal Constitution, when litigants ask them to do so):

[T]he reasonable exercise test [set forth in the 1994 Robertson precedent] demands that government enactments implicating the article II, section 13 right [to keep and bear arms] have a legitimate government end within the police power, such as promoting the public health, safety, or welfare. And as its name suggests, it requires a “reasonable” fit between purpose and means. But in the article II, section 13 context, the ultimate function of the reasonable exercise test is to effectuate the substantive constraints imposed by article II, section 13 on otherwise rational government regulation.

Reflecting that function, the article II, section 13 reasonable exercise test—unlike ordinary rational basis review—demands not just a conceivable legitimate purpose but an actual one. And, importantly, it does not tolerate government enactments that have either a purpose or effect of rendering the right to bear arms in self-defense a nullity. In short, the reasonable exercise test permits restrictions that may burden the right to bear arms but that still leave open ample means to exercise the core of that right; on the other hand, the test forbids restrictions that are so arbitrary or onerous as to amount to a denial of the right.

These features of the reasonable exercise test are apparent from our earliest application of article II, section 13. In Nakamura, the challenged legislation prohibited unnaturalized foreign-born residents from hunting any wild bird or animal except “in defense of persons or property” and, “to that end,” made it “unlawful for any unnaturalized foreign-born resident … to either own or be possessed of a shotgun or rifle of any make, or a pistol or firearm of any kind.” We acknowledged that the state’s identified interests were permissible ones: “[t]he state may preserve its wild game for its citizens” and “prevent the hunting and killing of same by aliens.” But we struck down the law nonetheless, reasoning that it was apparent that it was actually “designed to prevent possession of firearms by aliens, as much, if not more, than the protection of wild game within the state.”

Importantly, we found it “equally clear” that the act had the effect of “wholly disarm[ing] aliens for all purposes.” We held that the state “cannot disarm any class of persons or deprive them of the right guaranteed under section 13, article 2 of the Constitution, to bear arms in defense of home, person, and property.” In other words, “[t]he police power of a state … cannot be exercised in such manner as to work a practical abrogation of its provisions.”

Our later cases just as clearly demonstrate the independent bite of the reasonable exercise test. In Blue, we held that a statute prohibiting individuals with prior felony convictions from possessing weapons was a constitutional exercise of the police power under article II, section 13. “To be sure,” we explained, “the state legislature cannot, in the name of the police power, enact laws which render nugatory our Bill of Rights and other constitutional protections.” But we did not read the felon-in-possession statute “as an attempt to subvert the intent of [article II, section 13].”. And in Ford, an as-applied challenge to the same statute, we expressly stated that “the specific limitations of [article II, section 13] must be superimposed on the statute’s otherwise valid language,” and that a state may “validly restrict or regulate the right to possess arms where the purpose of such possession is not a constitutionally protected one” such as defense of home, person, or property. see also City of Lakewood v. Pillow (Colo. 1972) (striking down ordinance that made it unlawful for a person to possess a firearm in a vehicle or in a place of business for purpose of self-defense).

[I]n Robertson, we again explicitly noted that the right to bear arms in self-defense under article II, section 13 could be regulated but not prohibited. In upholding the Denver ordinance [that banned so-called “assault weapons” -EV], we looked to evidence confirming the city council’s expressed intent to “promote the health, safety, and security of the citizens of Denver” by “curbing crime—particularly homicides.” We further relied on evidence that although the city sought to prohibit the possession and use of approximately 40 firearms, closer to 2,000 remained available for purchase and use in the United States. Given this evidence of the “narrow class of weapons regulated by the ordinance,” we had no trouble concluding that it did not “impose such an onerous restriction on the right to bear arms as to constitute an … illegitimate exercise of the state’s police power.”

In sum, under article II, section 13 of the Colorado Constitution, the government may regulate firearms so long as the enactment is (1) a reasonable exercise of the police power (2) that does not work a nullity of the right to bear arms in defense of home, person, or property. This test differs from rational basis review in that it requires an actual, not just conceivable, legitimate purpose related to health, safety, and welfare, and it establishes that nullifying the right to bear arms in self-defense is neither a legitimate purpose nor tolerable result. In these ways, it ensures that the specifically enumerated “right to bear arms in defense of home, person and property” in article II, section 13 stands as an independent, substantive limitation on otherwise rational government action.

