All this talk from progressives about how felon possession laws shouldn't be enforced really goes to show that for some, when talking about gun control the aim is really just to disarm those who they dislike for political and cultural reasons. If gun violence was the actual motivation for the people pushing "assault weapon" bans, enforcing existing laws regarding felon possession should be the lowest of low hanging fruit. And unlike law abiding citizens who legally own guns, felons have already proven that they should not freely be able to do so.
If you support gun control, and also support enforcing existing laws, then while I disagree with your views, at least you're consistent and honest, and I can respect you for that and we can have an actual conversation.
Right, I think in general it's more productive to stress the policy disagreement. There are already enough loud fantasies online about how the other side in politics wants to get me killed, etc.
I think this is pretty uncharitable. Many left-wing critics of the criminal justice system don't like gun possession crimes because they harshly punish people for minimally culpable conduct. People who carry guns often carry them for self-defense (and often in circumstances where they cannot rely on police protection) and without any intent to initiate violence. That's true for convicted felons too, who are particularly likely to live in high-violence places and who may be at higher risk because of previous associations.
"But what about gun control?" It depends--many people who have the kind of view I'm describing are not gun control enthusiasts! Public defenders in NYC filed an amicus brief in support of the challenge to NY's gun laws in Bruen. The left is not a monolith and people who are very strong skeptics of police and prosecutors tend also to be more skeptical of gun control. But also, of course, there is more than one way to do gun control, and one way to do it without criminalizing people for minimally culpable conduct is to cut off the supply of guns by expanding restrictions on and civil liability for gun manufacturers and retailers. There is an active intra-left discourse about these issues.
But it's not gun violence in general that gun control advocates are principally motivated by, it's mass casualty incidents in particular, which are popularly conceived as being committed with "assault weapons." Also, wanting to disarm someone as a punishment doesn't really make sense from within the liberal worldview. Like, the idea that owning guns is something that some people really value and would feel harmed to be deprived of is fundamentally alien to most liberals (for instance, recall this slow boring article https://www.slowboring.com/p/national-democrats-misguided-re-embrace)
"Like, the idea that owning guns is something that some people really value and would feel harmed to be deprived of is fundamentally alien to most liberals"
Do you really think liberals, or anyone, are unaware that there are a lot of people in America who really like and value guns?
While many liberals may think the way you describe, at the same time, they know very well that there are others that do see having their guns taken away as a punishment (not to mention an imposition of tyranny). I have spent a lot of time in *very* left wing spaces (a college with a very liberal student body, growing up in the SF Bay Area) and know firsthand that for some the idea of pissing off the rubes is a huge bonus. It's fundamentally the same underlying psychology as the conservative impulse to "own the libs". Man is flawed and our current political atmosphere unfortunately exacerbates this.
People who want a lot of restrictions on gun sales from FFL dealers don't live in gang territory. They don't know about gang violence and how minors are affected.
I think a lot of people want bans on handguns too, but no, that's even more politically dead in the water than the mild restrictions they're currently pushing.
I would add that the rural/urban split plays a role in this too, because more liberals live in cities and there is arguably less need to own guns there. But I grew up in the middle of nowhere, and many people owned long guns to deal with hostile animals and because there were NO cops anywhere around.
I'm probably one of the most anti-gun people here, as in, I'd be perfectly OK with pretty harsh treatment of current gun owners to lower the guns in circulation, but even I'm perfectly OK with ownership of long guns in very rural areas, both for safety and dealing with varmints.
The issue is a lot of gun owners turn around and try to treat their exurban community that hasn't had any violent crime outside of domestic disputes in years as the same as the middle of Montana or whatever.
If you have an Applebee's or Chik-Fil-A within 10 minutes driving of your home, you're not the same as a rancher in Wyoming.
Yeah, I've come to the sad conclusion that mass shootings are a twisted cultural meme much like serial killings in the 70s, and that there's little to nothing we can do until it dies out on its own, aside from things like hardening schools to the extent reasonable, sad as it is that it has to come to this.
Not sure this is a fair assessment. I think you are implying that progressives are interested in gun control only when it affects white, middle class, conservatives. But progressives don’t have some affinity for urban, gang, and drug selling culture while despising the Cracker Barrel set. I think there may be two counterbalancing pressures. I think progressives understand that access to guns in certain areas of the city is a huge problem but believe that systemic racism in society and the judicial system outweighs that concern to an extent. It is easier to focus on the lone wolf who takes his assault rifle into a school than on the more complicated issue of who to charge when five young people are caught with an illegal gun in the trunk.
"But progressives don’t have some affinity for urban, gang, and drug selling culture while despising the Cracker Barrel set."
They don't have an *affinity* for that culture, no, but many progressives sure do make a lot of excuses for it. More generally, these progressives see urban blacks as the ingroup that must be protected and rural whites as the intrinsically evil outgroup, and this ends up extending to their views on law and justice. The events of the summer of 2020 made that very clear, for example that awful letter from those 1000+ "public health experts".
True, but incoherent. This "protection" is of the criminal minority of urban blacks making life hell for the law-abiding majority of urban blacks! In other words, this is not a real "pro-black" position at all.
Again, depending on the city, much of the law-abiding majority of urban blacks seem OK with laws that hew closer to protecting the "criminal minority" than this community wants.
Intrinsically evil? I guess some do, but certainly not much different than what rural conservatives think about coastal “elites”. Sometimes the simplest explanations are the best—progressives believe black people have faced more barriers, for example due to systemic racism, than suburban and rural whites which makes them more sympathetic (more sympathetic than some might think is warranted, not that they are inherently “better” than the average rural person).
Combine this with the fact that the strongest barrier to new gun control measures comes from conservatives, and you have a recipe for less focus on illegal guns in the city. I think they should redirect some of their focus, but I am loth to assume the motives you attribute.
I'm not inclined to read into their motivations as much as Wendigo is, but I will note that it seems backward to want to control behavior of people who live further away from you more than you want to control the behavior of people close to you...and yet, for so much of the culture war, that is what people want to do.
As I mentioned above, I'm not inclined to delve into their motivations, but more the consequences of their actions. Looking at that, the majority of the judges, prosecutors, and public defenders discussed in this article, are likely strongly in favor of national gun control. This would criminalize behavior all over the country! And yet, when they have the opportunity to enforce the local gun control laws, they choose not to do so.
As for applying the law differently because of race, I think there is a term for that...
But there is more focus on illegal guns in the city, not less. NYC, DC, and Chicago long had some of the harshest and most restrictive gun laws in the country. Those laws are still enforced (though the Supreme Court has repeatedly weakened them). The whole premise here is bizarre. Nobody wants to let off convicted felons who own guns who live in urban centers, but not non-felons who own guns who live in rural areas.
"Nobody wants to let off convicted felons who own guns who live in urban centers, but not non-felons who own guns who live in rural areas."
But they want to simultaneously enact restrictions on legal gun ownership (non-felons) while not prosecuting illegal gun ownership.
And it just so happens that the former negatively affects a lot members of the conservatives coalition, and the latter avoids negatively affecting members of the liberal coalition.
It's a logically tortured position to hold in the first place, and the rationale for why it is nevertheless held is obvious.
Except not prosecuting *does* negatively affect a core coalition group as I pointed above. Victims of crime far outnumber the perpetrators, and the deterioration of cities will affect democratic voters far more than anyone else.
