Tag: in-the-news

After September 11, 2001, huge swaths of the federal government reorganized around the idea of fighting terrorism. The Transportation Security Administration (TSA) became a maximally intrusive and minimally effective part of every traveler’s life. The FBI, which had failed to connect the dots on the 9/11 plot, received billions more in funding. The Department of Homeland Security, a shiny new Cabinet-level bureaucracy with an Orwellian name, grew at a rate that would make Clifford the Big Red Dog turn green with envy. The PATRIOT Act whisked away Americans’ privacy, and the Authorization for Use of Military Force plunged the nation into a new type of endless war. The security state that had been unable to prevent a terror attack on American soil was showered with gross sums of money and far-reaching new powers as a result.

But at least, the hawks thought, we’d be ready for the next crisis.

The next crisis was the financial meltdown of 2008. As many of the country’s major financial institutions spiraled downward, the concept of “too big to fail” took on new meaning. The outgoing Republican president, George W. Bush, declared that he’d “abandoned free market principles to save the free market system.” In the wake of the crash came complex new regulations on banks and financial markets, including Dodd-Frank at home and Basel III abroad. These constrained the global banking institutions while granting financial regulators the authority to inspect balance sheets and to demand changes in corporate strategy. All the while, governments seemed to signal that if trouble came knocking again, the feds would likely once again socialize the banks’ risk.

But at least, the regulators thought, we’d be ready for the next crisis.

Enter the coronavirus. Once again, the existing government players have not covered themselves in glory. As Jacob Sullum documents in “When Should Force Be Used To Protect Public Health?” (page 18), the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and the surgeon general issued confusing and misleading guidance and imposed unhelpful constraints on the manufacture and dissemination of masks and tests, overstepping their boundaries and making things worse in the process. The White House contradicted itself constantly in the crucial early days—and in the crucial later ones as well. State governors and their health agencies swayed in the winds of public and expert opinion.

We do not yet know whether the measures taken by public officials were effective in controlling the spread of the virus. Unfortunately, we can be fairly confident about what the next steps in this dance will be. Sometime in 2021, the American people will be presented with a reorganized and newly empowered federal public health bureaucracy. It will strike many, initially at least, as a sensible response to the pandemic. As time passes, it will grow in size and scope. Though theoretically focused on disease control, it will wield enormous power over the economy, with the capacity to shutter entire regions or industries in the name of saving lives. It will constantly be looking for ways to justify itself, reaching toward everything from climate change to gun violence to the food system.

It won’t be the only bureaucracy growing. As Veronique de Rugy explains in “Disaster Relief for Small Businesses Is a Disaster All Its Own” (page 43), the federal government has already responded to the coronavirus pandemic by heaping cash and responsibility on one of its more strikingly inept agencies, the Small Business Administration.

Public schools, which have struggled mightily with the rapid switch to online learning, will almost certainly be the recipients of large grants. They will spend the money fighting the last war, preparing for rapid-onset distance learning in ways that may never be directly relevant again. A new army of online learning specialists will spring up and be stationed at every school. They will mostly fail to squeeze new methods into old models, they will join the teachers union, and they will never go away.

A new surveillance apparatus will be established, perhaps under the auspices of the public health behemoth, perhaps in cooperation with existing law enforcement. It will take our temperatures in public spaces and require private institutions to do the same in their own domains. Our phones will become little pocket narcs, telling government snoops whom we have bumped into lately. This, too, will require more funding, more authority, and more powerful tools.

In each of the previous crises, the government acted both too quickly and too slowly. The PATRIOT Act was signed into law a little over a month after 9/11, and the TSA was created shortly after that. But actual airport security procedures took years to implement, and only after subsequent attack attempts did additional rules accumulate like sediment. In 2008, bailouts hit banks’ coffers with lightning speed but the rules and compliance costs rolled in slowly and unpredictably, especially since Congress left so much of the actual rulemaking to unaccountable regulators. In both cases, tens of thousands of new employees were hired as agents of an ever-more-intrusive state, creating a massive new class of people who are beholden to and perhaps co-opted by the federal government. Expect the same to happen again.

Lurking in the background of each of these new buildups is the question of who will pay. Between each crisis, the United States experienced long periods of prosperity and growth. Our political leaders have chosen not to save for a rainy day and—except in very rare cases—not to roll back interventions that turned out to be unnecessary, expensive, or counterproductive. So we walked into the coronavirus crisis with fewer options, more limited resources, and more distractions.

And we’re not ready for the next crisis.

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Maine restaurateur Joe Christopher bought $12,000 in food and brought back his staff in anticipation of the state allowing dine-in customers on June 1. But just four days before restaurants were rescheduled to open, Gov. Janet Mills extended the ban on inside dining indefinitely in three counties, containing over 40 percent of the state’s population, catching Christopher and other restaurant owners off guard.

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The killing of African-American George Floyd by a Minneapolis police officer and the resulting protests have called new attention to a longstanding issue with American law enforcement: widespread racial profiling. In this post, I would like to consider why racial profiling is a serious problem, why it’s so hard to end, and what nonetheless can  be done to reduce it.

As I use the term, racial profiling denotes a situation where law enforcement officers treat members of one racial group worse than they would be treated in the same situation if they belonged to another group. If a police officer stops, searches, or arrests a black person when a white person in the same situation would be left alone, that’s a case of racial profiling. By no means all cases of abusive police behavior qualify as racial profiling. As Jason Brennan and Chris Surprenant describe in a recent book, American police too often use excessive force in cases involving white officers and white suspects, where race, presumably, is not an issue. Even abuses involving minority civilians are not always a result of racial profiling. The wrongdoing officers may sometimes be “equal-opportunity” practitioners of police brutality, who would have done what they did regardless of the suspects’ race.

Ending racial profiling would not end all abusive law enforcement behavior. It wouldn’t even end all abuses where minorities are victims. But racial profiling is a serious problem nonetheless. It causes real suffering, it’s unconstitutional, and it poisons relations between law enforcement and minority communities.

