Are cops constitutional?

That may seem like an odd question—perhaps even a little nutty. Police forces have been part of the American criminal justice system since an eight man department was established in Boston 175 years ago and the first large department was created seven years later in New York City. There has never been a serious constitutional challenge to the general authority of police or to the establishment of police forces, sheriffs’ departments, or other law enforcement agencies, and it’s unlikely there ever would be. Any federal court would undoubtedly have little patience for such a challenge. And any hypothetical world where police were ruled unconstitutional would descend into chaos, probably rather quickly.

But in a 2001 article for the Seton Hall Constitutional Law Journal, the legal scholar and civil liberties activist Roger Roots posed just that question. Roots, a fairly radical libertarian, believes that the US Constitution doesn’t allow for police as they exist today. At the very least, he argues, police departments, powers, and practices today violate the document’s spirit and intent. “Under the criminal justice model known to the Framers, professional police officers were unknown,” Roots writes:

The general public had broad law enforcement powers, and only the executive functions of the law (e.g. the execution of writs, warrants, and orders) were performed by constables or sheriff (who might call upon the community for assistance). Initiation and investigation of criminal cases was nearly the exclusive province of private persons. . . . The advent of modem policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Founders.

< . . . . >

This isn’t to say that the colonial era’s more individualized, private methods of law enforcement would work today. As American towns grew from close-knit communities of people of similar ethnicities, with shared traditions, values, and religion, to cities whose di verse populations of immigrants had none of that in common, centralized police forces emerged to preserve order and enforce a common set of laws. Once neighbors stopped speaking the same language and worshiping in the same buildings, shunning and social stigmatization lost their effectiveness.

Even so, Roots’s question is a useful starting point for this book because it shows just how far we have come. The Founders and their contemporaries would probably have seen even the early-nineteenth-century police forces as a standing army, and a particularly odious one at that. Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was England’s decision to use the troops for everyday law enforcement. This wariness of standing armies was born of experience and a study of history—early American statesmen like Madison, Washington, and Adams were well versed in the history of such armies in Europe, especially in ancient Rome.

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[font size=4]Whites on Blacks on Blacks[/font]
December 28, 2014 at 11:11am
Quoted below is the text of a comment someone else made on a friend's post, followed by my extremely lengthy response. Further context unnecessary, though when I mention "this article" I'm referring to the original share. The comment's author is a FoaF with whom I have no personal relationship, so I'll omit his name for the sake of privacy...

The national conversation should address why there is always a typical need to patrol by white and black and gay and women police officers in African American communities above all, and why it is the most dangerous areas to patrol. Let's be blatantly honest about using racism as an excuse that steers away from the significant problem - black on black crime.

The national conversation definitely should address the point you're raising. Mostly, to call it out as a false narrative that needs to be dispelled and discarded. If we're going to have any hope of tackling the really important issues — the tough ones that don't have simple narratives or clear, painless solutions — then we have to start by looking past the pevasive cultural demonization of (young) black (males) that's at the heart of this article, and plays a contributing role in many of the problems we need to address.

Calling out "black on black crime" as "the significant problem" affecting black communities is an appealing argument to make, especially for an outsider. It's not exactly a difficult claim to prove — the racial disparities in crime-rate statistics are vast enough that you could probably make them out from the surface of the moon! There's no way to dispute the fact that a vastly disproportionate number of crimes are committed by blacks, particularly crimes in which the victim is also black. Clearly, the black community has a serious crime problem that it's failing to address. That's just the obvious truth, if we're being blatantly honest.

Unfortunately, it's pretty much a load of bullshit. If we're being honest.

Fun Fact: When you take crime statistics and control for other factors, racial disparities pretty much vanish. (Some references...)
http://www.rand.org/content/dam/rand/www/external/labor/seminars/adp/pdfs/adp_ajph.pdf
http://dash.harvard.edu/bitstream/handle/1/3226952/Sampson_RacialEthnicDisparities.pdf
http://egov.ufsc.br/portal/sites/default/files/anexos/33027-41458-1-PB.pdf

Turns out, statistically, poor people commit more crimes. The crime rate is higher among the unemployed. The educationally disadvantaged; those who lack a supportive and stable home environment; people who reside in communities with a high degree of racial segregation; those who get the short end of income inequality; being a family member or friend of someone who's involved in criminal activity, or has a criminal past — ALL of those factors increase the likelihood that someone will commit a crime, REGARDLESS OF RACE. The crime rate is higher among the black community primarily because blacks are overwhelmingly impacted by these issues.

(One more contributing factor: Being an unwanted child, raised by someone who wasn't prepared to be a parent. Which is why the crime rate PLUMMETTED nationwide a couple of decades after Roe v. Wade. A huge pool of potential future criminals suddenly dried up once safe, legal abortion became an option.)