Before Heller and McDonald, DC and Chicago flatly banned owning handguns. So someone who supported those laws thinking that there should be a wider ban on handgun ownership is not being inconsistent. The question of enforcement mechanisms is separate; there are plenty of laws that mostly go unenforced as a matter of discretion or because costs are too high. There's a kind of theoretical problem there but it's a routine feature of law enforcement not limited to guns.
But because they don't like guns they are totally comfortable with a huge tangential legal crackdown on the cracker barrel people if it will even marginally impact the number of guns available in urban areas instead of actually enforcing against people who commit violence.
I don't know what this means, really. MY is trying to change the focus--at least at this time--from just talking about new gun control legislation to talking about needing better enforcement of current laws, and specifically those laws in DC. I tend to agree with him on this. Yes, there are people who want to see way fewer legal guns everywhere, but that is an argument in a different thread for a different article.
And I'm saying the reason for the bad enforcement is that the focus is on enforcing bad laws. When the statutes are constitutionally infirm trash you're not gonna have good enforcement and you need to either replace them with better laws or target your enforcement to more sound ones.
You seriously don't think, "We shouldn't be sending these people to jail we should just get rid of the guns." is a commonly held view?
Edit: Maybe you mean the "people who commit violence" part. We use these pretextual possessory crimes in lieu of actually meaningfully pursuing shooters because it's it's a politically convenient way to be seen to be "doing something!" without having to actually make a case for spending more resources.
I mean, the whole problem here is we have a bunch of laws on the books that don't get enforced because fucking of course we're not gonna send everyone who breaks them to prison. That would be psychotic. Instead we all get to live in this world Matt describes of Schrödinger’s felonies where going to jail mostly comes down to whether the cops think you look like someone who belongs in jail.
I agree, but I find the focus on school shootings frustrating. I always worry about summer because that is when youth in my city get shot. (Our last day of school was Friday, and there were two gun fatalities on Sunday in my city of 100,000.) I am not really worried about a school shooting in my kids' school, even though there are violent incidents there. I feel like crying when people put all their focus on school shootings, especially because I feel like these weird and random shootings are harder to solve than the ones that happen every day out on the sidewalk. It's like the kids who get shot in my city don't matter because they aren't young and cute.
Agree, and I get into lively discussions with liberal friends who have not spent real time with gun homicide datasets. They are worked up about horrible school shootings, but then connect that to a "guns are the leading killer of children" meme that is actually about teenage gang violence.
And they are afraid of big Rambo rifles when most people are killed with handguns.
There's probably someone, somewhere, who believes that conservatives with legal AR-15s should go to jail and inner city criminals with illegal guns shouldn't. But I would be extremely surprised if this were anything close to a majority of progressives.
See also: "You say that people shouldn't go to jail for saying Hitler was right, but you also shouted 'boo' when someone proposed raising taxes by 0.1%. Why are you softer on Nazis than on the center-left?"
These deep dives into the weeds are helpful because much discussion just focuses on "what are the laws" without examining these challenges in how they get enforced.
But I do want to put in a word of sympathy for young men catching a ride where someone just happens to have an illegal gun in the trunk. That kind of "sweeping up everyone near a bad guy" really is questionable policing and public policy... And I say that as someone who wants laws to be enforced to keep our cities safe.
Seems like the owner of the car should be the default responsible party if the gun is in the trunk. If it’s not his, he should testify as to whose it is.
Some guy smashed my parked truck with his bigger truck and just drove off. A bystander saw it, photographed the plates, and showed them to me. Police wouldn't arrest the registered owner of the vehicle because the witness didn't see the driver.
I mean, we've decided that criminal penalties are harsh, so we prefer type II errors to type I errors.. In fact, if no one saw who was driving you don't really know who was driving.
We have looser standards for civil laws and litigation. In a lot of places (e.g. NY) the owner of the car is strictly liable for the negligence of anyone driving their car and you only need to establish it through a preponderance of the evidence.
I think arresting the person is going too far because you can't prove they were driving (joyriding?) but sure feels like you should be able to get civil compensation (your registered car damaged my registered car)
That's my point, you can, just sue them. And, like I said, many jurisdictions make thr owner of the vehicle vicariously liable for whomever was driving. In the context of a minor auto accident, usually you don't even sue them, you submit it to your insurance and they arbitrate with the insurer of the other vehicle.
The police are not really involved in civil compensation.
I don't know if this is what proof means in a criminal context (proof beyond a reasonable doubt). People get convicted of crimes all the time in cases where there was an alternative explanation for events, if that other explanation simply isn't credible.
For example, if someone stole your car for a joyride but you never reported it stolen or have any other evidence that the theft happened, then I probably don't believe that story. The classic line is that we'd rather have ten criminals go free than imprison one innocent man, not that we'd let a thousand criminals go free to avoid the possibility that some innocent might get fucked by extremely unlucky circumstances.
We will never have an answer to this in the prospective sense because people change their behavior to account for how rules are enforced.
It matters if people know that if there are two of us in the car and we put it in the trunk the result is a magic trick of non-enforcement. I’ve never accepted the string case for deterrence, but on the margins there is some influence, which does change the behavior of cops and criminals. The question you’re asking has very different implications in a society where it is generally known to be true.
As a criminal defense lawyer, the Schrödinger's gun argument just doesn't compute for me. Obviously an illegal gun can't lead to a conviction when it isn't possessed by anyone beyond a reasonable doubt.
I also think Matt is pretty cavalier on what criminal convictions actually mean for defendants. Prison is genuinely miserable. Presumably Matt knows that--like most white-collar professionals, if he were ever charged with a crime, he would probably bankrupt himself to try to minimize his time. How would he like to be locked up on stretch facts?
Matt gets the holding of the T.W. case wrong, because he gets the issue wrong. Matt says: "The trial judge ruled that this was a valid search, and the jury convicted. But the appeals court reversed and held that these police pressure tactics constituted an illegal search."
But the defendant did not challenge the legality of the search (ie, the frisk). He challenged the legality of the stop, and the issue in the case was whether the stop constituted a "seizure." From the first paragraph of the opinion: " The government concedes that, if officers did in fact seize T.W. before he consented to a pat-down search, the seizure was unlawful, the motion to suppress should have
been granted, and we must reverse T.W.’s convictions. It contends only that T.W. was not in fact seized when he consented to a search." And, to clarify, it later says: "The government does not contend
that officers had a lawful basis for seizing T.W. before discovering the gun"
This issue of whether a seizure has occurred is very fact-specific, and so it is unlikely to have much effect on police practices. The fact-specific nature of these cases also makes it unsurprising that the case did not get much publicity.
Note also that a "seizure" takes place whenever “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court relied on the following facts in finding that he was seized: "(1) T.W. was the only person in the area; (2) two marked police vehicles, with at least three armed and uniformed officers in
each, quickly pulled into an alley after T.W.; (3) the officers positioned their vehicles in a manner that boxed T.W. in, cutting off his two most obvious escape paths and signaling that he was not free to leave; (4) the two officers who exited the front vehicle approached T.W. from both sides, further obstructing his potential exits, a third officer had exited the rear vehicle, and a fourth had their door open (though it is unclear from the video footage if they had fully exited the car at the time T.W.
consented to a search), so that four officers were approaching T.W. before T.W. agreed to be searched; (5) the officers asked T.W. only accusatory questions, all suggesting they believed he had a gun on him; and (6) although T.W. twice denied having a gun, the officers did not accept his answer and instead asked if they could search him “just to make sure,” manifesting their disbelief in T.W. and suggesting they were not going to let him walk away unless he could alleviate those suspicions."