I. Why Racial Profiling Matters

Though racial profiling is far from the only flaw in American law enforcement, it is nonetheless widespread. A 2019 Pew Research Center poll found that 59% of black men and 31% of black women say they have been unfairly stopped by police because of their race. Their perceptions are backed by numerous studies – including many that control for other variables, including underlying crime rates—showing that police often treat blacks and Hispanics more harshly than similarly situated whites.

Almost every black male I know can recount experiences of racial profiling.  I readily admit they are not a representative sample. But as a law professor, my African-American acquaintances are disproportionately affluent and highly educated. Working-class blacks likely experience racial profiling even more often.

If you don’t trust studies or survey data, consider the testimony of conservative Republican African-American Senator Tim Scott, who has movingly recounted multiple incidents in which he was racially profiled by Capitol police. Even being a powerful GOP politician is not enough for a black man to avoid profiling. Or consider the the experiences of right-of-center Notre Dame Law School Dean Marcus Cole. Scott and Cole are not easily dismissed as politically correct “snowflakes” who constantly see racism where none exists.

Most cases of racial profiling do not result in anyone being killed, injured, or even arrested. The police unfairly stop, question, or otherwise harass a minority-group member. But they then let him go, perhaps with a traffic ticket (if it was a vehicule stop). Conservatives are not wrong to point out that the average black person is far more likely to be killed or injured by an ordinary criminal than by a police officer.

But that doesn’t mean that racial profiling is trivial or insignificant. Even if one isolated incident might qualify as such, it is painful and degrading if the people who are supposed to “protect and serve” you routinely treat you as a second-class citizen merely based on the color of your skin. And it gets worse if it isn’t just about you, because your friends and family get the same treatment.

It is also painful and scary to know that, while racial profiling usually doesn’t lead to injury or death, there is always a chance that such an incident could horrifically escalate. When a black man encounters a  cop, he often has to worry that the officer might kill or injure him even if he did nothing wrong. Such fear is far less common for whites.

Widespread racial profiling also  poisons relationships between police and minority communities. If you (with good reason) believe that cops routinely discriminate against your racial or ethnic group, you are less likely to cooperate with them, report crimes or otherwise presume they are acting in good faith. That creates obvious difficulties for both police and civilians.

Curbing racial profiling should be a priority for anyone—including many conservatives and libertarians—who believe government should be color-blind. I have long argued that anyone who holds such views—as I do myself—cannot  tolerate ad hoc exceptions for law enforcement.

If you truly believe that it is wrong for government to discriminate on the basis of race, you cannot ignore that principle when it comes to those government officials who carry badges and guns and have the power to kill and injure people. Otherwise, your position is blatantly inconsistent. Cynics will understandably suspect that your supposed opposition to discrimination only arise when whites are the victims, as in the case of affirmative action preferences in education.

Finally, you have special reason to condemn racial profiling if you are a constitutional originalist (as many conservatives are). Today, most cases under the Equal Protection Clause of the Fourteenth Amendment involve challenges to the constitutionality laws and regulations that discriminate on the basis of race, or are motivated by such discrimination. But the original meaning of the Clause was centrally focused on unequal enforcement of laws by state and local governments, including the police. That happens when authorities enforce laws against some racial or ethnic groups differently than others, treating some more harshly and others more leniently based on their group identity.

Racial profiling is a paradigmatic example of exactly that problem. Where it occurs, victims are denied equal protection because the very officials who are supposed to provide that protection instead treat them more harshly than members of other groups.

II. Why Racial Profiling is Hard to Combat

While racial profiling is a serious problem, it’s also a very difficult one to curtail. One reason why is that it’s often hard to detect. With many types of illegal discrimination, the perpetrators leave a record of their decision-making process that can then be assessed by investigators or used as the basis for a lawsuit. In many, perhaps most, racial profiling cases, the relevant decision was made on the fly by a single person, or a small group. There is no  record to refer to, and the officer can easily offer a benign explanation for his or her actions. Indeed, sometimes the officer himself won’t know for sure whether he would have done the same thing if the race of the civilian involved was different. That makes racial profiling hard to address by using many of the traditional tools of anti-discriminitaion law, including lawsuits targeting specific discriminatory actions.

An additional problem is that racial profiling isn’t always the result of bigotry, defined as hatred of a given minority group. Some officers really are awful bigots. But many, probably most, who engage in racial profiling are not. They are instead acting on the basis of what economists call “rational stereotyping.” Police know that members of some racial or ethnic groups, particularly young black males, have relatively high crime rates compared to members of most other groups. In situations where  they have little other information to go on, police therefore view members of these groups with heightened suspicion, and as a result are more likely to stop them, search them, arrest them, or otherwise take aggressive action.

If the officers who profiled Senator Tim Scott had known he was a senator, they would likely have left him alone. But all they knew just from seeing him was that he was a black male, and that led them to believe he was statistically more likely to be a threat than a woman or a member of some other racial group might be.

Racial disparities in crime rates have a variety of causes, including a long history of racism, and flawed government policies of many types. But there is little the average cop on the beat can do to alleviate these causes. He or she instead may focus primarily on the resulting differences in crime rates.

The fact that such behavior is “rational” in the sense used by economists does not make it right. Rather, this is just one of a number of situations where rational decision-making by individuals can lead to a harmful systemic outcome. Racial profiling resulting (in part) from rational stereotyping may be efficient from the standpoint of individual officers trying to cope with uncertainty under pressure. But it harms innocent people, and poisons police-community relations in the long run.

But the fact that racial profiling may often be rational makes it more difficult to root out. Police, after all, are far from the only people who use rational stereotyping as a way to cope with limited information. People of all races and walks of life routinely do so in a wide range of contexts. If you come to a party where you don’t know anyone, there is a good chance you will make snap judgments about who to try to talk to, and that those judgments may be influenced by stereotyping based on appearance, including race and gender.

Jesse Jackson, the first prominent African-American presidential candidate, once said  “There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery. Then (I) look around and see someone white and feel relieved.” Jackson was relying on rational stereotyping: a white person (at least on that particular street) was statistically less likely to be a robber than an African-American.

