Retired public workers can count on promised benefits, court says
California Supreme Court rules in an Orange County case that implied contracts covering retirees' healthcare are valid.
y Maura Dolan, Los Angeles Times
November 21, 2011, 5:50 p.m.
Health benefits for government retirees may not be eliminated if state and local governments had clearly promised workers those benefits, the California Supreme Court ruled in an Orange County case Monday.
The unanimous ruling is expected to make it more difficult for state and local governments to shave costs by cutting health benefits to retirees if elected officials in previous years made it clear that those benefits would last a lifetime.
The state high court decided that retired Orange County employees may be able to show they had an implied contract that prevented the county from changing a healthcare plan in a way that caused the premiums of many retirees to skyrocket.
"Under California law, a vested right to health benefits for retired county employees can be implied under certain circumstances from a county ordinance or resolution," Justice Marvin R. Baxter wrote for the court.
Retirees sued Orange County in 2007 after it revamped the health benefit program to save money. A federal trial court sided with the county. An appeals court, which is now considering the case, asked the California Supreme Court to clarify state law in the case.
"This decision says that when you are in the process of doing public employee pension reform, you have to respect the rights of current retirees," said Ernest Galvan, a lawyer who represented more than 5,000 Orange County retirees and their family members.
"If you promised them a particular benefit when they were working and promised that would be part of their retirement, then that is a promise you have to keep."
But lawyers for cities and counties said they were pleased the court established a hurdle for showing that such promises were made.
"The good news for cities and counties is that the court made it clear that you need very strong evidence that the [elected officials] intended to create a lifetime benefit," said Jonathan V. Holtzman, who represented associations of California cities and counties.
Arthur A. Hartinger, who represented Orange County, said the county changed the health insurance plan to ensure it could survive.
"This was about saving a plan that was on the verge of bankruptcy," Hartinger said. "Almost all the retirees have remained covered in group health insurance."
The case will now return to the U.S. 9th Circuit Court of Appeals. Lawyers said they expect the lawsuit to be sent back to the trial court to determine whether there was evidence of clear promises.
maura.dolan@latimes.com
Copyright © 2011, Los Angeles Times
Public pensions are protected in Constitution
But some believe the contracts clause doesn't prevent the state from changing costly retirement plans.
By George Skelton Capitol Journal
November 14, 2011, 4:37 p.m.
From Sacramento
In Philadelphia, 224 years ago, some men tucked these words into the nation's new Constitution: "No state shall … pass any … law impairing the obligation of contracts…"
Those words, squeezed into a very long sentence in Article 1, Section 10, listing powers denied the states, became known as the "contracts clause." And it is playing havoc with modern-day public pension reformers, including Gov. Jerry Brown.
As widely interpreted — most importantly by the courts (or so we laymen are told) — the clause means that pensions promised state and local government workers on the day they were hired cannot be reduced without giving them a new compensating benefit.
In other words, some kid walks into a state office seeking a junior clerk job. He lands it. That constitutes a contract. The new hire is entitled to the pension benefit then in effect if he sticks around long enough to collect it — even if the subject of retirement perks never was discussed, as it surely would not have been.
"Employees are entitled to benefits in place during their employment," asserts the California Public Employees' Retirement System in a recent report.
"Promised benefits may be increased during employment, but not decreased, absent the employees' consent.... The courts have established that this rule prevents not only a reduction in the benefits that have already been earned, but also a reduction in the benefits that a member is eligible to earn during future service."
That's a jaw-dropper, I suspect, for most private-sector workers. They don't enjoy such constitutional protection. They're covered by a federal law that basically guards only the pension benefits they've already earned.
As too many of us know, there has been an epidemic of private pension butcheries in the last decade. Companies simply have announced that they're freezing benefits. Employees will get what they've accrued — what they're vested in — but will earn no more in the future.
The company's new retirement plan will be a 401(k), where the financial risk is borne by the employee rather than the employer. Forget what, if anything, the worker was told when hired. The world has changed.
Naturally, this has created a great deal of pension envy among the vast majority of voters who don't work for a state or local government.
And it's at the heart of voter demands for public pension reform — with plenty of legitimate justification: The future liabilities of public pension systems are underfunded by hundreds of billions of dollars.
The deficit-ridden budgets of state and local governments need immediate relief from the escalating cost of pension contributions for current employees. And the long-term fiscal health of these governments requires a significant reduction in retirement benefits for future hires.