The court went on to apply this to uphold a Colorado statute limiting “large-capacity magazines,” defined as magazines “capable of accepting, or … designed to be readily converted to accept, more than fifteen rounds.” (The court made clear that the magazines had to be designed to be readily converted to do that, and not just capable of being readily converted.) The court didn’t discuss how the statute would be analyzed under the Second Amendment, because plaintiffs had raised only a state constitutional challenge.

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Supreme Court of Texas Divides Over July and September Administrations of the Texas Bar

In April, the Supreme Court of Texas created a second date at which the Texas Bar would be administered. Applicants had the choice to sit for the regularly scheduled July session, or sit for an additional session in September. Since then, the COVID-19 situation in Texas has escalated.

The Dean of every Texas Law School (including my own) urged the Supreme Court to modify the schedule. The Deans proposed three options. First, a shortened version of the exam should be administered online. Second, the Court could adopt an “apprenticeship system that would permit licensure upon the completion of a certain number of hours of supervised practice.” Third, the Court could grant a “a one-time diploma privilege option for graduates of our law schools.”

Today, the Supreme Court of Texas issued an emergency order that largely followed the first proposal. But the Court fragmented. The majority of the Court agreed to cancel the July sitting, and maintain the September sitting. A majority of the Court also ordered an “online examination” for October:

The Board should administer an online examination on October 5-6, 2020, that includes: 100 Multistate Bar Examination questions, 1 Multistate Performance Test question, the Procedure and Evidence questions, and 12 Texas essays questions. The October bar examination will be weighted as determined by the Board. The Board reports that it will likely release scores from the October bar examination by December 4.

Applicants can choose to sit for the in-person exam in September, or the online exam in October. There is no penalty for switching. (I am fairly confident most students would choose the latter option).

The order explained:

Although individual Justices may have preferences for additional options, a majority of the Court agrees upon these options.

Beyond that statement, the Court was fragmented. Eight of the nine Justices wrote separately.

Justice Guzman (an alumna of South Texas College of Law Houston) and Justice Lehrmann (who recently recovered from COVID-19) concurred. They raised some concerns about what it would mean to eliminate a licensing requirement, and found that online testing was a safe alternative in the current environment:

JUSTICE GUZMAN and JUSTICE LEHRMANN concur, noting that (1) discussions about altering licensing requirements for admission to the legal profession are important and ongoing through the Court’s work with the ABA Commission on the Future of Legal Education; (2) eliminating a licensing requirement raises consumer-protection concerns, and any systemic reforms should not be undertaken without thorough vetting and input from all stakeholders, especially the public; (3) among the available alternatives to in-person testing, an online bar examination provides a reasonable and safe alternative that aligns more closely with our longstanding licensing requirements; (4) online testing has been successfully employed as an alternative to in-person testing by national testing organizations, like the College Board’s Advanced Placement Program, and public and private schools throughout this State; and (5) the law school community should help fill the void for applicants who do not have access to reliable technology or adequate facilities to take an online test.

Justice Boyd would have given applicants six options:

JUSTICE BOYD concurs in part, but would require the Board to offer and to allow each applicant to choose between (1) the in-person examination currently scheduled for July 2020, (2) the in-person examination currently scheduled for September 2020, (3) the October 2020 online examination described in this Order, (4) an apprenticeship-admission process, and (5) a diploma-privilege-admission process, in addition to (6) the supervised-practice option to delay admission as described in this Order; and would in addition require that each applicant’s State Bar of Texas license, membership records, and online attorney profile clearly indicate whether the applicant gained admission to the Bar through examination, apprenticeship, or a diploma privilege.

I don’t understand why anyone would choose to sit for the exam, when they could be admitted through a diploma privilege. Or are options (5) and (6) combined? The phrasing is unclear. In any event, those who are admitted through the “diploma privilege” route would forever be marked with a Scarlet Letter on their bar license.

Justice Blacklock concurred with the Court’s order. He but would have left the July bar in place:

JUSTICE BLACKLOCK concurs but would also give all those currently scheduled to take the in-person July bar examination the option of doing so as planned.

Some students are studying for the July Bar, and are ready to take it. Being forced to wait for September would delay their results, and prevent them from obtaining employment. Indeed, many students may lack the funds to continue in a state of limbo till November or December, when the results will be released. Justice Blacklock’s proposal may seem callous, but is actually considerate.

Justices Busby and Bland, the two newest members of the Court, would give applicants the option of an apprenticeship program.

JUSTICE BUSBY and JUSTICE BLAND concur but would also allow applicants to select an apprenticeship option providing for licensure upon completion of a period of supervised practice.

Finally, Chief Justice Hecht and Justice Green, the two most senior members of the Court, dissented. They would have adopted the diploma privilege.