The point here is not that rational stereotyping by Jackson or by a party-goer is the moral equivalent of racial profiling by police. Very far from it. The latter is far, far worse, because it causes vastly greater harm and injustice. Rather, these examples help us recognize that rational stereotyping is not confined to bigots, that it is very common human behavior, and that it is therefore very hard to avoid.

When we ask police officers to suppress their instincts and avoid racial profiling—as we should!—we are also asking them to exhibit a level of self-control that most of us often fall short of. The demand here goes well beyond simply asking them to avoid being bigoted thugs. It’s asking them to refrain from using a decision-making heuristic that even otherwise well-intentioned people may often resort to.

III. What Can be Done.

While curbing racial profiling is difficult, it is not impossible. Many of the policy reforms that can curtail police abuses more generally will also indirectly reduce racial profiling. Abolishing or limiting qualified immunity can incentivize police to reduce abusive behavior of many kinds, including that which stems from profiling. Police who know they can be sued for wrongdoing are likely to be more careful about racial discrimination. Curtailing the War on Drugs and other laws criminalizing victimless offenses can eliminate many of those confrontations between police and civilians that are especially prone to racial bias. The same goes for curbing the power of police unions, which protect abusive officers of all types, including those who engage in racial discrimination.

If racial profiling is hard to detect, we can at least impose serious punishment in cases where it does get detected. If officers know that racial discrimination is likely to land them in hot water, they may try harder to avoid it, even if the chance of getting caught in any one incident is relatively low.

Perhaps the lowest-hanging fruit is getting rid of the policy under which the federal government explicitly permits the use of racial and ethnic profiling in the enforcement of immigration law in “border” areas (which are defined broadly enough to include locations where some two-thirds of the American population lives). This is by far the most extensive example of openly permitted racial discrimination in federal government policy. The Obama administration decided to let it  continue, and Trump has perpetuated it as well. If we are serious about ending racial discrimination in law enforcement, it needs to go.

Laws and incentives are important. But ending racial profiling—like other forms of invidious discrimination—also requires cultural change. Survey data indicate that most white police officers believe current law enforcement practices treat blacks fairly (though the same polls show most minority officers disagree). Many of these officers probably believe racial profiling is justified, or at least defensible under the circumstances police face on the job. That needs to change.

History shows that progress against prejudice and discrimination often depends on changing social norms, as much as on laws. When I was growing up in the 1980s, it was—in most places—socially acceptable to display open bigotry against gays and lesbians. People routinely used words such as “fag” and “homo” as insults—even in liberal Massachusetts (where I lived at the time). People who behave that way today would be socially stigmatized in most settings, even though such expressions remain legal. The stigma is one reason why such behavior is a lot less ubiquitous than it used to be.

Police work is one of the relatively few settings in which widespread racial discrimination—of a certain type—is still considered socially acceptable. If that changes, the behavior itself is likely to change, even if it remains difficult to challenge through formal legal processes. Consider what might happen if police officers known to engage in racial profiling were stigmatized by their peers or by respected authority figures in their communities. In that world, racial profiling would probably still exist; but it would likely be a good deal less common.

In sum, racial profiling is genuine problem that deserves to be taken seriously. There is no simple solution to it. We probably can’t get rid of it entirely. But much can be done to make it less widespread than it is today.

 

 

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A week ago, President Trump said:

The United States of America will be designating ANTIFA as a Terrorist Organization.

— Donald J. Trump (@realDonaldTrump) May 31, 2020

It’s not clear to me, though, what (if anything) this substantively means. The Secretary of State can designate foreign groups “Foreign Terrorist Organizations,” which makes it a crime for people to give them various “material support or resources” (see, e.g., Holder v. Humanitarian Law Project (2010))—which includes giving them money and other tangible goods, giving them your services (by joining them and doing work under their control), giving them certain kinds of advice, and the like. But I don’t know of any law that would similarly cover domestic groups, such as Antifa. (There are of course people in other countries that call themselves “Antifa,” and doubtless there is some communication among American and foreign people who labeled themselves this way, but I can’t see how that would be enough to trigger the statute, especially given the First Amendment.)

Now of course there is already a well-established legal category for domestic terrorist or otherwise criminal organization: conspiracies. If people are conspiring to burn or bomb or even just vandalize abortion clinics, or animal research facilities, or synagogues, or buildings that happen to be near demonstrations, or for that matter the property of a rival mafia family or street gang, that’s of course a crime. And there are particular crimes defined as “domestic terrorism“—”activities that”:

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Houston Police Chief Art Acevedo is conspicuously positioning himself as an advocate of reform, transparency, and accountability following George Floyd’s deadly May 25 encounter with Minneapolis cops, which set off protests across the country. But Acevedo’s rhetoric is at odds with his record since he was hired to run the Houston Police Department (HPD) in 2016.

A viral video shows the police chief talking to protesters in Houston. Acevedo, who was born in Cuba and immigrated to the United States with his parents when he was 4, passionately condemns racism, calls for unity, and expresses outrage at Floyd’s death. “We will march as a department with everybody in this community,” he says. “I will march until I can’t stand no more.”

In a May 29 Washington Post op-ed piece, Acevedo acknowledges “the searing pain and anger that many Americans feel in response to the death of George Floyd,” saying “the actions of the four officers involved shock the conscience, are inconsistent with the protocols of the policing profession and sabotage the law-enforcement community’s tireless efforts to build public trust.” He adds that “tragedies such as this one occur far too frequently in our country, especially in communities of color and low-income neighborhoods,” saying “there is still much work that our profession must do to prevent more deaths like Floyd’s and the destructive outrage that follows.”

Acevedo, whose support for gun control has endeared him to left-leaning journalists, wants “zero tolerance for dishonesty” by cops and “wide-ranging” investigations of excessive-force allegations, considering not only the legality of police conduct but also “whether there were opportunities to de-escalate.” He says officers, including police union officials, “must stand against corruption and abuse in their midst.” He recommends revising “collective bargaining agreements” that impede “swift terminations” of “bad cops” and measures aimed at preventing those officers from being hired by other law enforcement agencies.

These are all good ideas. But Acevedo does not necessarily practice what he preaches.