Matt has an idiosyncratic dislike for lawyers and judges, but he consistently gets legal stuff wrong. Almost as if there is actual expertise involved. If he had asked a lawyer, they would have told them that this case is completely unremarkable. In fact, I'm not sure what could have brought it to his attention.
Fascinating, thanks for sharing! I haven't read the papers on this, but do you happen to know why the government apparently conceded that there wasn't a basis for even a reasonable suspicion Terry Stop? "Suspicious dude who looks like he's engaging in criminal activity is in fact engaging in exactly said criminal activity" sort of the ur-example of justified stops, and sending six officers in two cars after a guy in an alley seems like rather heavy-handed approach for cops lacking even reasonable suspicion, even if you were to assume they're engaging in rampant casual profiling.
1. The fact that he was "in fact engaging in exactly said criminal activity" is irrelevant Lee v. United States, 232 F. 2d 354, 356 (DC Cir. 1956) ["of course the search cannot be justified by what it turned up. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520."]
2. The facts mentioned in the appellate decision are :
"As they approached an apartment building at 2348 Ainger Place SE, [at 5:30 pm in March]Gendelman saw somebody, later identified as T.W., “pop out” of a side alley connecting the apartment building’s parking lot to the street. T.W. seemed to notice the approaching police vehicles before he walked back into the alley toward the apartment building’s nearby entrance. Gendelman found T.W.’s conduct suspicious, and the vehicle’s driver sped up and then turned into the alley after T.W. As the officers pulled up, T.W. was in front of the steps leading to the apartment building’s entrance, set back several feet from the alley."
That isn't close to being reasonable suspicion for a stop. And a cop being suspicious is not relevant; there must be ""specific and articulable facts" that would cause a reasonable person to suspect that crime was afoot; "'[A]n inchoate and unparticularized suspicion or hunch' cannot support reasonable suspicion" United States v. Hawkins, 37 F. 4th 854, 857-858 (2nd Cir. 2022).
TL;DR You can't have "reasonable suspicion" if you don't have a reason to believe a crime has occurred, no matter how "suspicious" the person may appear to act.
I read what you wrote and just think lawyers are getting a lot of people killed. How do you expect illegally possessed weapons to be confiscated if every search and seizure is inspected to that degree? How would anyone function in any job if there were a dozen veto points for every step? The answer is we can't. These kinds of lawyerly veto points harm delay or derail every government project, every new housing development, every other criminal charge.
All I can say in response is to quote Justice Scalia in the oral arguments in Maryland v. King:
Katherine Winfree: Mr. Chief Justice, and may it please the Court: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.
Justice Antonin Scalia: Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. [Laughter] That proves absolutely nothing.
So, your grievance is not with lawyers; it is with the Constitution.
I mean, if you zoom out and look at the whole world over let's just say the last 120 years- the threat to regular people from the state security services of authoritarian governments is so, so much bigger than random criminals. How many countries have actually collapsed into criminal anarchy, really? Versus, let's look back through the 20th century and say, in how many countries is the armed wing of the government oppressing people by far the bigger concern? Like the ledger isn't even close man. The death toll certainly isn't close!
Many people who want to do violence on behalf of the state are fundamentally bad people, they took positions of power so that they can do bad things, and a liberal democracy should operate with a fundamental amount of skepticism of them
It takes so many leaps of logic and assumptions just to get anywhere close to connecting what you just wrote to what I said in the previous comment. In the realm of protections from police procedural abuses, we have 10x the protections of any government in Western Europe. Relaxing them a bit is not a slippery slope to Stalinist Russia or Pol Pot, but cities like Washington DC are close to El Salvador or Jamaica in terms of murder rate.
The great thing about having a constitution with an enumerated bill of rights is that 'relaxing them a bit' (which will totally go great this time around! promise!) is luckily not an option that's available to you
Again, leaps of logic and many assumptions on your part are required to connect what you just wrote to what I had written. You seem to want to argue against positions I don't even have, good luck with that
Yes, the leaps of logic and many assumptions like (checks notes) quoting what you yourself write 12 hours ago:
'if every search and seizure is inspected to that degree....These kinds of lawyerly veto points'
A bit of reading comprehension shows that you were responding to someone (who I assume is an actual attorney) explaining why this search was thrown out- that the police may not arbitrarily stop & search a group of young men simply because they feel like it
Having strict gun laws that are weakly enforced is a recipe for an "only the criminals have guns" outcome. If I wanted to get a gun, I'd want to do it legally, since the risk of even being arrested for it makes the whole thing not worth it, even if I ultimately don't get convicted. But for a criminal the low risk of conviction makes having a gun much more attractive, since part of their "job" is interacting with the criminal justice system anyway.
Is it better if law-abiding people don't have guns when the criminals do? Probably, because any reduction in guns decreases deaths from guns. But I can see how this can make law-abiding people uncomfortable.
For those of us who don't live in Washington, D.C. -- most of us, I suspect -- this is more of a learning opportunity than anything else. For law-and-order liberals like me, I wish nothing but the best for Matt and others of like mind in their push for a safer city.
Mostly, this article reminded me D.C. is a small and unique place -- the data point about how San Francisco supported Trump twice as much as D.C. is amazing.
Yeah, I live right across the river in Arlington - a very liberal city with a progressive prosecutor who I'm not a fan of. But whenever I cross into DC it strikes me that it really is a world apart.
I got caught in the middle of Dupont Circle's pride. So many teenagers fighting, jumping turnstiles, smoking huge blunts, and carrying liquor bottles in the open. It was anarchy. I am too old for that much stimulation.
Oh ya and the worst part, some people subjected their poor dogs to all that.
The subtext of this piece that we should dial down civil liberties to a point where we get more gun convictions seems bad. “Schrödinger’s Gun” is a well understood consequence of the fact that our standard of proof is substantially higher than “50% likelihood” so it’s not enough to just limit things to two suspects. Public defenders being as skilled and able to devote as much time as prosecutors is a (rarely practiced) underlying assumption of the adversarial legal system. For wherever you draw the line for the fourth amendment, it’s absolutely crucial that violations disqualify any evidence collected when the line is crossed. Juries are as validly democratic governance as anything else.
There are a lot of dials you can turn for 100% conviction rate on crimes, but there are also reasons that we put the bar for convictions so high, and this post didn’t really grapple with those.
This reminds me of the complaint about sexual assaults not being prosecuted. Its not (or least not just) a patrearchal conspiracy, acquaintance rape is very hard to prove b/c the physical evidence is often similar or identical to consensual sex, which has also been known to occur. Usually the only way tell them apart is testimony of the people involved, which tends to be contradictory, and therefore create reasonable doubt.
We could lower the standard for sexual assault convictions, but then we'd be risking more Type I errors, which the criminal justice system is very much designed to avoid.
The same goes for a lot of"white collar" crime, where we want intent to be a required element (math errors on tax returns should be treated differently than lying on your tax return), but intent is necessarily hard to prove.
OTOH, if you have a dead body with a bullet hole in it, it's usually just a question of figuring out who pulled the trigger.