CHIEF JUSTICE HECHT and JUSTICE GREEN dissent and would direct the Board of Law Examiners to adopt a diploma privilege in lieu of the bar examination for those registered to take it in July and September 2020.

If my math is right, Justice Devine (also an alum of my law school) did not write separately.

What a fascinating decision.

Update: In April, I offered some caution about holding an online exam.

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Supreme Court of Texas Divides Over July and September Administrations of the Texas Bar

In April, the Supreme Court of Texas created a second date at which the Texas Bar would be administered. Applicants had the choice to sit for the regularly scheduled July session, or sit for an additional session in September. Since then, the COVID-19 situation in Texas has escalated.

The Dean of every Texas Law School (including my own) urged the Supreme Court to modify the schedule. The Deans proposed three options. First, a shortened version of the exam should be administered online. Second, the Court could adopt an “apprenticeship system that would permit licensure upon the completion of a certain number of hours of supervised practice.” Third, the Court could grant a “a one-time diploma privilege option for graduates of our law schools.”

Today, the Supreme Court of Texas issued an emergency order that largely followed the first proposal. But the Court fragmented. The majority of the Court agreed to cancel the July sitting, and maintain the September sitting. A majority of the Court also ordered an “online examination” for October:

The Board should administer an online examination on October 5-6, 2020, that includes: 100 Multistate Bar Examination questions, 1 Multistate Performance Test question, the Procedure and Evidence questions, and 12 Texas essays questions. The October bar examination will be weighted as determined by the Board. The Board reports that it will likely release scores from the October bar examination by December 4.

Applicants can choose to sit for the in-person exam in September, or the online exam in October. There is no penalty for switching. (I am fairly confident most students would choose the latter option).

The order explained:

Although individual Justices may have preferences for additional options, a majority of the Court agrees upon these options.

Beyond that statement, the Court was fragmented. Eight of the nine Justices wrote separately.

Justice Guzman (an alumna of South Texas College of Law Houston) and Justice Lehrmann (who recently recovered from COVID-19) concurred. They raised some concerns about what it would mean to eliminate a licensing requirement, and found that online testing was a safe alternative in the current environment:

JUSTICE GUZMAN and JUSTICE LEHRMANN concur, noting that (1) discussions about altering licensing requirements for admission to the legal profession are important and ongoing through the Court’s work with the ABA Commission on the Future of Legal Education; (2) eliminating a licensing requirement raises consumer-protection concerns, and any systemic reforms should not be undertaken without thorough vetting and input from all stakeholders, especially the public; (3) among the available alternatives to in-person testing, an online bar examination provides a reasonable and safe alternative that aligns more closely with our longstanding licensing requirements; (4) online testing has been successfully employed as an alternative to in-person testing by national testing organizations, like the College Board’s Advanced Placement Program, and public and private schools throughout this State; and (5) the law school community should help fill the void for applicants who do not have access to reliable technology or adequate facilities to take an online test.

Justice Boyd would have given applicants six options:

JUSTICE BOYD concurs in part, but would require the Board to offer and to allow each applicant to choose between (1) the in-person examination currently scheduled for July 2020, (2) the in-person examination currently scheduled for September 2020, (3) the October 2020 online examination described in this Order, (4) an apprenticeship-admission process, and (5) a diploma-privilege-admission process, in addition to (6) the supervised-practice option to delay admission as described in this Order; and would in addition require that each applicant’s State Bar of Texas license, membership records, and online attorney profile clearly indicate whether the applicant gained admission to the Bar through examination, apprenticeship, or a diploma privilege.

I don’t understand why anyone would choose to sit for the exam, when they could be admitted through a diploma privilege. Or are options (5) and (6) combined? The phrasing is unclear. In any event, those who are admitted through the “diploma privilege” route would forever be marked with a Scarlet Letter on their bar license.

Justice Blacklock concurred with the Court’s order. He but would have left the July bar in place:

JUSTICE BLACKLOCK concurs but would also give all those currently scheduled to take the in-person July bar examination the option of doing so as planned.

Some students are studying for the July Bar, and are ready to take it. Being forced to wait for September would delay their results, and prevent them from obtaining employment. Indeed, many students may lack the funds to continue in a state of limbo till November or December, when the results will be released. Justice Blacklock’s proposal may seem callous, but is actually considerate.

Justices Busby and Bland, the two newest members of the Court, would give applicants the option of an apprenticeship program.