Writing in the Texas Monthly, Michael Hardy notes that Acevedo has paid lip service to bail reform, saying arrestees should not be kept behind bars simply because they are poor. Yet he has actively resisted attempts to reduce pretrial detention, even as the Harris County jail has become a hotbed of COVID-19 infection. Hardy also contrasts Acevedo’s verbal support for peaceful protesters with his department’s heavy-handed treatment of them.

Another person who noticed Acevedo’s public pose as a reform-minded police chief was John Nicholas, who is still waiting for answers about a January 2019 raid in which Houston narcotics officers killed his sister, Rhogena Nicholas, and her husband, Dennis Tuttle, at their home on Harding Street. “Houston Mayor Sylvester Turner and Houston Police Chief Art Acevedo seem to have all the answers about police killings and injustice around the nation,” Nicholas writes in a Houston Chronicle op-ed piece published last week. “Their strident, authoritative comments about failed policing and keeping the peace in other cities and states leave quite an impression. Yet, in Houston, their continued silence about the murderous Harding Street no-knock raid by Houston police that killed my sister Rhogena Nicholas, her husband and their dog 16 months ago also speaks volumes.”

The raid, which was based on a warrant alleging that Tuttle and Nicholas were selling heroin, stank to high heaven from the beginning. According to the official police account, the officers killed Tuttle and Nicholas during a gun battle that began after the cops stormed into the house and used a shotgun to kill the couple’s dog.

Acevedo said Tuttle fired at the officers with a revolver, and he suggested that Tuttle must have known the armed invaders breaking into his home were police officers. But the cops, who were not wearing uniforms, knocked in the front door of the house at the same moment they supposedly announced themselves, then immediately fired a shotgun. At the time, a lawyer for Nicholas’ family later said, she and Tuttle were napping in their bedroom. In these circumstances—which are similar to what happened during the Louisville, Kentucky, raid that killed Breonna Taylor last March—it is plausible that Tuttle thought he was defending his home against criminals.

Sixteen months later, it is still not clear who fired the shots that struck the four officers who were wounded by gunfire during the Harding Street raid. Yet Acevedo indignantly rejected the suggestion that they might have been hit by friendly fire. He also hailed the officers as “heroes,” posthumously tarred Tuttle and Nicholas as dangerous criminals, and claimed that people who lived nearby had thanked the police for taking action against a locally notorious “drug house.” That claim was inconsistent with the accounts of actual neighbors and the results of the search, which found no evidence of drug dealing. It also seemed odd that Gerald Goines, the officer who obtained the warrant, supposedly had been investigating the alleged heroin operation for two weeks but did not even know Tuttle’s name.

Acevedo, in short, reflexively defended his officers, despite evidence that the warrant was fishy and that the raid was reckless at best. Later it emerged that Goines had lied in his search warrant affidavit, describing a heroin purchase that never happened by a confidential informant who did not exist. He now faces state murder charges and federal civil rights charges in connection with the deadly raid. Another narcotics officer, Steven Bryant, also faces state and federal charges for backing up the story that Goines concocted to obtain the warrant.

The Harris County District Attorney’s Office, which is reviewing drug cases that Goines handled, so far has identified 164 dubious convictions. One of them involved none other than George Floyd, a Houston native whom Goines arrested in 2004 for allegedly selling him a small amount of crack cocaine. Floyd pleaded guilty and was sentenced to 10 months in jail.

Acevedo wants credit for uncovering Goines’ deadly dishonesty. “What would have been more tragic for this community, and for this department, than the incident itself is for the department to have failed to investigate it to the extent that we did,” he told former Houston Chronicle reporter Keri Blakinger, who covered the Harding Street raid, in a Texas Monthly interview last February. He also wants credit for the reforms he announced after the raid, including high-level approval for no-knock search warrants and a requirement that narcotics officers wear body cameras during raids.

The dangers of no-knock raids, especially in cases involving nonviolent crimes, have been a subject of national discussion for decades. The importance of body cameras in documenting what happened when raids go horribly wrong likewise was widely recognized long before Acevedo decided that his drug warriors should wear them. In this case, body camera footage could have clarified the circumstances that led to the senseless deaths of two people. Acevedo’s belated adoption of these policies hardly makes him look like a forward-thinking reformer.

Nor does Acevedo’s insistence that the crimes committed by Goines and Bryant did not reflect a “systemic” problem within the HPD’s Narcotics Division or the department generally. The HPD employed Goines for 34 years, and prosecutors so far have sought dismissal of 164 drug cases he instigated over a period of at least 15 years. It is hard to believe that no one else was complicit in Goines’ shady practices spanning more than a decade, either by actively assisting him, by looking the other way, or by failing to adequately supervise his activities. Harris County District Attorney Kim Ogg says her office is investigating “other officers” in Goines’ squad.

A few weeks after the disastrous operation that killed Nicholas and Tuttle, Acevedo  promised he would “leave no stone unturned to determine the good, the bad and the ugly.” John Nicholas has his doubts:

When will the city finally tell the truth about—or even address—the killings of my sister and her husband? When will the city release any of the forensic and ballistics information, statements by Houston Police Department personnel that may or may not support the city’s stories and evidence on the ground, the audit of narcotics units and disciplinary action, if any, taken against its managers?

Although the Harris County District Attorney’s Office is reviewing cases that relied on the testimony of Gerald Goines, when will the police department carry out a full review of the entire unit and its managers with full accountability? How many other families were victimized by the decades-long corruption of HPD Narcotics Unit 15?

How high did knowledge of the illicit activities of HPD officers Goines and Steven Bryant go in the police department?

Our independent investigation found evidence that an HPD shooter fired blindly through the home’s walls and into the house, including the likely fatal shot at my sister on her own couch. Who killed my sister in the barrage of bullets fired from outside her home?

What happened to the evidence our family’s independent investigation of the killing developed? Why does the question of “friendly fire” and the likelihood that my sister was shot blindly while seated on her couch remain unanswered?