One of my greatest frustrations with the current left Discourse is the common and frankly lazy refrain that obviously blue-collar crimes like "I stuck a knife in your face and demanded money and it's on tape" are designed to be easier to convict than "fudged stuff on my taxes" crimes.
As if this somehow proves that The Man and The Elite are somehow rigging the system nefariously for their own ends, rather than the fact that sticking a knife in somebody's face is prima facie not okay and sort of embeds the question of intent in the act itself.
It's hard to prosecute white-collar crime because the facts are usually very complex and expertise-intensive, and thus expensive to prosecute, and because the crimes often border on perfectly legal business practices. Those things aren't really in the courts' or prosecutors' control. The courts could be less concerned with protecting ordinary business from criminal liability, but I think that criticism is awfully cavalier with the actual reality of what a criminal prosecution means for a defendant's life.
I disagree that the exclusionary rule is essential to keeping strong fourth amendment protections. In fact it is a lousy mechanism that only very weakly sanctions cops and very strongly rewards actually guilty people.
We should fine or fire cops who do illegal searches, not destroy good evidence.
Yes! This! US goes too far with the "fruit of the poisonous tree" doctrine and way too little to hold cops personally accountable for fuck ups (or worse).
I mean the monkey's paw curling here is that if cops can get fired for any search deemed unconstitutional they are going to stop doing any kind of search or seizure that isn't signed off by a judge, which could have a lot of consequences.
The point is there needs to be a more effective way to motivate them to follow the law. Not every democracy go so far with inadmissibility like the us and they still maintain rule of law and due process.
One problem is that, historically, that worked better in theory than in practice. The Supreme Court first applied the exclusionary rule to federal, but not state, prosecutions in 1914 in Weeks v. United States. When the Court finally extended the exclusionary rule to to state prosecutions in 1964 in Mapp v. Ohio, part of the rationale was:
"Significantly, among those now following the rule is California, which, according to its highest court, was "compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions . . . ." People v. Cahan, 44 Cal. 2d 434, 445, 282 P. 2d 905, 911 (1955). In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary doctrine against the States was that "other means of protection" have been afforded "the right to privacy."[7] 338 U. S., at 30. The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment to the protection of other remedies has, moreover, been recognized by this Court since Wolf. See Irvine v. California, 347 U. S. 128, 137 (1954).",
Note also that this law review article https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3743&context=articles (written, fwiw, by a big name in the criminal procedure field) quotes an NYPD Dep Commissioner as saying: "Before [Mapp], nobody bothered to take out search warrants. [Before Mapp] the U.S. Supreme Court had ruled that evidence obtained without a warrant-illegally if you will-was admissible in state courts. So the feeling was, why bother?"
Relatively minor point of order with respect to your overall comment, but I don't think that "public defenders being as skilled and able to devote as much time as prosecutors is a (rarely practiced) underlying assumption of the adversarial legal system" -- in particular, the right to a public defender in state criminal trials only dates to 1963 (Gideon v. Wainwright), which far postdates the basic outlines of criminal prosecution in American law. Given the relatively late date of the incorporation of the right to counsel (viz., appointment of a public defender) against the states, combined with the well-known (and generally accepted / considered good) selection effect whereby prosecutors bring the cases they think they're most likely to win, it seems that an assumption of parity between prosecution and defense resources isn't necessarily implicit in the structure of American criminal trials.
The idea of enforcing or, even worse, creating other crimes to create an excuse to search people for guns makes me queezy. At the very least, it seems to violate the spirit of the law. It also results in a system of overcriminalization
The point of the 4th Amendment is that the government shouldn't go looking for a reason to arrest someone, and certainly shouldn't search someone without a reason to think they have evidence of a particular crime on them. The fear is that, absent that protection, the government will start searching people or groups of people to harass them. There ste obviously trade offs to that, it's easier to get away with crimes if the police can't search you at will, but that's the trade off we've made via the 4th Amendment. If you want to change that change it, don't come up with a wierd work-around.
It also results in overcriminization. I've heard people arguing that pot should stay illegal because the smell of pot provides cops with an excuse to search people for evidence of other crimes. Thet is doubly bad. Not only have those cops violated the purpose of the 4th Amendment, but in order to allow them to do so, we've limited the liberty of people to smoke pot if they want to.
"The idea of enforcing or, even worse, creating other crimes"
I'm with you that we shouldn't create other crimes, and we should think twice about the crimes we do start enforcing more stringently but enforcing fare evasion seems reasonable on its own.
It's reasonable on its own, but should it them be an excuse to pat the person down looking for other crimes? Is that actually necessary for enforcing laws against fare evasion, or is it just a pretext?
Also, if it looks like enforcing laws against fare evasion is just a pretext to search and harass people (especially if not done evenly), it undermines the the legitimacy of a legitimate law.
I think the law should have some legitimate benefit that we actually care about. So regardless of whether your search finds something, you need to pursue the fare evasion you searched them for.
I agree that even if it's not pure pretext it has some worrying implications and _could_ lead to a slippery slope of adding more and more infractions for this - I just don't think fare evasion or illegal tags (especially because illegal tags aid in the commission/evasion of enforcement for other crimes) fall there.
It stops being a pretext when someone has broken the law within sight of a police officer. At that point it's highly reasonable to assume they might be breaking other laws too, and should be searched.
The way the 4A works is you don't just get to search someone because you have a vague notion they may have committed a crime. Generally, you need a particular crime and a reason to think you will find a particular thing when you search them. Usually you also need a warrant.
There are some exceptions to this. The one at issue here is that police can do a search incident to arrest to make sure the person doesn't have a weapon that they can use to resist arrest - basically you dont want the guy in the hakc of the police car or jail cell pulling out a gun. But it's a very limited exception. It doesn't mean that you get to go search their house for evidence of other crimes. If they had a bag with them, but that bag is more than a few feet away when you are arresting them, you don't even get to search the bag. This is because the purpose is safety, not to go fishing for evidence, and a gun in their house, or in a bag they left down the hall because there is no safety justification.
Technically searching someone you are arresting for a turnstile jump doesn't get you this safety search, but if you are arresting them ~so that you can search them~ it really is the tail wagging the dog.
All this talk from progressives about how felon possession laws shouldn't be enforced really goes to show that for some, when talking about gun control the aim is really just to disarm those who they dislike for political and cultural reasons. If gun violence was the actual motivation for the people pushing "assault weapon" bans, enforcing existing laws regarding felon possession should be the lowest of low hanging fruit. And unlike law abiding citizens who legally own guns, felons have already proven that they should not freely be able to do so.
If you support gun control, and also support enforcing existing laws, then while I disagree with your views, at least you're consistent and honest, and I can respect you for that and we can have an actual conversation.
I am going to say this is an unfair assessment because people often hold contradictory and poorly reasoned beliefs simultaneously.
Right, I think in general it's more productive to stress the policy disagreement. There are already enough loud fantasies online about how the other side in politics wants to get me killed, etc.
We need a reverse Zardoz.
No, the penis is not good.
I think this is pretty uncharitable. Many left-wing critics of the criminal justice system don't like gun possession crimes because they harshly punish people for minimally culpable conduct. People who carry guns often carry them for self-defense (and often in circumstances where they cannot rely on police protection) and without any intent to initiate violence. That's true for convicted felons too, who are particularly likely to live in high-violence places and who may be at higher risk because of previous associations.