JUSTICE BUSBY and JUSTICE BLAND concur but would also allow applicants to select an apprenticeship option providing for licensure upon completion of a period of supervised practice.

Finally, Chief Justice Hecht and Justice Green, the two most senior members of the Court, dissented. They would have adopted the diploma privilege.

CHIEF JUSTICE HECHT and JUSTICE GREEN dissent and would direct the Board of Law Examiners to adopt a diploma privilege in lieu of the bar examination for those registered to take it in July and September 2020.

If my math is right, Justice Devine (also an alum of my law school) did not write separately.

What a fascinating decision.

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In 2020, Words Are ‘Violence,’ Arson Is Not

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There’s a righteous anger driving protests against police brutality in the U.S. But an effort on the left to radically redefine “violence” threatens to alienate people who are attached to a more conventional understanding of that word and trivializes the very real reasons why they’re protesting. A demonstration that hinges on an anti-violence orthodoxy needs to employ a coherent definition of their central tenet, should they not want to undermine their own movement.

The leftist case for redefining “violence” relies on two main arguments: damaging a person is morally more serious than damaging an object, and psychologically damaging a person is worse than physically damaging an object.

“One reason it’s important to maintain a clear concept of what violence is and isn’t, is because true violence is such a deeply terrible human experience,” writes Nathan J. Robinson at the socialist magazine Current Affairs. “Actual violence leaves people with brain damage, nightmares, disability, and trauma. The destruction of human bodies is a moral horror that simply cannot exist in the same category as the breaking of objects. Using the word ‘violence’ to describe the smashing of a window (which is, it should not need saying, incapable of feeling pain) diminishes the term.”

Journalists, pundits, and activists alike have made a case similar to Robinson’s in dismissing criticism of rioters and looters who have damaged buildings and businesses around the country during protests against police brutality. “Violence is when an agent of the state kneels on a man’s neck until all of the life is leached out of his body,” Nikole Hannah-Jones, the driving force behind The New York Times’ 1619 Project, told CBS News last month. “Destroying property, which can be replaced, is not violence. To use the same language to describe those two things is not moral.”

Hannah-Jones, Robinson, and many other supporters of the anti-police violence protests want to keep the media and America focused on state violence against black people, which is pervasive and chronic. Human lives are more intrinsically valuable than inanimate objects, but it does not follow that the destruction of property is insignificant, or that Americans who are concerned about that destruction are immoral or racist. Property is foundational to prosperity. Historical and institutionally racist barriers to obtaining property—like redlining—are a major reason why black wealth in America is a fraction of white wealth. While there is no shortage of concern-trolling about the destruction of black businesses during these protests, the fact is that black-owned businesses are less able to recover from property destruction.

You don’t need to see a black life as equal in value to a black-owned business, or to a building or a car, to be concerned about damage to all those things and resistant to people who say should only be concerned about one of them. Litigating which kinds of damage count as “violence” might scratch some kind of polemical itch, but it is not a useful way to build the kind of broad political consensus necessary to end, or at least, dramatically curb state violence against black people.

At the same time, some on the left are attempting to expand the definition of violence to cover acts and behaviors that very few people have historically considered to be violent. “Silence is violence” is a good example. “Racism isn’t a black problem. It’s a white problem, and their silence is violence,” Cherry Steinwender, executive director of the Center for Healing Racism, told the Houston Chronicle in a June 5 article titled, “‘Silence is violence:’ Why speaking up against racism speaks volumes.”

Yes, we should speak up against injustices when we see them. But to say that declining to participate in the debate over policing and race is equivalent to actual physical harm, while also insisting that it is immoral to classify arson as violence, is incoherent.

But the redefining effort does not end there:

  • Julia Beck, a lesbian activist from Baltimore and former co-chair of the local LGBTQ Commission, was criticized and expelled from that group for resisting the city’s effort to replace “sex” with “gender identity” in certain policies. The Baltimore Transgender Alliance accused Beck of committing “violence against the transgender community.”
  • A protest last Wednesday in Richmond, Virginia, saw people opposed to lifting COVID-19 eviction moratoriums on the grounds that eviction is literal violence. (That idea isn’t especially new.)
  • deandre miles-hercules, a PhD linguistics student, told Vox in an interview that white people asking black people how to prefer to black people as a group is, well: “People tune in to this, ‘What is the word? Do I call you African American? Do I call you Black? What is the word that people are preferring these days? I know I can’t call you Negro anymore! So just tell me the word so I can use it and we can go on from there.’ But that lacks in nuance. And that lack of nuance is a violence.”
  • To bring things full circle, consider the recent kerfuffle at The New York Times over Sen. Tom Cotton’s (R–Ark.) op-ed calling for military support in quelling the violent demonstrations that peppered some of the protests across the country. “Running this puts Black @nytimes staff in danger,” became a popular refrain on Twitter, repeated by a range of staffers at The Times. 