Acevedo’s response to the Harding Street raid—including his praise of the officers responsible for it; his credulous acceptance of Goines’ dubious justification for the warrant; his casual defamation of Nicholas and Tuttle; his automatic rejection of the possibility that officers shot each other; his bizarre insistence, even after Goines’ search-warrant fraud was revealed, that the cops “had probable cause to be there”; his denial of systemic problems; and the stonewalling described by Nicholas—is not exactly a model of the transparency and accountability he claims to favor. If Acevedo had any shame, his reaction to the death of George Floyd would have featured less grandstanding and more introspection.

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The Free Beacon (Chrissy Clark) reports:

The University of California Los Angeles has launched an inquiry into a teacher for reading aloud Martin Luther King’s “Letter from Birmingham Jail” because the civil rights document includes the n-word.

In a department-wide email obtained exclusively by the Washington Free Beacon, UCLA political science chair Michael Chwe and two other department leaders condemned lecturer W. Ajax Peris’s use of the racially incendiary word in a lecture he was delivering about the history of racism against African Americans. UCLA officials said the department referred Peris, an Air Force veteran, to the university’s Discrimination Prevention Office (DPO) and urged students to come forward with complaints. The email also faulted the postdoctoral lecturer for showing a documentary to the class in which a lynching is described and not stopping the presentation when students complained.

“The lecturer also showed a portion of a documentary which included graphic images and descriptions of lynching, with a narrator who quoted the n-word in explaining the history of lynching. Many students expressed distress and anger regarding the lecture and the lecturer’s response to their concerns during the lecture,” said the letter, which was signed by Chwe, vice chair for graduate studies Lorrie Frasure, and vice chair for undergraduate studies Chris Tausanovitch. “We share students’ concerns that the lecturer did not simply pause and reassess their teaching pedagogy to meet the students’ needs.”

In a video taken by a UCLA student, Peris, who is white, can be heard reading King’s celebrated letter written in the aftermath of the civil rights leader’s arrest for demonstrating against Jim Crow laws. The letter was read in tandem with his lecture on the history of racism against African Americans in the United States.

Thank you for bringing this to our attention. This information has been shared with UCLA’s Office of Equity, Diversity and Inclusion for review.

— UCLA College (@UCLACollege) June 3, 2020

The Foundation for Individual Rights in Education (FIRE) is quoted as saying that:

Peris’s academic freedom, as a faculty member at a public institution bound by the First Amendment, includes the right to decide whether and how to confront or discuss difficult or offensive material, including historical readings that document our nation’s centuries-long history of racism,” Patton said. “Doing so does not amount to unlawful discrimination or harassment, and the law is abundantly clear that UCLA could not investigate or punish a professor for exercising his expressive or academic freedom.”

The College Fix reports that UCLA hasn’t responded, but of course if they do, I will post their answer.

For my posts on a similar controversy involving me, see here and here; for my post about why it would be illegal—even apart from the First Amendment—for a university to have different rules about what documents can be quoted by black faculty members and other faculty members, see here. My controversy differs from this one in that (1) there is no c comment from UCLA central administration, at least yet, as to my speech, and (2) I haven’t apologized, because, as I explain in my posts, I think it’s quite proper at a university, and especially at a law school, to accurately discuss the facts (whether of a historical incident, a precedent, a current controversy, or what have you). Indeed, I think it would be quite wrong for a university to demand expurgation and euphemism in such situations, whether in classes about law, history, political science, film, music, literature, or whatever else. (Think of how many films you couldn’t show in a modern film class, if it’s established that Peris should be punished for showing the lynching film.)

Certainly the legal profession (my own field) draws a sharp between using a word as an insult, which would be rightly condemned, and mentioning it as part of a quote or a discussion of the facts of the case. Literally over 10,000 court opinions (here’s a free-to-access subset), over 10,000 briefs, and thousands of law review articles accurately quote “nigger” and other such words—and I can’t see how in law school people should be barred from saying what appears routinely in court opinions written by leading Justices and judges of all races and all ideological views. But I think the same should be true more broadly of all disciplines in the university, which should be at least as committed to accurate discussion of the facts, however grim the facts can be, as are judges and lawyers.

UPDATE 6/7/20, 5:20 pm: Just to be precise, I’ve revised the title from “UCLA Investigating Poli Sci Professor for Reading MLK’s Letter from Birmingham Jail, Showing Video About Lynching” to “UCLA Poli Sci Department Condemns Lecturer for Reading MLK’s Letter from Birmingham Jail, Showing Video About Lynching” and added the subheading. It’s possible that the Office of Equity, Diversity, and Inclusion isn’t yet investigating this (or for that matter might not investigate it), so I think I should focus on the political science department’s condemnation and referral to the Discrimination Prevention Office (both of which matter a tremendous amount for faculty members, of course, especially untenured lecturers).

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As I noted previously, I think defunding the police is a foolish goal if it is to be done willy-nilly in a pique of anger against police brutality, as it could result in reduced public safety without any reforms. I also think the notion of getting rid of police departments entirely, if that’s the goal, is beyond foolish.

This doesn’t mean, however, that cities shouldn’t take a hard look at whether they money spent on police is being spent wisely. For one thing, police departments are notorious for overtime, disability, and pension abuse. For another, some cities may have far more cops than needed.

Take New York City. In 1990, at the peak of the decades-long crime wave, New York City had 212,458 violent crimes, 932,416 property crimes, and 2,605 murders. At the time, it had a police force consisting of 26,756 uniformed and 9,483 nonuniformed personnel.

In 2018, the last year for which I could find statistics, New York City had 68,495 violent crimes, 281,507 property crimes, and 562 murders. In other words, crime is down dramatically.

Nevertheless, the New York City police force has since grown dramatically, consisting of approximately 36,000 officers and 19,000 civilian employees. Perhaps having more cops on the payroll has contributed to the lower crime rate, though crime rates have fallen nationwide. Even if so, the more than doubling of civilian employees is an especially stark statistic. With far fewer crimes to process, how could New York City possibly need twice as many civilian employees as in 1990?

