Friday, October 28, 2016

Law Enforcement

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Law Enforcement

From the Ferguson Police Department’s first public statement about the police-involved shooting of Michael Brown in August 2014, the town of Ferguson, Missouri was doomed. Like Newton’s First Law of Motion, the shooting started a cascading series of events that continues a year and a half later.  The rounds of looting, rioting, protesting and media circuses, has morphed into a massive lawsuit filed against the small suburban town by the U.S. Department of Justice.

If one accepts the allegations in Attorney General Loretta Lynch’s lawsuit, Ferguson is nothing but a teeming hotbed of racial hatred and official incompetence; the only solution for which is federal control.  In the government’s eyes, the town has no regard whatsoever for the Constitution and laws of this country, and has engaged in widespread and systemic violation of civil rights.  Tough stuff, indeed; but the Department’s approach reflects more an example of how to address a manageable problem with a wrecking ball than a tool kit.

Tragic as it was, there was nothing so remarkable or unique about the shooting of Brown that justifies this action by the Justice Department. The aggressive and authoritarian manner in which the Department has hounded the Ferguson Police Department over the past 18-months is far different from the way in which previous presidents and federal prosecutors, including myself, dealt with incidents in which law enforcement officers or departments violated individuals’ civil rights. By vigorously prosecuting such cases individually as warranted, prosecutors and the Department of Justice itself were able to hold the officer or officers accountable; and without attacking entire departments or needlessly imposing federal government control over local government responsibilities.

For U.S. Attorney General Loretta Lynch’s Department of Justice, however, control – not justice – is the real goal; and Ferguson has become ground zero for its crusade to scrutinize and punish law enforcement officers and departments for perceived racial injustices. In effect, the Department is seeking to implement its own form of “Common Core” for Law Enforcement, wherein local control is stripped away in favor of federal policing standards that have been packaged into what may be “politically correct” on the surface, but have little actual impact on the troubling issues that linger in the criminal justice system.

To an Administration obsessed with “optics” more than genuine reform, this façade may fulfill its objectives. However, for those who genuinely care about individual liberty and constitutional conduct within the justice system, they actually are poisoning public debate about criminal justice reform and exacerbating the already strained tensions between citizens, police and the federal government.

By showing that it cares about civil liberties by attacking police, the Obama Administration is making it harder to protect civil liberties.

For the first time in decades, for example, we have an opportunity to achieve substantial and lasting criminal justice reform through federal legislation. Reforms that would help restore civil liberties to the criminal prosecution process while providing much-needed relief to an overcrowded and costly prison system, currently are pending in the Congress. These measures enjoy strong bipartisan support, including among policy organizations ranging from the leftist Center for American Progress to conservative FreedomWorks. It is one of those rare scenarios in which Democrats, Republicansand the President are in at least partial agreement on an issue that actually strengthens civil liberties.

Unfortunately, without Administration support and in the absence of public demand for passing these reforms, the pending bills have languished without votes to send them to the President for signature.  Ironically, the Justice Department’s highly visible crusade against Ferguson (and other police departments) is much to blame for this failure.

By antagonizing police departments and politicizing police-involved shootings of minorities, the Obama Administration has turned the conversation about “justice reform” into a false dichotomy between support of police on the one hand, or social justice groups like “Black Lives Matter” on the other. In such a polarized environment, real efforts at reform, such as those pending in Congress, are given nary a thought, much less active support from those members of Congress who can help win their passage. Meanwhile, individual Democrats and Republicans who oppose such efforts are undermining the bills before they ever reach the floor.

The clock is ticking on criminal justice reform, and an opportunity such as this for genuine, lasting reform is truly once-in-a-lifetime. If Obama cares to salvage at least a sliver of a notable legacy, he should abandon his shortsighted and misguided drive to place local police departments under Uncle Sam’s thumb, and help shift the public conversation back to substantive reforms that really matter.


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Government Spying Fusion Centers

Earlier this month, I wrote about a case out of Maryland involving a Florida resident who was pulled-over by Maryland Transportation Authority (MDTA) police, and subjected to harassment and intimidation, all because the driver was the holder of a Florida concealed carry permit. The incident raised serious questions about the clear bias against firearm owners in a state with a reputation for being notoriously anti-Second Amendment. More troubling, is the still–unanswered question about how MDTA police even knew of an individual concealed carry permit issued outside of their state.

As egregious as are the circumstances surrounding the Maryland incident, it is just one of a growing number of examples of how information about individuals exercising their constitutional rights, is being data-based and shared by law enforcement databases as “suspicious activity.”

Following its investigation of the September 11, 2001 terror attacks, the 9/11 Commission cited a lack of cooperation and information-sharing among law enforcement agencies, as a major vulnerability in America’s national security. One of byproducts of the Commission’s recommendations was the creation of more than 40 state and urban area fusion centers. These were designed to serve as localized clearinghouses for the “receipt, analysis, gathering, and sharing of threat-related information” from partners within law enforcement, public safety, and even the private sector.