To review: not speaking is violence; speaking charitably but clumsily is violence; having an unpopular opinion or providing a platform for one is violence; insisting that both parties honor legally binding contracts is violence; burning buildings, smashing windows, and destroying businesses are not violence.

These attempts at redefinition are not just confusing, they are socially corrosive. In a heterogeneous society made up of an abundance of ethnicities, races, religions, sexual orientations, and perspectives, we need to actively work toward broad consensus not just to function, but to rally majority support for protecting minorities. This process has been and continues to be painfully slow for many members of the American project. In the case of George Floyd, Breonna Taylor, and countless others, the consensus took too long. They died waiting for their fellow Americans—many of them white—to reach the conclusion that our police are too powerful, too violent, and too unaccountable.

But there also seems to be an emerging consensus that what happened to Floyd and Taylor should not happen ever again. We need to build that consensus until it is reflected in our laws. Does the effort to redefine violence beyond recognition get us closer to that goal, or slow us down?

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Body Camera Footage Shows Florida Cops Laughing About Using Rubber Bullets on Anti-Police Brutality Protesters

Fort Lauderdale Police

A Florida police department is investigating officers who joked on camera about the protesters they shot with rubber bullets.

Body-worn camera footage obtained by the Miami Herald shows officers with the Fort Lauderdale Police Department (FLPD) shooting rubber bullets towards protesters during an anti-brutality protest on May 31 and then making jokes.

One officer is heard shouting, “Beat it, little fucker,” to a protester who appears to be hit after picking up a tear gas canister and throwing it back in the direction of police. At one point, another officer asks if the body-worn camera is on and then laughs that he “plugged his ass three fucking times.”

In a statement released this week, FLPD Chief Rick Maglione says that a longer video “clearly demonstrates our officers were under attack by a group of people who chose to use violence instead of peace to antagonize the situation.” Maglione also says the officers were “dealing with the chaos of a developing situation.”

FLPD has been criticized for its conduct during the May 31 protest. The department said it was fending off violent agitators in a city garage, but video and photos from the protest do not appear to back this version of events. The protesters appear to have remained peaceful until an officer was seen shoving a kneeling protester. Another police officer quickly stepped in to reprimand him and protesters began to throw water bottles in his direction. The situation escalated when more officers arrived on the scene. One protester was hit with a rubber bullet and suffered a fractured eye socket.

Like the protest in Fort Lauderdale, scenes of aggressive policing tactics at recent anti-brutality protests have renewed the debate around the use of rubber bullets.

The moniker itself is a bit misleading. These large, palm-sized munitions can contain metal cores and are covered by rubber, plastic, and other materials. And while “rubber bullet” suggests a softer impact, which is certainly the case when compared to a live round, this kinetic impact projectile can still cause penetrative injury.

When freelance photographer Linda Tirado described her experience of being shot in the eye with what she believed to be a rubber bullet at a Minneapolis protest, she said, “I was aiming my next shot, put my camera down for a second, and then my face exploded.” Protesters carried Tirado away from the scene. Following surgery, a doctor informed her that her vision was not likely to recover.

An American Civil Liberties Union fact sheet breaks down the risks by body part. This includes potential blindness or brain injury if shot in the eye, bleeding if shot in the abdominal region, and lacerations, though the rounds aren’t marketed as intended to break the skin. While described by law enforcement as “non-lethal” or “less than lethal,”  documentation on social media proves these rounds can cause gruesome injuries. 

In an article debunking myths about rubber bullets, Inverse found that about 15 percent of injuries caused by the projectile resulted in permanent damage, especially when a person is struck in the head or neck.

Manufacturers advise that these projectiles should only be used for the lower extremities. Some departments, like the Minneapolis Police Department, mandate in their policies that “large muscle groups in the lower extremities including the buttocks, thigh, knees” should be the intended target for 40mm less-lethal rounds. The MPD even notes that targeting other areas such as the “head, neck, spinal cord, groin and kidneys” can cause “injury that can lead to a permanent physical or mental incapacity or possible death.”

The FLPD body camera footage and the documented damage from these projectiles around the U.S. demonstrate that law enforcement agencies need to find safer alternatives for crowd control.