As a general matter, the police tend to be fairly popular, police unions are very strong, and no politician loses votes by promising to spend more money on policing. We have a unique moment when there is widespread sentiment that police budgets should no longer be a sacred cow. Along with reforms to hold officers accountable for police brutality and reduce its frequency, this would be a great time to dispense with simplistic sloganeering, and instead take a long, hard look at just how many police officers and civilian employees cities need for current crime rates.

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6/7/1965: Griswold v. Connecticut is decided.

 

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During an April 2 interview with Chris Wallace on Fox News, Surgeon General Jerome Adams compared deaths caused by COVID-19 to deaths caused by smoking and drug abuse. “More people will die, even in the worst projections, from cigarette smoking in this country than are going to die from coronavirus this year,” he said.

Wallace questioned the analogy. “Dr. Adams,” he said, “there’s a big difference between opioids and cigarettes, which are something that people decide to use or not to use, [and] the coronavirus, which people catch. It’s not an individual choice.”

The distinction that Wallace considered commonsensical is not one that public health officials like Adams recognize. As they see it, their mission is minimizing “morbidity and mortality,” whether those things are caused by communicable diseases or by lifestyle choices.

Equating true epidemics with metaphorical “epidemics” of risky behavior distracts public health agencies from their central mission of protecting people against external threats such as pollution and pathogens. It undermines their moral authority by implying that the rationale for that uncontroversial mission also justifies a wide-ranging paternalism, and it damages their credibility by involving them in high-handed, manipulative propaganda.

The ambiguity about what it means for the government to protect public health also makes it harder to think clearly about the limits of state power in responding to literal epidemics. The classical liberal tradition has always recognized that the state has a legitimate role to play in protecting the public from contagious diseases. When we are confronted by an actual public health crisis like the COVID-19 pandemic, the question is not whether the use of force can be justified but whether a particular policy is appropriate. That question is hard to answer when there is a high degree of uncertainty about the threat posed by the disease and the cost of limiting its spread.

The Vaping ‘Epidemic’

Before the new coronavirus came along, the U.S. Centers for Disease Control and Prevention (CDC) spent a lot of time and effort warning us about a very different kind of “epidemic”: an increase in e-cigarette use by teenagers, coupled with an outbreak of vaping-related lung injuries. The first concern did not involve any sort of disease; the latter did, but unlike COVID-19, the condition that the CDC dubbed “e-cigarette, or vaping, product use-associated lung injury” (EVALI) was not contagious. And contrary to the CDC’s misleading nomenclature and dangerously misguided initial advice, the two developments appeared to be completely unrelated.

Even under a broad understanding of public health, the CDC’s conflation of EVALI with vaping in general was counterproductive, impeding the harm-reducing shift from conventional cigarettes to nicotine delivery systems that are far less dangerous. By fostering confusion about the relative hazards of smoking and vaping, the CDC hurt its own credibility on the eve of a public health crisis in which policy makers and the rest of us were expected to rely on its expertise.

As Chris Wallace probably would agree, vaping is something people choose to do. In that respect it resembles many other phenomena that politicians, bureaucrats, and academics have described as public health problems, including smoking, drinking, illegal drug use, overeating, physical inactivity, riding a motorcycle or bicycle without a helmet, gambling, playing violent video games, and watching pornography. COVID-19, by contrast, is something that happens to people.

There is a strong argument for coercive measures to deal with a potentially deadly disease that moves from person to person. That argument is much less compelling when we are talking about actions that may lead to disease or injury but do not inherently endanger other people.

The tendency to describe nearly anything that large numbers of people do as an epidemic when others view it as pernicious elides this crucial distinction. If protecting public health is presumed to be a legitimate function of government, an open-ended definition of that term is a prescription for constant political meddling in personal choices through taxes, regulations, prohibitions, and state-sponsored nagging. Likening choices to contagious diseases invites the government to act as if those choices, and the personal tastes and preferences underlying them, are morally no more important than a microorganism’s evolutionary imperative to reproduce by infecting human hosts.

Once a particular pattern of behavior has been defined as an epidemic, that framing can lead to policies that make no sense even if you accept the collectivist calculus at the heart of public health as it is currently understood. That is what happened with vaping, which the CDC was predisposed to view as problematic, a prejudice that colored its depiction of EVALI. Even though it was clear early on that vaping-related lung injuries overwhelmingly involved black-market cannabis products, the CDC repeatedly intimated that legal, nicotine-delivering e-cigarettes might kill you. That message endangered public health by falsely implying that people—teenagers as well as adults—would be safer if they smoked.

Only belatedly did the CDC recalibrate its guidance to focus on the potential hazards of THC vapes, “particularly from informal sources like friends, family, or in-person or online dealers.” It also foregrounded a warning that “adults using nicotine-containing e-cigarette, or vaping, products as an alternative to cigarettes should not go back to smoking”—advice that surely is equally sound for teenagers who vape instead of smoking.

Bad Advice and Insufficient Information

When the CDC switched gears from vaping to COVID-19, its habit of misleading people, ostensibly for their own good, was still evident. The agency’s initial advice about face masks and virus tests gave the public false assurances regarding the danger posed by the epidemic while discounting the lifesaving value of those protective tools.

Until early April, the CDC advised most Americans against wearing face masks in public. “If you are sick,” the agency originally said on its website, “you should wear a facemask when you are around other people (e.g., sharing a room or vehicle) and before you enter a healthcare provider’s office.” But “if you are NOT sick,” it added, “you do not need to wear a facemask unless you are caring for someone who is sick (and they are not able to wear a facemask). Facemasks may be in short supply and they should be saved for caregivers.”

After much criticism, the CDC revised its recommendations, telling people to “cover your mouth and nose with a cloth face cover when around others.” It explained the shift by citing the risk of asymptomatic infection, a phenomenon that scientists had been describing for months.

Like the CDC’s face mask recommendations, its COVID-19 testing criteria were driven by a shortage—in this case, a government-engineered shortage. At first the agency monopolized testing, and the kits it shipped to state laboratories in early February were defective. The CDC and the Food and Drug Administration initially blocked researchers and businesses from developing or conducting tests, which aggravated a shortage that made it impossible to get a handle on the size and severity of the epidemic in its early stages.