"But what about gun control?" It depends--many people who have the kind of view I'm describing are not gun control enthusiasts! Public defenders in NYC filed an amicus brief in support of the challenge to NY's gun laws in Bruen. The left is not a monolith and people who are very strong skeptics of police and prosecutors tend also to be more skeptical of gun control. But also, of course, there is more than one way to do gun control, and one way to do it without criminalizing people for minimally culpable conduct is to cut off the supply of guns by expanding restrictions on and civil liability for gun manufacturers and retailers. There is an active intra-left discourse about these issues.
But it's not gun violence in general that gun control advocates are principally motivated by, it's mass casualty incidents in particular, which are popularly conceived as being committed with "assault weapons." Also, wanting to disarm someone as a punishment doesn't really make sense from within the liberal worldview. Like, the idea that owning guns is something that some people really value and would feel harmed to be deprived of is fundamentally alien to most liberals (for instance, recall this slow boring article https://www.slowboring.com/p/national-democrats-misguided-re-embrace)
"Like, the idea that owning guns is something that some people really value and would feel harmed to be deprived of is fundamentally alien to most liberals"
Do you really think liberals, or anyone, are unaware that there are a lot of people in America who really like and value guns?
Hatred of the outgroup, as described in the article I link here, is a very powerful force in American politics. https://slatestarcodex.com/2014/09/30/i-can-tolerate-anything-except-the-outgroup/
While many liberals may think the way you describe, at the same time, they know very well that there are others that do see having their guns taken away as a punishment (not to mention an imposition of tyranny). I have spent a lot of time in *very* left wing spaces (a college with a very liberal student body, growing up in the SF Bay Area) and know firsthand that for some the idea of pissing off the rubes is a huge bonus. It's fundamentally the same underlying psychology as the conservative impulse to "own the libs". Man is flawed and our current political atmosphere unfortunately exacerbates this.
Eh, I think some groups like to bond over the idea they are hated by others.
This is always weird to me because the vast majority of under-18 gun deaths are due to handguns and not mass shootings.
People who want a lot of restrictions on gun sales from FFL dealers don't live in gang territory. They don't know about gang violence and how minors are affected.
I think a lot of people want bans on handguns too, but no, that's even more politically dead in the water than the mild restrictions they're currently pushing.
I would add that the rural/urban split plays a role in this too, because more liberals live in cities and there is arguably less need to own guns there. But I grew up in the middle of nowhere, and many people owned long guns to deal with hostile animals and because there were NO cops anywhere around.
I'm probably one of the most anti-gun people here, as in, I'd be perfectly OK with pretty harsh treatment of current gun owners to lower the guns in circulation, but even I'm perfectly OK with ownership of long guns in very rural areas, both for safety and dealing with varmints.
The issue is a lot of gun owners turn around and try to treat their exurban community that hasn't had any violent crime outside of domestic disputes in years as the same as the middle of Montana or whatever.
If you have an Applebee's or Chik-Fil-A within 10 minutes driving of your home, you're not the same as a rancher in Wyoming.
Yeah, I've come to the sad conclusion that mass shootings are a twisted cultural meme much like serial killings in the 70s, and that there's little to nothing we can do until it dies out on its own, aside from things like hardening schools to the extent reasonable, sad as it is that it has to come to this.
Not sure this is a fair assessment. I think you are implying that progressives are interested in gun control only when it affects white, middle class, conservatives. But progressives don’t have some affinity for urban, gang, and drug selling culture while despising the Cracker Barrel set. I think there may be two counterbalancing pressures. I think progressives understand that access to guns in certain areas of the city is a huge problem but believe that systemic racism in society and the judicial system outweighs that concern to an extent. It is easier to focus on the lone wolf who takes his assault rifle into a school than on the more complicated issue of who to charge when five young people are caught with an illegal gun in the trunk.
"But progressives don’t have some affinity for urban, gang, and drug selling culture while despising the Cracker Barrel set."
They don't have an *affinity* for that culture, no, but many progressives sure do make a lot of excuses for it. More generally, these progressives see urban blacks as the ingroup that must be protected and rural whites as the intrinsically evil outgroup, and this ends up extending to their views on law and justice. The events of the summer of 2020 made that very clear, for example that awful letter from those 1000+ "public health experts".
True, but incoherent. This "protection" is of the criminal minority of urban blacks making life hell for the law-abiding majority of urban blacks! In other words, this is not a real "pro-black" position at all.
Again, depending on the city, much of the law-abiding majority of urban blacks seem OK with laws that hew closer to protecting the "criminal minority" than this community wants.
Intrinsically evil? I guess some do, but certainly not much different than what rural conservatives think about coastal “elites”. Sometimes the simplest explanations are the best—progressives believe black people have faced more barriers, for example due to systemic racism, than suburban and rural whites which makes them more sympathetic (more sympathetic than some might think is warranted, not that they are inherently “better” than the average rural person).
Combine this with the fact that the strongest barrier to new gun control measures comes from conservatives, and you have a recipe for less focus on illegal guns in the city. I think they should redirect some of their focus, but I am loth to assume the motives you attribute.
I'm not inclined to read into their motivations as much as Wendigo is, but I will note that it seems backward to want to control behavior of people who live further away from you more than you want to control the behavior of people close to you...and yet, for so much of the culture war, that is what people want to do.
Do you think the reason DC doesn’t enforce local gun laws is because they focus on controlling them far away?
As I mentioned above, I'm not inclined to delve into their motivations, but more the consequences of their actions. Looking at that, the majority of the judges, prosecutors, and public defenders discussed in this article, are likely strongly in favor of national gun control. This would criminalize behavior all over the country! And yet, when they have the opportunity to enforce the local gun control laws, they choose not to do so.
As for applying the law differently because of race, I think there is a term for that...
But there is more focus on illegal guns in the city, not less. NYC, DC, and Chicago long had some of the harshest and most restrictive gun laws in the country. Those laws are still enforced (though the Supreme Court has repeatedly weakened them). The whole premise here is bizarre. Nobody wants to let off convicted felons who own guns who live in urban centers, but not non-felons who own guns who live in rural areas.
"Nobody wants to let off convicted felons who own guns who live in urban centers, but not non-felons who own guns who live in rural areas."
But they want to simultaneously enact restrictions on legal gun ownership (non-felons) while not prosecuting illegal gun ownership.
And it just so happens that the former negatively affects a lot members of the conservatives coalition, and the latter avoids negatively affecting members of the liberal coalition.
It's a logically tortured position to hold in the first place, and the rationale for why it is nevertheless held is obvious.
Except not prosecuting *does* negatively affect a core coalition group as I pointed above. Victims of crime far outnumber the perpetrators, and the deterioration of cities will affect democratic voters far more than anyone else.
Before Heller and McDonald, DC and Chicago flatly banned owning handguns. So someone who supported those laws thinking that there should be a wider ban on handgun ownership is not being inconsistent. The question of enforcement mechanisms is separate; there are plenty of laws that mostly go unenforced as a matter of discretion or because costs are too high. There's a kind of theoretical problem there but it's a routine feature of law enforcement not limited to guns.
But because they don't like guns they are totally comfortable with a huge tangential legal crackdown on the cracker barrel people if it will even marginally impact the number of guns available in urban areas instead of actually enforcing against people who commit violence.