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Post-Pandemic Americans May Be Done With Taking Orders

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On June 19, the mayor of Cottonwood, Arizona, unilaterally ordered city residents to wear face masks in public places. A week later, my family went downtown to grab some lunch at a favorite barbecue joint. The proclamation might as well have never been issued; we were among the very few people wearing masks on the street or in the stores.

The residents of Cottonwood aren’t alone; compliance with orders from on-high is losing popularity across the country. One of the COVID-19 pandemic’s legacies may well be an overwhelming public fatigue with being told what to do.

Truthfully, Cottonwood Mayor Tim Elinski couldn’t have handled the mask order any more poorly. His order came after he lost a vote on the issue—which he admitted after the fact that he had held only because he thought he would win. The end result, then, was predetermined; he just didn’t get the cover he’d anticipated from the city council. That annoyed people as much as the mask mandate itself.

It didn’t have to be that way. A few days later I watched a woman stop in front of a sign posted in front of the local Safeway. She reached into her purse, pulled out a mask, and then entered the supermarket with her face covered as requested. As I watched, a steady stream of people mostly did the same. Asking nicely proved more effective than government commands at getting people to don masks.

But governments aren’t about asking; ordering is what they do. And they’re getting a lot of pushback.

Even at the beginning of the pandemic, when fear and uncertainty were at their height, many Americans worried that they would lose more to economic stagnation and social isolation than they gained from society-wide lockdowns. Closing businesses and banning gatherings might slow the spread of disease, but it also chokes off commerce, kills jobs, and sends people to the brink of despair.

“We’re trying our best to stay afloat,” the owner of a hair salon in Placer County, California, said at the end of April as she prepared to defy the state lockdown. “We had to open the shop because our families are depending on us.”

That salon owner was joined by many others across the country who defied rules in order to put food on the table. And they’re often willing to forcefully tell authorities where to get off.

“Frustrated small-business owners have turned to heavily armed, militia-style protesters … to serve as reopening security squads” to deter government officials from enforcing closure orders, The New York Times reported in mid-May. Disobedience morphed into open rebellion as people chafed against draconian commands and the resulting dwindling bank accounts.

It isn’t only a matter of dollars and cents, either. In New York City, parents sick of confinement at home and unable to legally let their children blow off steam in playgrounds “cut the locks and chains on gates that had kept them closed for months,” according to the New York Daily News.

Likewise, Santa Cruz County, California, reopened its beaches last week because people ignored lockdown orders. “It’s become impossible for law enforcement to continue to enforce the closures,” admitted Santa Cruz’s health officer, Gail Newel. “People are not willing to be governed anymore in that regard.”

Americans’ unwillingness to be governed any further by officials who responded to the pandemic with a series of botched policy initiatives, personal exemptions, and seemingly arbitrary commands to the public is understandable. Why would you take orders from people who seem to have no idea what they’re doing and clearly don’t intend to follow the rules themselves?

Besides, it’s not at all clear that the myriad dictates from authorities helped slow the spread of COVID-19 as promised. That’s not to say they were entirely ineffective—experts debate the impact of the orders. But “months of mixed messages have left many exhausted and wondering how much of what they did was worth it,” as a report in The New York Times concedes.

That uncertainty comes at a high price. Economic activity in the U.S. is expected to drop by about 8 percent this year, with a decade to come of reduced prosperity. Research suggests that government efforts to offset this economic carnage did little to preserve employment or to help the businesses most affected by people’s reactions to the pandemic —both government-mandated and voluntary.

Yes, voluntary! As exemplified by the mask-wearers I saw entering Safeway, people are capable of responding on their own to requests and to personal health concerns. Analysis of cellphone data shows that Americans not only resumed moving around well before lockdown orders were lifted, they had also curtailed their movements before being told to do so. Once again, asking nicely may work better than issuing orders.

Of course, voluntary curtailment of economic and social activity has costs, too. But costs that result from individual decisions are unlikely to spark the resentment and rebellion that we get in response to mandates.

Yet more mandates are what we’re getting. With cases of COVID-19 up (though death rates are down), many states are tightening the screws again on economic and social activity. But with growing numbers of people fed up with the frustrations and costs of lockdowns, and pretty much over being told what to do, it’s unlikely that we’ll see even the incomplete compliance that the pre-fatigue early days of the pandemic brought us.