Making a false virtue of necessity, the CDC set irrationally narrow criteria for testing, initially restricting it to symptomatic travelers from China and people who had been in close contact with them. As of late April, it was still saying that “not everyone needs to be tested for COVID-19.”

The truth was that everyone—or at least representative samples—did need to be tested, both for the virus and for the antibodies to it. That was the only way for policy makers to get a clearer sense of how prevalent the virus was, how quickly it was spreading, how lethal it was, and how many people had developed immunity to it. Without wide testing, they could only guess at those vitally important variables, even as they were making policy decisions with potentially devastating economic consequences.

While it was giving bad advice about face masks and tests, the CDC was projecting COVID-19 deaths based on a model that counterfactually assumed the absence of voluntary measures such as hand washing, working at home, avoiding crowds, and limiting social interactions. Such worst-case scenarios, which had a strong influence on state and federal policies, presented a false choice between doing nothing and imposing the sort of sweeping restrictions that we began to see across the country in March: orders closing “nonessential” businesses and instructing Americans to remain at home except for “essential” work or life-sustaining errands.

Another obvious option was the targeted use of isolation and quarantine, coupled with contact tracing, to protect the public from known or suspected disease carriers. But that approach was foreclosed by the test kit shortage, which made it impossible to do the screening that such a strategy requires. And because meager testing resources left state and local officials ignorant of crucial facts about the epidemic, they made policy decisions without the evidence necessary to assess their proportionality or cost-effectiveness.

The Rationale for Coercive Measures

The general case for using force in response to outbreaks of contagious illnesses is straightforward. Someone who carries a potentially lethal pathogen, like someone who dumps toxins into the water or air, endangers other people. Government responses to that threat clearly fit within the justification for state action limned by classical liberal philosopher John Stuart Mill in his 1859 essay On Liberty: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

Mill’s principle distinguishes between the broad and narrow conceptions of public health as a license for government intervention. It rules out paternalistic policies such as alcohol prohibition (which he opposed) while allowing the exercise of power over individuals (such as disease carriers) who pose a direct threat to others.

The U.S. Supreme Court has long recognized that states have broad authority, under their general “police power,” to protect the public from communicable diseases. “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others,” the justices observed in Jacobson v. Massachusetts, a 1905 decision that upheld mandatory smallpox vaccination.

But the Court also said public health authority has limits: “An acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.”

State quarantine laws, which include safeguards aimed at protecting the rights of alleged carriers, reflect that balance between protecting the public and respecting individual freedom. The quarantine regulations in Washington, the first state to report a COVID-19 outbreak, illustrate the tension between those two goals.

Under Washington’s regulations, a local health officer can obtain a court order requiring isolation or quarantine by showing there is a “reasonable basis” to believe it is “necessary to prevent a serious and imminent risk to the health and safety of others.” Those orders last up to 10 days but can be extended up to a month, based on “clear, cogent, and convincing evidence that isolation or quarantine is necessary to prevent a serious and imminent risk to the health and safety of others.”

There are several restrictions on that authority. The health officer must first make “reasonable efforts, which shall be documented, to obtain voluntary compliance” or else determine, “in his or her professional judgment,” that “seeking voluntary compliance would create a risk of serious harm.” The rules also specify that “isolation or quarantine must be by the least restrictive means necessary” to prevent the spread of a communicable disease.

The health status of individuals subject to orders “must be monitored regularly to determine if they require continued isolation or quarantine,” and they “must be released as soon as practicable” when the health officer determines that they no longer pose a threat. Isolated or quarantined individuals have a right to petition for release, with the assistance of court-appointed counsel, in which case the government has to “show cause” for their continued detention.

Such due process protections are not merely theoretical. In 2014, Kaci Hickox, a nurse who had treated Ebola patients in Sierra Leone, successfully challenged a three-week home detention order issued by Maine’s Republican governor.

To meet the standard set by Maine’s quarantine law, the state had to present “clear and convincing evidence” that Hickox posed a “public health threat” and that a 21-day quarantine was “the least restrictive measure” to deal with it. Charles LaVerdiere, chief judge of the Maine District Courts, ruled that any potential threat posed by Hickox, who had tested negative for the virus, could be adequately addressed by “direct active monitoring” to detect the onset of symptoms should she become ill. Since Hickox “currently does not show any symptoms of Ebola and is therefore not infectious,” LaVerdiere said, forcibly confining her to her home was not justified.

From Quarantines to Lockdowns

Targeted quarantines like the one that Hickox challenged are a far cry from the stay-at-home orders that state and local governments issued in response to COVID-19. Those policies were not based on an allegation that any particular individual or group posed a public health threat, and it’s likely that the vast majority of the people affected by the orders were not actually carrying the virus.

In early March, a week before local and state governments began imposing COVID-19 lockdowns, Vox asked Lindsay Wiley, a health law professor at American University’s Washington College of Law, about the legality of such policies. Wiley said “a mandatory geographic quarantine” would “probably be unconstitutional under most scenarios” but noted that the issue had never been squarely addressed.

“The courts would typically require government officials to try voluntary measures first,” Wiley explained, “as a way of proving that mandatory measures are actually necessary. Furthermore, any mandated measures would have to be narrowly tailored and backed by evidence….To pass constitutional muster, an order not just urging but requiring all people within a particular area to stay home would have to be justified by strong evidence that it was absolutely necessary and that other, less restrictive measures would be inadequate to slow the spread of disease.”

Around the same time, Cornell law professor Michael Dorf noted the disjunction between lockdowns and the standards prescribed by quarantine and civil commitment laws. “In normal times, the government may not confine people for the public safety absent ‘clear and convincing evidence’ that they pose a danger to themselves or others,” he wrote in a Verdict essay. “One would hope that during a pandemic the courts would construe that standard on a population basis rather than one by one. Thus, while there may not be clear and convincing evidence that any particular asymptomatic individual poses a threat, there is such evidence for the population as a whole.”