I don't know what this means, really. MY is trying to change the focus--at least at this time--from just talking about new gun control legislation to talking about needing better enforcement of current laws, and specifically those laws in DC. I tend to agree with him on this. Yes, there are people who want to see way fewer legal guns everywhere, but that is an argument in a different thread for a different article.
And I'm saying the reason for the bad enforcement is that the focus is on enforcing bad laws. When the statutes are constitutionally infirm trash you're not gonna have good enforcement and you need to either replace them with better laws or target your enforcement to more sound ones.
I don't think this is a real view that anybody holds.
You seriously don't think, "We shouldn't be sending these people to jail we should just get rid of the guns." is a commonly held view?
Edit: Maybe you mean the "people who commit violence" part. We use these pretextual possessory crimes in lieu of actually meaningfully pursuing shooters because it's it's a politically convenient way to be seen to be "doing something!" without having to actually make a case for spending more resources.
That's a real position. But it doesn't entail sending "cracker barrel people" to prison either.
I mean, the whole problem here is we have a bunch of laws on the books that don't get enforced because fucking of course we're not gonna send everyone who breaks them to prison. That would be psychotic. Instead we all get to live in this world Matt describes of Schrödinger’s felonies where going to jail mostly comes down to whether the cops think you look like someone who belongs in jail.
I agree, but I find the focus on school shootings frustrating. I always worry about summer because that is when youth in my city get shot. (Our last day of school was Friday, and there were two gun fatalities on Sunday in my city of 100,000.) I am not really worried about a school shooting in my kids' school, even though there are violent incidents there. I feel like crying when people put all their focus on school shootings, especially because I feel like these weird and random shootings are harder to solve than the ones that happen every day out on the sidewalk. It's like the kids who get shot in my city don't matter because they aren't young and cute.
Agree, and I get into lively discussions with liberal friends who have not spent real time with gun homicide datasets. They are worked up about horrible school shootings, but then connect that to a "guns are the leading killer of children" meme that is actually about teenage gang violence.
And they are afraid of big Rambo rifles when most people are killed with handguns.
There's probably someone, somewhere, who believes that conservatives with legal AR-15s should go to jail and inner city criminals with illegal guns shouldn't. But I would be extremely surprised if this were anything close to a majority of progressives.
See also: "You say that people shouldn't go to jail for saying Hitler was right, but you also shouted 'boo' when someone proposed raising taxes by 0.1%. Why are you softer on Nazis than on the center-left?"
These deep dives into the weeds are helpful because much discussion just focuses on "what are the laws" without examining these challenges in how they get enforced.
But I do want to put in a word of sympathy for young men catching a ride where someone just happens to have an illegal gun in the trunk. That kind of "sweeping up everyone near a bad guy" really is questionable policing and public policy... And I say that as someone who wants laws to be enforced to keep our cities safe.
Seems like the owner of the car should be the default responsible party if the gun is in the trunk. If it’s not his, he should testify as to whose it is.
Can only make him testify if he’s not a suspect. Or you can give him immunity and make him testify. That’s a prosecutorial choice.
Works for me
Doesn't surprise me at all.
Some guy smashed my parked truck with his bigger truck and just drove off. A bystander saw it, photographed the plates, and showed them to me. Police wouldn't arrest the registered owner of the vehicle because the witness didn't see the driver.
I mean, we've decided that criminal penalties are harsh, so we prefer type II errors to type I errors.. In fact, if no one saw who was driving you don't really know who was driving.
We have looser standards for civil laws and litigation. In a lot of places (e.g. NY) the owner of the car is strictly liable for the negligence of anyone driving their car and you only need to establish it through a preponderance of the evidence.
I think arresting the person is going too far because you can't prove they were driving (joyriding?) but sure feels like you should be able to get civil compensation (your registered car damaged my registered car)
That's my point, you can, just sue them. And, like I said, many jurisdictions make thr owner of the vehicle vicariously liable for whomever was driving. In the context of a minor auto accident, usually you don't even sue them, you submit it to your insurance and they arbitrate with the insurer of the other vehicle.
The police are not really involved in civil compensation.
I don't know if this is what proof means in a criminal context (proof beyond a reasonable doubt). People get convicted of crimes all the time in cases where there was an alternative explanation for events, if that other explanation simply isn't credible.
For example, if someone stole your car for a joyride but you never reported it stolen or have any other evidence that the theft happened, then I probably don't believe that story. The classic line is that we'd rather have ten criminals go free than imprison one innocent man, not that we'd let a thousand criminals go free to avoid the possibility that some innocent might get fucked by extremely unlucky circumstances.
Arrest the vehicle. Boot time. Civil asset forfeiture.
We will never have an answer to this in the prospective sense because people change their behavior to account for how rules are enforced.
It matters if people know that if there are two of us in the car and we put it in the trunk the result is a magic trick of non-enforcement. I’ve never accepted the string case for deterrence, but on the margins there is some influence, which does change the behavior of cops and criminals. The question you’re asking has very different implications in a society where it is generally known to be true.
It's also insane to think the driver with a pistol legally in his waistband is somehow guilty of a crime for the pistol in the trunk.
As a criminal defense lawyer, the Schrödinger's gun argument just doesn't compute for me. Obviously an illegal gun can't lead to a conviction when it isn't possessed by anyone beyond a reasonable doubt.
I also think Matt is pretty cavalier on what criminal convictions actually mean for defendants. Prison is genuinely miserable. Presumably Matt knows that--like most white-collar professionals, if he were ever charged with a crime, he would probably bankrupt himself to try to minimize his time. How would he like to be locked up on stretch facts?
Matt gets the holding of the T.W. case wrong, because he gets the issue wrong. Matt says: "The trial judge ruled that this was a valid search, and the jury convicted. But the appeals court reversed and held that these police pressure tactics constituted an illegal search."
But the defendant did not challenge the legality of the search (ie, the frisk). He challenged the legality of the stop, and the issue in the case was whether the stop constituted a "seizure." From the first paragraph of the opinion: " The government concedes that, if officers did in fact seize T.W. before he consented to a pat-down search, the seizure was unlawful, the motion to suppress should have
been granted, and we must reverse T.W.’s convictions. It contends only that T.W. was not in fact seized when he consented to a search." And, to clarify, it later says: "The government does not contend
that officers had a lawful basis for seizing T.W. before discovering the gun"
This issue of whether a seizure has occurred is very fact-specific, and so it is unlikely to have much effect on police practices. The fact-specific nature of these cases also makes it unsurprising that the case did not get much publicity.
Note also that a "seizure" takes place whenever “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court relied on the following facts in finding that he was seized: "(1) T.W. was the only person in the area; (2) two marked police vehicles, with at least three armed and uniformed officers in
each, quickly pulled into an alley after T.W.; (3) the officers positioned their vehicles in a manner that boxed T.W. in, cutting off his two most obvious escape paths and signaling that he was not free to leave; (4) the two officers who exited the front vehicle approached T.W. from both sides, further obstructing his potential exits, a third officer had exited the rear vehicle, and a fourth had their door open (though it is unclear from the video footage if they had fully exited the car at the time T.W.
consented to a search), so that four officers were approaching T.W. before T.W. agreed to be searched; (5) the officers asked T.W. only accusatory questions, all suggesting they believed he had a gun on him; and (6) although T.W. twice denied having a gun, the officers did not accept his answer and instead asked if they could search him “just to make sure,” manifesting their disbelief in T.W. and suggesting they were not going to let him walk away unless he could alleviate those suspicions."