That’s unfortunate, because some measures to combat the pandemic might well be good ideas despite the best efforts of officials to provoke us into defiance with ill-considered commands. Wearing masks, improving hygiene, emphasizing curb-side and delivery services, and increasing social-distancing could help to slow the spread of COVID-19 so that medical facilities aren’t overwhelmed, at least until vaccines and better treatments become available. The unmasked shoppers and diners in downtown Cottonwood effectively demonstrated the mayor’s impotence, but they may not have done themselves any favors.

But I suspect that the days of widespread compliance with do-it-or-else mandates meant to curb COVID-19 are over. Government officials will have to go against their instincts and learn that, instead of commanding, they have to be satisfied with the results of polite requests.

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In 2020, Words Are ‘Violence,’ Arson Is Not

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There’s a righteous anger driving protests against police brutality in the U.S. But an effort on the left to radically redefine “violence” threatens to alienate people who are attached to a more conventional understanding of that word and trivializes the very real reasons why they’re protesting. A demonstration that hinges on an anti-violence orthodoxy needs to employ a coherent definition of their central tenet, should they not want to undermine their own movement.

The leftist case for redefining “violence” relies on two main arguments: damaging a person is morally more serious than damaging an object, and psychologically damaging a person is worse than physically damaging an object.

“One reason it’s important to maintain a clear concept of what violence is and isn’t, is because true violence is such a deeply terrible human experience,” writes Nathan J. Robinson at the socialist magazine Current Affairs. “Actual violence leaves people with brain damage, nightmares, disability, and trauma. The destruction of human bodies is a moral horror that simply cannot exist in the same category as the breaking of objects. Using the word ‘violence’ to describe the smashing of a window (which is, it should not need saying, incapable of feeling pain) diminishes the term.”

Journalists, pundits, and activists alike have made a case similar to Robinson’s in dismissing criticism of rioters and looters who have damaged buildings and businesses around the country during protests against police brutality. “Violence is when an agent of the state kneels on a man’s neck until all of the life is leached out of his body,” Nikole Hannah-Jones, the driving force behind The New York Times’ 1619 Project, told CBS News last month. “Destroying property, which can be replaced, is not violence. To use the same language to describe those two things is not moral.”

Hannah-Jones, Robinson, and many other supporters of the anti-police violence protests want to keep the media and America focused on state violence against black people, which is pervasive and chronic. Human lives are more intrinsically valuable than inanimate objects, but it does not follow that the destruction of property is insignificant, or that Americans who are concerned about that destruction are immoral or racist. Property is foundational to prosperity. Historical and institutionally racist barriers to obtaining property—like redlining—are a major reason why black wealth in America is a fraction of white wealth. While there is no shortage of concern-trolling about the destruction of black businesses during these protests, the fact is that black-owned businesses are less able to recover from property destruction.

You don’t need to see a black life as equal in value to a black-owned business, or to a building or a car, to be concerned about damage to all those things and resistant to people who say should only be concerned about one of them. Litigating which kinds of damage count as “violence” might scratch some kind of polemical itch, but it is not a useful way to build the kind of broad political consensus necessary to end, or at least, dramatically curb state violence against black people.

At the same time, some on the left are attempting to expand the definition of violence to cover acts and behaviors that very few people have historically considered to be violent. “Silence is violence” is a good example. “Racism isn’t a black problem. It’s a white problem, and their silence is violence,” Cherry Steinwender, executive director of the Center for Healing Racism, told the Houston Chronicle in a June 5 article titled, “‘Silence is violence:’ Why speaking up against racism speaks volumes.”

Yes, we should speak up against injustices when we see them. But to say that declining to participate in the debate over policing and race is equivalent to actual physical harm, while also insisting that it is immoral to classify arson as violence, is incoherent.

But the redefining effort does not end there:

  • Julia Beck, a lesbian activist from Baltimore and former co-chair of the local LGBTQ Commission, was criticized and expelled from that group for resisting the city’s effort to replace “sex” with “gender identity” in certain policies. The Baltimore Transgender Alliance accused Beck of committing “violence against the transgender community.”
  • A protest last Wednesday in Richmond, Virginia, saw people opposed to lifting COVID-19 eviction moratoriums on the grounds that eviction is literal violence. (That idea isn’t especially new.)
  • deandre miles-hercules, a PhD linguistics student, told Vox in an interview that white people asking black people how to prefer to black people as a group is, well: “People tune in to this, ‘What is the word? Do I call you African American? Do I call you Black? What is the word that people are preferring these days? I know I can’t call you Negro anymore! So just tell me the word so I can use it and we can go on from there.’ But that lacks in nuance. And that lack of nuance is a violence.”
  • To bring things full circle, consider the recent kerfuffle at The New York Times over Sen. Tom Cotton’s (R–Ark.) op-ed calling for military support in quelling the violent demonstrations that peppered some of the protests across the country. “Running this puts Black @nytimes staff in danger,” became a popular refrain on Twitter, repeated by a range of staffers at The Times. 