Even if it were possible to make such a judgment about “the population as a whole,” it would require evidence concerning the prevalence of the COVID-19 virus that policy makers did not have when they imposed the lockdowns. Without early and wide testing, politicians had no idea how many Americans were infected, let alone how prevalence varied from one part of the country to another. For the same reason, they did not know how lethal the virus was, a factor that surely should figure in decisions affecting the liberty and livelihoods of so many people.

There is historical precedent in the United States for trying to reduce the spread of disease by legally restricting social and economic activity. During the 1918 Spanish flu pandemic, for example, St. Louis banned public gatherings and closed schools, movie theaters, and pool halls. San Francisco shuttered “all places of public amusement.” But the restrictions of that era were not as pervasive or as broad as the measures implemented in response to COVID-19, which confined hundreds of millions of people to their homes except for government-approved purposes.

Lockdown supporters thought the experience with the 1918 epidemic reinforced the case for more aggressive and uniform measures. They argued that cities like St. Louis and San Francisco fared better than cities like Philadelphia, which acted later. If more cities had imposed broad restrictions early on, they suggested, the death toll from the pandemic—which ultimately killed some 50 million people worldwide, including about 675,000 in the United States—might have been lower.

They may be right about that. But if the effectiveness of those measures remains unclear a century later, what chance did state and local officials have of making wise decisions about COVID-19 in the heat of the moment without knowing how many people were carriers, how many were asymptomatic, how many had developed immunity, or how many could be expected to die from the disease? Uncertainty about those basic facts made it impossible to properly weigh the costs and benefits of the course they chose.

Even as it rejected the plea of a man who objected to mandatory smallpox vaccination in Jacobson, the Supreme Court allowed that judicial intervention might be appropriate when regulations go “far beyond what was reasonably required for the safety of the public.” But as politicians across the country shut down the economy this spring and ordered people to stay home until further notice, they did not have the information required to make that judgment.

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Demonstrators who may have numbered in the tens of thousands poured into D.C.’s streets today to protest police violence in the wake of the killing of George Floyd. It was the city’s largest protest since Floyd’s death.

The atmosphere was festive, the participants were peaceful, and the law enforcement presence was relatively small and hands-off. This marks a contrast with Washington’s protests earlier in the week, which were angry, tense, and marked by vandalism, arson, and indiscriminate police crackdowns.

Early in the afternoon, crowds of demonstrators stretched all along the National Mall, from the U.S. Capitol building to the Lincoln Memorial. Speeches were given at each end, while periodic marches would break off and head toward the White House.

23rd and Constitution, march from Lincoln Memorial to WH @PoPville #DCProtests pic.twitter.com/BDrMcEiK7D

— Dean Lieberman (@deanlieberman) June 6, 2020

Thousands protesting outside Lincoln Memorial in #WashingtonDC today for #BlackLivesMatter. Definitely biggest day of George Floyd protests here.

You can see Reflecting Pool and Washington Monument in background: pic.twitter.com/TwgjAEPoLf

— Joyce Karam (@Joyce_Karam) June 6, 2020

Other demonstrators gathered just north of the White House at the newly christened Black Lives Matter Plaza. The St. John’s Episcopal Church and Hay-Adams hotel along the plaza were both set on fire last weekend. On Monday, police cleared out peaceful protesters from the area with batons and pepper spray so that Trump could give a short speech in front of the St. John’s building.

Today, in contrast, a large but upbeat crowd milled around the plaza, waving signs and shouting the familiar chants of “black lives matter” and “no justice, no peace.” Further up the block, demonstrators danced to music blasting from loudspeakers.

Lot of dancing today pic.twitter.com/5EPqd87C1W

— Christian Britschgi (@christianbrits) June 6, 2020

Helping beat the heat were countless stations where people could grab free water, sports drinks, and granola bars. Some people were even passing out bagged sandwiches. Others brought pizza.

So many snacks. Someone even bought pizza pic.twitter.com/P5CjVaRyhX

— Christian Britschgi (@christianbrits) June 6, 2020

One group of high-school-aged girls handing out Gatorades and Ritz crackers to demonstrators told me they’d managed to raise $2,000 to supply their snack stand in just 24 hours.

Further away from the White House, bars and restaurants that had been boarded up or closed earlier in the week selling beer and hot dogs to passersby.

The police presence at today’s demonstrations was minimal compared to past days. Lafayette Square, in front of the White House, was still heavily fenced off, but the large contingent of riot police and National Guard troops that had been stationed there was nowhere to be seen.

Instead, a group from the New Black Panther Party occupied a section of the fence, from where they delivered short speeches through megaphones.”How many of you know what a nightstick feels like? How many have been choked out by police?” one shouted. A few people in the crowd replied in the affirmative.

A handful of police cars and military vehicles were positioned a few blocks from the White House, but they were outnumbered by ice cream and food trucks. The law enforcement personnel standing next to the vehicles looked mostly bored. One National Guard trooper waved periodically to protestors.

Helping to keep things calm was a contingent from the group Social Workers for Justice, who passed out snacks while wearing bright red “de-escalation” t-shirts.

One woman with the group explained that they’d been founded only a couple of days ago. They’ve been coming to protests to try to calm down anyone they saw getting too heated or angry.

“We go the same places as the cops without having to beat people,” said a man with the group.

Also present was a group of around 100 nurses, doctors, and medical students marching with signs reading “White Coats for Black Lives.”

One man with the group, a second-year medical student at George Washington University, told me about the ways the medical profession had perpetuated racism in the past. (He mentioned the Tuskegee experiments as an example.) Continuing health disparities today, he added, make it crucial that doctors and nurses show solidarity with the black community.

“White coats for black lives” folks out in force pic.twitter.com/20BFjyfYSm

— Christian Britschgi (@christianbrits) June 6, 2020

When I asked about the risks large gatherings like today’s posed for spreading COVID-19, he read a prepared statement claiming that these marches shouldn’t be considered a transmission risk given the role they could play in ending systemic racism. But protests against shelter-in-place orders were still a transmission risk, he felt, given that they were opposed to public health interventions and were “rooted in white nationalism.”

The large marches in D.C. today were replicated in cities across the country. News reports indicate that those rallies also tended to attract large crowds and little violence.

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