Thanks for writing this up; you beat me to it. I feel Matt should print a correction; his characterization of this case is way off.
Matt has an idiosyncratic dislike for lawyers and judges, but he consistently gets legal stuff wrong. Almost as if there is actual expertise involved. If he had asked a lawyer, they would have told them that this case is completely unremarkable. In fact, I'm not sure what could have brought it to his attention.
Fascinating, thanks for sharing! I haven't read the papers on this, but do you happen to know why the government apparently conceded that there wasn't a basis for even a reasonable suspicion Terry Stop? "Suspicious dude who looks like he's engaging in criminal activity is in fact engaging in exactly said criminal activity" sort of the ur-example of justified stops, and sending six officers in two cars after a guy in an alley seems like rather heavy-handed approach for cops lacking even reasonable suspicion, even if you were to assume they're engaging in rampant casual profiling.
I don't know for sure. However:
1. The fact that he was "in fact engaging in exactly said criminal activity" is irrelevant Lee v. United States, 232 F. 2d 354, 356 (DC Cir. 1956) ["of course the search cannot be justified by what it turned up. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520."]
2. The facts mentioned in the appellate decision are :
"As they approached an apartment building at 2348 Ainger Place SE, [at 5:30 pm in March]Gendelman saw somebody, later identified as T.W., “pop out” of a side alley connecting the apartment building’s parking lot to the street. T.W. seemed to notice the approaching police vehicles before he walked back into the alley toward the apartment building’s nearby entrance. Gendelman found T.W.’s conduct suspicious, and the vehicle’s driver sped up and then turned into the alley after T.W. As the officers pulled up, T.W. was in front of the steps leading to the apartment building’s entrance, set back several feet from the alley."
That isn't close to being reasonable suspicion for a stop. And a cop being suspicious is not relevant; there must be ""specific and articulable facts" that would cause a reasonable person to suspect that crime was afoot; "'[A]n inchoate and unparticularized suspicion or hunch' cannot support reasonable suspicion" United States v. Hawkins, 37 F. 4th 854, 857-858 (2nd Cir. 2022).
TL;DR You can't have "reasonable suspicion" if you don't have a reason to believe a crime has occurred, no matter how "suspicious" the person may appear to act.
Dang it, beat me again!
I read what you wrote and just think lawyers are getting a lot of people killed. How do you expect illegally possessed weapons to be confiscated if every search and seizure is inspected to that degree? How would anyone function in any job if there were a dozen veto points for every step? The answer is we can't. These kinds of lawyerly veto points harm delay or derail every government project, every new housing development, every other criminal charge.
All I can say in response is to quote Justice Scalia in the oral arguments in Maryland v. King:
Katherine Winfree: Mr. Chief Justice, and may it please the Court: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.
Justice Antonin Scalia: Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. [Laughter] That proves absolutely nothing.
So, your grievance is not with lawyers; it is with the Constitution.
Translation, 'I like authoritarianism'.
I mean, if you zoom out and look at the whole world over let's just say the last 120 years- the threat to regular people from the state security services of authoritarian governments is so, so much bigger than random criminals. How many countries have actually collapsed into criminal anarchy, really? Versus, let's look back through the 20th century and say, in how many countries is the armed wing of the government oppressing people by far the bigger concern? Like the ledger isn't even close man. The death toll certainly isn't close!
Many people who want to do violence on behalf of the state are fundamentally bad people, they took positions of power so that they can do bad things, and a liberal democracy should operate with a fundamental amount of skepticism of them
It takes so many leaps of logic and assumptions just to get anywhere close to connecting what you just wrote to what I said in the previous comment. In the realm of protections from police procedural abuses, we have 10x the protections of any government in Western Europe. Relaxing them a bit is not a slippery slope to Stalinist Russia or Pol Pot, but cities like Washington DC are close to El Salvador or Jamaica in terms of murder rate.
The great thing about having a constitution with an enumerated bill of rights is that 'relaxing them a bit' (which will totally go great this time around! promise!) is luckily not an option that's available to you
Again, leaps of logic and many assumptions on your part are required to connect what you just wrote to what I had written. You seem to want to argue against positions I don't even have, good luck with that
Yes, the leaps of logic and many assumptions like (checks notes) quoting what you yourself write 12 hours ago:
'if every search and seizure is inspected to that degree....These kinds of lawyerly veto points'
A bit of reading comprehension shows that you were responding to someone (who I assume is an actual attorney) explaining why this search was thrown out- that the police may not arbitrarily stop & search a group of young men simply because they feel like it
Having strict gun laws that are weakly enforced is a recipe for an "only the criminals have guns" outcome. If I wanted to get a gun, I'd want to do it legally, since the risk of even being arrested for it makes the whole thing not worth it, even if I ultimately don't get convicted. But for a criminal the low risk of conviction makes having a gun much more attractive, since part of their "job" is interacting with the criminal justice system anyway.
Is it better if law-abiding people don't have guns when the criminals do? Probably, because any reduction in guns decreases deaths from guns. But I can see how this can make law-abiding people uncomfortable.
It's basically the situation in Jamaica and Mexico., each of which is much stricter "on paper" but neither of which is exactly crime-free.
For those of us who don't live in Washington, D.C. -- most of us, I suspect -- this is more of a learning opportunity than anything else. For law-and-order liberals like me, I wish nothing but the best for Matt and others of like mind in their push for a safer city.
Mostly, this article reminded me D.C. is a small and unique place -- the data point about how San Francisco supported Trump twice as much as D.C. is amazing.
Yeah, I live right across the river in Arlington - a very liberal city with a progressive prosecutor who I'm not a fan of. But whenever I cross into DC it strikes me that it really is a world apart.
I got caught in the middle of Dupont Circle's pride. So many teenagers fighting, jumping turnstiles, smoking huge blunts, and carrying liquor bottles in the open. It was anarchy. I am too old for that much stimulation.
Oh ya and the worst part, some people subjected their poor dogs to all that.
The number of young people in the District in June 2023 still wearing masks outside (in this heat) is nuts.
Yeah. In Arlington it's down to around 10-15% in grocery stores, and maybe 1 or 2 percent among young people outdoors. Definitely way more in DC.
Beijing's around 5%-8% in stores, I'd say. Cab drivers still mask.
What are the 100 percenters?
ROFLMAO.
I may have to subscribe to BARpod just to listen to this one. Wow.
I mostly feel bad for the kids having their social lives choked off by this. We will get to a point where I think CPS has to start getting involved.
The subtext of this piece that we should dial down civil liberties to a point where we get more gun convictions seems bad. “Schrödinger’s Gun” is a well understood consequence of the fact that our standard of proof is substantially higher than “50% likelihood” so it’s not enough to just limit things to two suspects. Public defenders being as skilled and able to devote as much time as prosecutors is a (rarely practiced) underlying assumption of the adversarial legal system. For wherever you draw the line for the fourth amendment, it’s absolutely crucial that violations disqualify any evidence collected when the line is crossed. Juries are as validly democratic governance as anything else.
There are a lot of dials you can turn for 100% conviction rate on crimes, but there are also reasons that we put the bar for convictions so high, and this post didn’t really grapple with those.
This reminds me of the complaint about sexual assaults not being prosecuted. Its not (or least not just) a patrearchal conspiracy, acquaintance rape is very hard to prove b/c the physical evidence is often similar or identical to consensual sex, which has also been known to occur. Usually the only way tell them apart is testimony of the people involved, which tends to be contradictory, and therefore create reasonable doubt.