To review: not speaking is violence; speaking charitably but clumsily is violence; having an unpopular opinion or providing a platform for one is violence; insisting that both parties honor legally binding contracts is violence; burning buildings, smashing windows, and destroying businesses are not violence.

These attempts at redefinition are not just confusing, they are socially corrosive. In a heterogeneous society made up of an abundance of ethnicities, races, religions, sexual orientations, and perspectives, we need to actively work toward broad consensus not just to function, but to rally majority support for protecting minorities. This process has been and continues to be painfully slow for many members of the American project. In the case of George Floyd, Breonna Taylor, and countless others, the consensus took too long. They died waiting for their fellow Americans—many of them white—to reach the conclusion that our police are too powerful, too violent, and too unaccountable.

But there also seems to be an emerging consensus that what happened to Floyd and Taylor should not happen ever again. We need to build that consensus until it is reflected in our laws. Does the effort to redefine violence beyond recognition get us closer to that goal, or slow us down?

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Body Camera Footage Shows Florida Cops Laughing About Using Rubber Bullets on Anti-Police Brutality Protesters

Fort Lauderdale Police

A Florida police department is investigating officers who joked on camera about the protesters they shot with rubber bullets.

Body-worn camera footage obtained by the Miami Herald shows officers with the Fort Lauderdale Police Department (FLPD) shooting rubber bullets towards protesters during an anti-brutality protest on May 31 and then making jokes.

One officer is heard shouting, “Beat it, little fucker,” to a protester who appears to be hit after picking up a tear gas canister and throwing it back in the direction of police. At one point, another officer asks if the body-worn camera is on and then laughs that he “plugged his ass three fucking times.”

In a statement released this week, FLPD Chief Rick Maglione says that a longer video “clearly demonstrates our officers were under attack by a group of people who chose to use violence instead of peace to antagonize the situation.” Maglione also says the officers were “dealing with the chaos of a developing situation.”

FLPD has been criticized for its conduct during the May 31 protest. The department said it was fending off violent agitators in a city garage, but video and photos from the protest do not appear to back this version of events. The protesters appear to have remained peaceful until an officer was seen shoving a kneeling protester. Another police officer quickly stepped in to reprimand him and protesters began to throw water bottles in his direction. The situation escalated when more officers arrived on the scene. One protester was hit with a rubber bullet and suffered a fractured eye socket.

Like the protest in Fort Lauderdale, scenes of aggressive policing tactics at recent anti-brutality protests have renewed the debate around the use of rubber bullets.

The moniker itself is a bit misleading. These large, palm-sized munitions can contain metal cores and are covered by rubber, plastic, and other materials. And while “rubber bullet” suggests a softer impact, which is certainly the case when compared to a live round, this kinetic impact projectile can still cause penetrative injury.

When freelance photographer Linda Tirado described her experience of being shot in the eye with what she believed to be a rubber bullet at a Minneapolis protest, she said, “I was aiming my next shot, put my camera down for a second, and then my face exploded.” Protesters carried Tirado away from the scene. Following surgery, a doctor informed her that her vision was not likely to recover.

An American Civil Liberties Union fact sheet breaks down the risks by body part. This includes potential blindness or brain injury if shot in the eye, bleeding if shot in the abdominal region, and lacerations, though the rounds aren’t marketed as intended to break the skin. While described by law enforcement as “non-lethal” or “less than lethal,”  documentation on social media proves these rounds can cause gruesome injuries. 

In an article debunking myths about rubber bullets, Inverse found that about 15 percent of injuries caused by the projectile resulted in permanent damage, especially when a person is struck in the head or neck.

Manufacturers advise that these projectiles should only be used for the lower extremities. Some departments, like the Minneapolis Police Department, mandate in their policies that “large muscle groups in the lower extremities including the buttocks, thigh, knees” should be the intended target for 40mm less-lethal rounds. The MPD even notes that targeting other areas such as the “head, neck, spinal cord, groin and kidneys” can cause “injury that can lead to a permanent physical or mental incapacity or possible death.”

The FLPD body camera footage and the documented damage from these projectiles around the U.S. demonstrate that law enforcement agencies need to find safer alternatives for crowd control.

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