You mentioned "black-on-black" crime, specifically, which statistically occurs at least twice as much as black-on-white crime. (That's comparing the overall averages, in many communities there's a much greater disparity.) But there again, most of the apparent racial disparity can be attributed to other factors. It's statistically far more common for blacks, especially those with other risk factors for criminal activity, to live in communities with lower levels of racial diversity. The people around them are overwhelmingly black, so of course it's highly likely that their crimes will have black victims. (Hell, white criminals show a FAR greater disparity: statistically white-on-white crime occurs FIFTEEN TIMES as often as white-on-black crime, overall. Yet you NEVER hear anyone talking about the "white-on-white crime problem" or denouncing what they claim is a culture of violence within the white community, even though white criminals commit crimes against white victims at roughly the same rate as black criminals.)

However, the third study URL I provided above noted one statistical predictor of crime rate that I found particularly interesting, especially since it applied ONLY to the black-on-black crime rate, specifically:

This analysis demonstrated that the White-to-Black income inequality variable was consequential in determining the Black-on-Black crime rate. In cities where White-to-Black economic inequality was pronounced, Blacks were much more likely to be victimized by other Blacks, holding constant other factors. This model also investigated the possibility of whether intraracial economic inequality impacted the Black-on-Black crime rate. Results showed that the linear effect for the Black-to-Black economic inequality variable was not substantive. The Black-on-Black crime rate was not higher in cities with high levels of Black-to-Black economic inequality.

So, it seems that in cities where whites get more of the higher-paying jobs, control more of the wealth, and generally have a higher standard of living than the city's black community, where blacks are systematically denied the opportunities that white people enjoy, and where the inequality they suffer is more blatant or they have to face more frequent reminders of their situation... those cities have more black-on-black crime. And what's the cause? White oppression.

A high crime rate is a thing that happens TO a (black) community, another societal burden they've had to shoulder more than their share of, and one which primarily victimizes them as well. It is not a failing OF the black community, or something they can be blamed for creating all by themselves. Nor can we expect them to just magically reduce crime by sheer force of will, unless something is done to also address the real reasons their crime rate is higher in the first place.

There is one important thing that happens when the problem is framed as "black-on-black crime" (despite race having nothing to do with the real issue), instead of "poor crime" or "jobless crime" or "opportunity-starved crime" or any of the other things that it actually is. If the problem is that black people commit more crimes, then there's nothing *WHITE* people can do about that! After all, it's not like we made them black, or like we could tell them to stop being black. As long as the higher crime rate in certain communities is a function of skin color, then it's totally up to the black community to solve the problem. They just need to quit being so damn crimey. Like us white folks.

But if the crime rate is attributable to things like economic disparity, lack of educational opportunities, pervasive income inequality relative to the white community, recidivism, ghettoization, or just a lifetime of being slowly beat down by society... well, then, there's PLENTY that the rest of society (white people in particular) could do to address those issues! Hell, we have to take at least partial responsibility for some of them! Suddenly, the high crime rate within and among certain populations isn't a significant problem that the black community has to address. It's a significant problem that we ALL have to accept responsibility for dealing with.

[font size=5]Mr. de Blasio’s Call for Harmony[/font]
By THE EDITORIAL BOARD DEC. 22, 2014

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Two families in Brooklyn — and the larger family of New Yorkers and the New York Police Department — are mourning the deaths of two officers who were shot in ambush by a criminal on Saturday. His deranged act has inflamed rifts between the police and Mayor Bill de Blasio and between the police and the public, and it posed a grave test of Mr. de Blasio’s leadership.

So the mayor’s plea on Monday for everyone to stand down, to put aside protests and bitter words, at least until the funerals are done, was an understandable bid for civic calm. Fair enough. Anything that even briefly silences the police union leader Patrick Lynch, whose response to the killings has been to slander Mr. de Blasio as a bloody-handed accomplice to murder, is worth supporting.

But the moment for discussion and argument will soon return. And that moment will demand forceful truth-telling, to counter the lies and distrust that have clouded this tragedy.

< . . . . >

The protests for police reform should not be stifled — they should be allowed to continue, and be listened to. The protesters and their defenders, including Mayor de Blasio, need offer no apologies for denouncing misguided and brutal police tactics and deploring the evident injustice of the deaths of unarmed black men like Eric Garner. As Mr. de Blasio noted on Monday, a vast majority of demonstrators are “people who are trying to work for a more just society,” a mission that has nothing to do with hating or killing cops. Those who urge violence are on the fringe, Mr. de Blasio said, rightly denouncing them and urging New Yorkers to report them.

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[font size=5]Officers’ Killer, Adrift and Ill, Had a Plan[/font]

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What exactly pushed Mr. Brinsley to fatally shoot two police officers before shooting himself is not clear. But by Sunday evening, several things had become obvious. He had an extensive history with the police, having been arrested 20 times — mainly for petty crimes like stealing condoms from a Rite Aid drugstore in Ohio. He spent two years in prison after firing a stolen gun near a public street in Georgia.