We could lower the standard for sexual assault convictions, but then we'd be risking more Type I errors, which the criminal justice system is very much designed to avoid.
The same goes for a lot of"white collar" crime, where we want intent to be a required element (math errors on tax returns should be treated differently than lying on your tax return), but intent is necessarily hard to prove.
OTOH, if you have a dead body with a bullet hole in it, it's usually just a question of figuring out who pulled the trigger.
One of my greatest frustrations with the current left Discourse is the common and frankly lazy refrain that obviously blue-collar crimes like "I stuck a knife in your face and demanded money and it's on tape" are designed to be easier to convict than "fudged stuff on my taxes" crimes.
As if this somehow proves that The Man and The Elite are somehow rigging the system nefariously for their own ends, rather than the fact that sticking a knife in somebody's face is prima facie not okay and sort of embeds the question of intent in the act itself.
It's hard to prosecute white-collar crime because the facts are usually very complex and expertise-intensive, and thus expensive to prosecute, and because the crimes often border on perfectly legal business practices. Those things aren't really in the courts' or prosecutors' control. The courts could be less concerned with protecting ordinary business from criminal liability, but I think that criticism is awfully cavalier with the actual reality of what a criminal prosecution means for a defendant's life.
I disagree that the exclusionary rule is essential to keeping strong fourth amendment protections. In fact it is a lousy mechanism that only very weakly sanctions cops and very strongly rewards actually guilty people.
We should fine or fire cops who do illegal searches, not destroy good evidence.
Yes! This! US goes too far with the "fruit of the poisonous tree" doctrine and way too little to hold cops personally accountable for fuck ups (or worse).
I mean the monkey's paw curling here is that if cops can get fired for any search deemed unconstitutional they are going to stop doing any kind of search or seizure that isn't signed off by a judge, which could have a lot of consequences.
The point is there needs to be a more effective way to motivate them to follow the law. Not every democracy go so far with inadmissibility like the us and they still maintain rule of law and due process.
https://lawcomic.net/guide/?p=1585
Law comic has a pretty good primer on this. It seems like an interesting argument where reasonable people can disagree.
The idea is that throwing out illegally obtained evidence prevents some of the harm that comes from government violating your rights.
That's how Europe does it.
One problem is that, historically, that worked better in theory than in practice. The Supreme Court first applied the exclusionary rule to federal, but not state, prosecutions in 1914 in Weeks v. United States. When the Court finally extended the exclusionary rule to to state prosecutions in 1964 in Mapp v. Ohio, part of the rationale was:
"Significantly, among those now following the rule is California, which, according to its highest court, was "compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions . . . ." People v. Cahan, 44 Cal. 2d 434, 445, 282 P. 2d 905, 911 (1955). In connection with this California case, we note that the second basis elaborated in Wolf in support of its failure to enforce the exclusionary doctrine against the States was that "other means of protection" have been afforded "the right to privacy."[7] 338 U. S., at 30. The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment to the protection of other remedies has, moreover, been recognized by this Court since Wolf. See Irvine v. California, 347 U. S. 128, 137 (1954).",
Note also that this law review article https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3743&context=articles (written, fwiw, by a big name in the criminal procedure field) quotes an NYPD Dep Commissioner as saying: "Before [Mapp], nobody bothered to take out search warrants. [Before Mapp] the U.S. Supreme Court had ruled that evidence obtained without a warrant-illegally if you will-was admissible in state courts. So the feeling was, why bother?"
There are good arguments against the exclusionary rule, but the alternatives are not politically feasible.
Relatively minor point of order with respect to your overall comment, but I don't think that "public defenders being as skilled and able to devote as much time as prosecutors is a (rarely practiced) underlying assumption of the adversarial legal system" -- in particular, the right to a public defender in state criminal trials only dates to 1963 (Gideon v. Wainwright), which far postdates the basic outlines of criminal prosecution in American law. Given the relatively late date of the incorporation of the right to counsel (viz., appointment of a public defender) against the states, combined with the well-known (and generally accepted / considered good) selection effect whereby prosecutors bring the cases they think they're most likely to win, it seems that an assumption of parity between prosecution and defense resources isn't necessarily implicit in the structure of American criminal trials.
The idea of enforcing or, even worse, creating other crimes to create an excuse to search people for guns makes me queezy. At the very least, it seems to violate the spirit of the law. It also results in a system of overcriminalization
The point of the 4th Amendment is that the government shouldn't go looking for a reason to arrest someone, and certainly shouldn't search someone without a reason to think they have evidence of a particular crime on them. The fear is that, absent that protection, the government will start searching people or groups of people to harass them. There ste obviously trade offs to that, it's easier to get away with crimes if the police can't search you at will, but that's the trade off we've made via the 4th Amendment. If you want to change that change it, don't come up with a wierd work-around.
It also results in overcriminization. I've heard people arguing that pot should stay illegal because the smell of pot provides cops with an excuse to search people for evidence of other crimes. Thet is doubly bad. Not only have those cops violated the purpose of the 4th Amendment, but in order to allow them to do so, we've limited the liberty of people to smoke pot if they want to.
"The idea of enforcing or, even worse, creating other crimes"
I'm with you that we shouldn't create other crimes, and we should think twice about the crimes we do start enforcing more stringently but enforcing fare evasion seems reasonable on its own.
It's reasonable on its own, but should it them be an excuse to pat the person down looking for other crimes? Is that actually necessary for enforcing laws against fare evasion, or is it just a pretext?
Also, if it looks like enforcing laws against fare evasion is just a pretext to search and harass people (especially if not done evenly), it undermines the the legitimacy of a legitimate law.
If it's purely pretext yes.
I think the law should have some legitimate benefit that we actually care about. So regardless of whether your search finds something, you need to pursue the fare evasion you searched them for.
I agree that even if it's not pure pretext it has some worrying implications and _could_ lead to a slippery slope of adding more and more infractions for this - I just don't think fare evasion or illegal tags (especially because illegal tags aid in the commission/evasion of enforcement for other crimes) fall there.
I dont think they do either, but I also don't think it is really necessary for the police to search you to give you a ticket.
Make people believe that these are legit laws, by not just using them as a pretext.
It stops being a pretext when someone has broken the law within sight of a police officer. At that point it's highly reasonable to assume they might be breaking other laws too, and should be searched.
Should you be able to go search their house too?
The way the 4A works is you don't just get to search someone because you have a vague notion they may have committed a crime. Generally, you need a particular crime and a reason to think you will find a particular thing when you search them. Usually you also need a warrant.
There are some exceptions to this. The one at issue here is that police can do a search incident to arrest to make sure the person doesn't have a weapon that they can use to resist arrest - basically you dont want the guy in the hakc of the police car or jail cell pulling out a gun. But it's a very limited exception. It doesn't mean that you get to go search their house for evidence of other crimes. If they had a bag with them, but that bag is more than a few feet away when you are arresting them, you don't even get to search the bag. This is because the purpose is safety, not to go fishing for evidence, and a gun in their house, or in a bag they left down the hall because there is no safety justification.
Technically searching someone you are arresting for a turnstile jump doesn't get you this safety search, but if you are arresting them ~so that you can search them~ it really is the tail wagging the dog.