The selling point for the states (in addition to money) was that access to such a national network of “suspicious activity” data, would improve the safety of local law enforcement, and make them more effective at stopping crime. For the Feds, the collection and analysis of localized threat assessments, and a far larger flow of information from local law enforcement to the Department of Homeland Security, was the driving force. Thus the DHS (in effect, the entire federal government) gained unprecedented access to a vast data trove on private citizens that goes far beyond anything relating to criminal activity, much less terrorism.

Furthermore, by tapping into a “national” exchange of information that is, in part, contributed to by partners in the private sector, the DHS also found a way to circumvent privacy restrictions in the Privacy Act of 1974. Now, DHS can use the efficiency and flexibility of the private sector to mine and analyze data that, by law, it is prohibited from collecting and maintaining on its own. Moreover, national crime database systems such as the Regional Information Sharing Systems (RISSnet) are federally funded, but controlled by state and local level law enforcement entities; adding even more insulation from oversight despite its “critical” role in the overall Information Sharing Environment — the federal nexus of information sharing through which all of this data eventually flows.

The original goal may have been to improve communication between levels of law enforcement, but instead law enforcement has created one enormous Cloud of data on private citizens, that is breathtaking in its scope. This vast database is subject to virtually no oversight or accountability as to what information is collected, who is able to access the data, or how the data is used in “fighting crime.” In essence, this “fusion” has created the same type of shadowy “DarkNet” for law enforcement information sharing for which the federal government has demonized (and prosecuted) the private sector. The end result leaves local law enforcement with resources once only available to federal agencies, and federal agencies with access to surveillance capabilities previously available only to local law enforcement.

The only privacy protections afforded to citizens within the ISE are the same hollow promises of respecting “civil liberties” made by those who reject any hint of greater civil liberties oversight, or state and local law enforcement refusing to participate in this information sharing – something not likely to happen given the clear trends of over-criminalization and over-militarization. Ultimately, it is the lack of privacy protections or civil liberties oversight that allows law enforcement to turn completely legal activities, like owning a gun or supporting third-party candidates, into actionable intelligence based on some vague notion of “suspicious activity.”

Given the vastness of these networks, and collusion between private sector and law enforcement officials at the local, state and federal levels, only Congress has the necessary leverage to penetrate the shield that for so long has protected this law enforcement “DarkNet” from scrutiny. Its task however, will not be easy. Despite serious deficiencies in the fusion centers system documented in a two-year, bipartisan investigation by the Senate Permanent Subcommittee on Investigations the system remains, in the view of the respected Electronic Frontier Foundation, completely immune from oversight.

Now that Republicans, led by pro-privacy leaders such as Sen. Rand Paul and Rep. Justin Amash, have regained control over the House and the Senate, GOP officials should, at a minimum, immediately call for hearings. The value of such hearings lies in uncovering what exactly is being shared among law enforcement agencies about private citizens on these networks; and then to legislate safeguards to ensure the constitutional rights respected in one state are not used against law-abiding citizens in another. Otherwise, the type of abuse against a lawful Florida concealed-carry permit holder by Maryland traffic police, will become even more commonplace in states where freedom is trumped by “security.”

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Prohibition Violence

The National Law Enforcement Officers Memorial Fund released its report on the number of fatalities among law enforcement officers (LEOs).

The report cites that 126 LEOs died in the line of duty in 2014.

While the majority of deaths were traffic related incidents, the number of deaths from firearms incidents rose by 56% in comparison to 2013.

The number one cause of death that took place with a felony act were “ambush” style attacks, similar to the one that took the lives of NYPD officers Wenjian Loi and Rafael Ramos. The two officers were killed in retaliation for the deaths of Eric Garner and Michael Brown.

Fifteen officers were killed in ambush assaults in 2014 marking the highest number of deaths of that type in nine years.

While the average number of LEO deaths was below the national annual average of 151, the 56% rise in ambush attacks is a statistical outlier for the year and may set the tone for 2015 if current tension between the black community and law enforcement continues.

The deadliest year ever for police was 1930 when 316 officers were killed.

That year represented the high-water mark for prohibition, but from 1919 to 1938, the number of officers killed in action stayed well above 200.

While alcohol prohibition took effect nationwide in 1920, many states pre-empted the ratification by passing laws earlier. Additionally, Congress passed the Wartime Prohibition Act, which took effect on July 1, 1919.

Deaths by law enforcement went from 179 in 1918 to 238 in 1919. A rise of 33%.

Narrowing down those numbers by deaths caused by non-accidental gunfire, the increase is actually 47%.

At the time of prohibition, respect for the law and government was at an all time low. Police were either corrupt or ineffective in enforcing prohibition laws. Government, specifically Congress was a laughing stock – possibly because they were all drunk when passing dry laws.

Congress even had their own bootlegger, George Cassidy, who was known as the “man in the green hat” who plowed politicians with alcohol for a decade during prohibition.

Jumping forward to the present, at least within the black community, respect for the law and law enforcement officers is at a low point – low enough for men like Michael Brown to attack a police officer . . . or low enough for six teenagers to attack two Boston cops serving a warrant . . . or for gunman to open fire on a LA patrol car . . . or for two NYDP cops to be knelt down and executed.

Unlike the prohibition era, there are no laws to be repealed that can fix this and national leaders such as Al Sharpton, President Obama and Eric Holder have only added fuel to the flames.

Trying times ahead.



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