Mr. Brinsley had also suffered from mental problems. Relatives told the police he had taken medication at one point, and when he was asked during an August 2011 court hearing if he had ever been a patient in a mental institution or under the care of a psychiatrist or psychologist, he said yes. He had also tried to hang himself a year ago, the police said.

By this year, Mr. Brinsley had become isolated. He was estranged from his family. His on-again, off-again relationship with Shaneka Thompson, 29, who works for the Maryland Department of Welfare and serves in the Air Force Reserve, was off again. By Saturday, he had seized on the deaths at the hands of police officers of Eric Garner on Staten Island and Michael Brown in Ferguson, Mo., focusing his rage against the authorities. In his short life, during which Mr. Brinsley failed to finish high school, to hold a steady job or, seemingly, to commit even the smallest crime without being caught, thoughts of revenge seemed to be the one thing giving him purpose.

“Most of his postings and rants are on the Instagram account, and what we’re seeing from this right now is anger against the government,” Robert K. Boyce, the Police Department’s chief of detectives, said at a news conference on Sunday. Chief Boyce added that one of those posts showed a burning flag, and in others Mr. Brinsley talked of the anger he felt toward the police. There were, Chief Boyce said, “other postings as well, of self-despair, of anger at himself and where his life is right now.”

< . . . >

Mark Kessinger
4 Hours Ago

Much of the criticism of the Mayor de Blasio has centered on his public discussion of a painful conversation he and his wife had with their mixed race, teenage son about the need for extreme caution in any dealings he might have with police, suggesting that talking about this discussion in public was somehow not "supportive" of the NYPD. This is totally off the mark, and in a number of ways.

The mayor has a responsibility to support BOTH the police department and the citizens of New York. But "support" in the context of the job of mayor does NOT mean toeing the PBA's line in every instance. It is not the mayor's job to 'support' a police department's dysfunctional dealings with a particular community. And support for the NYPD is not the samet hing as endorsing its shortcomings. As a leader, where there is an identifiable problem between police and a particular community -- and there clearly IS such a problem here -- support means identifying the problem and taking steps to remedy it. And that is exactly what the mayor has done. Better relations between the police and those they serve are in the interest of BOTH the police and the public.

Besides all of that, though, many of those who now criticize the mayor for even having that conversation with his son are the same folks who, just a week ago, were complaining that parents of black kids don't teach their kids to be sufficiently respectful.of law enforcement. Seems to me that is exactly what the Mayor was doing with his son. So which is it?

Mark Kessinger
5 hours ago

I am thoroughly appalled and disgusted by Lynch's statement as well as some of the comments here suggesting that Mayor di Blasio bears any responsibility for the actions of some crazed gunman who had murdered shot his ex-girlfriend prior to killing the two officers, and then killed himself immediately after. Irrespective of what the gunman said in an Instagram message, clearly there was a lot going on with this guy that had nothing to do with the death of Eric Garner, and certainly had nothing to do with anything the Mayor said or didn't say. Neither the fear of police officers nor the rage over the failure to hold police accountable for the death of Eric Garner originated with the Mayor. In fact, by expressing a degree of empathy with the protesters' concerns, the mayor may have actually helped to ease tensions as compared to what they might have been had the Mayor taken the kind of belligerent tone embraced by the PBA. And the entire NYPD should be ashamed of the spectacle of fellow officers turning their backs to the mayor, effectively exploiting the tragic deaths of these two officer in service of trying to gain an upper hand in their disagreements with the Mayor. It was juvenile and disgusting.

[font size=5]Cuomo to Ban Fracking in New York State, Citing Health Risks[/font]

ALBANY — The Cuomo administration announced Wednesday that it would ban hydraulic fracturing in New York State, ending years of uncertainty by concluding that the controversial method of extracting gas from deep underground could contaminate the state’s air and water and pose inestimable public-health risks.

“I cannot support high volume hydraulic fracturing in the great state of New York,” said Howard Zucker, the acting commissioner of health.

That conclusion was delivered publicly during a year-end cabinet meeting called by Gov. Andrew M. Cuomo in Albany. It came amid increased calls by environmentalists to ban fracking, which uses water and chemicals to release natural gas trapped in deeply buried shale deposits.

The state has had a de facto ban on the procedure for more than five years, predating Mr. Cuomo’s first term. The decision also came as oil and gas prices continued to fall, in part because of surging American oil production, as fracking boosted output.

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Dozens of towns and cities across New York have passed moratoriums and bans on fracking, and in June, the state’s highest court, the Court of Appeals, ruled that towns could use zoning ordinances to ban fracking. Opponents have also consistently protested at the governor’s public events and during his successful re-election campaign, where his Republican opponent, Rob Astorino, called for legalizing fracking.