A poll in March by the Public Policy Institute of California showed that 74% of likely voters favored eliminating pensions and adopting 401(k)-type systems for new workers. And 57% thought pension plans should be reduced for current employees.
But the current employees' protection in the U.S. Constitution is fortified by a similar clause in the California Constitution: "A … law impairing the obligation of contracts may not be passed."
Here's the worst kicker for private-sector taxpayers: There's a theory that current employees can't even be forced to contribute more into their pension plans.
Part of Brown's recent proposal to overhaul state and local government pensions is to require workers to pay a larger share of their retirement costs. Many already have agreed to through collective bargaining.
"One thing we know for sure under constitutional law," Brown told reporters, is "the employer can require higher contributions, and that is the most immediate and the biggest change that will make our pension plans more solvent."
Not so fast, says nonpartisan Legislative Analyst Mac Taylor. He's also certain, but in the opposite way of the governor.
The analyst, in a recent report, called it "a legal and collective bargaining minefield," adding that "our reading of California's pension case law is that it will be very difficult — perhaps impossible — for the Legislature, local governments or voters to mandate such changes."
Brown isn't buying it, according to his labor secretary, Marty Morgenstern.
"We think the legislative analyst is wrong," Morgenstern says. "Different people have different opinions about that. One never knows what the courts will do."
I called a constitutional law professor, John Eastman of Chapman University. He agrees with Brown.
His reading of two centuries of case law on the contract clause, Eastman says, is that public pension plans can be modified if there's "a real serious fiscal problem, a dire financial need — and the system is underfunded. Given the circumstances in California, I think we would meet the legal requirement."
He adds: "Guys in the Legislature made [pension] promises they cannot fund. Making sure that future generations of taxpayers are not held to that obligation is not a violation of the contracts clause."
You'd think.
Eastman is working with a conservative group to place a more drastic pension overhaul than Brown's on the California ballot next year.
Brown's plan — which analyst Taylor calls "bold" overall — would trim retirement benefits for future employees. Their retirement ages would be increased, and they'd be plugged into a 401(k)-pension mix.
The goal would be to replace 75% of their salaries — still generous by private-sector standards.
But the notion of not being able to alter pension plans for current workers — even force them to contribute more — is nuts. A lifelong contract shouldn't come with an entry-level job offer.
It's hard to believe that's what the Constitution's framers had in mind.
george.skelton@latimes.com
Judge orders release of L.A. County pension data
Rejecting arguments that the records are confidential, he rules that all pension data for 50,000 government retirees must be disclosed. The Times has sought the data for nearly a year.
By Catherine Saillant, Los Angeles Times
November 16, 2011
A Los Angeles judge Tuesday ordered the release of all pension data for 50,000 Los Angeles County government retirees, rejecting arguments by union and retirement system attorneys that the records are confidential.
Superior Court Judge James Chalfant ruled that the Los Angeles County Employees Retirement Assn. must produce several variables that are used to calculate an employee's pension, including years of service at retirement, additional service credits purchased by an employee and the pension formula.
Chalfant also largely denied a request by lawyers for two unions representing sheriff's deputies to keep the names of former undercover officers secret. The union lawyers argued that revealing those names could put the retired officers at risk of retaliation from drug cartels and gang members that they targeted on the job.
But the judge said most of the examples cited by the attorneys were "speculative" and agreed to keep confidential only two names. One of those retired deputies is now in prison and could be threatened by inmates if his name and former position were revealed, said Ricardo Ochoa, an attorney for the Professional Peace Officers Assn.
The Times has sought pension data on the county's 50,000 retirees for nearly a year. In September, the Los Angeles County Employees Retirement Assn., which administers the pension benefits, provided limited information on retirees, including their names, pension payments and the departments from which they retired.
But the release of similar data for 2,527 public safety employees was delayed after a union attorney alleged that its release could endanger the lives of some retirees. Tuesday's ruling compels the disclosure of those records.
catherine.saillant@latimes.com
Wednesday, November 23, 2011
Friday, November 18, 2011
Thug cops and dirty hippies
by Mark Nichols
Anyone who knows anything about law enforcement work understands that it’s not easy even under optimal conditions. Most people get to go home at the end of a shift without seeing abused kids, victims of violent crime and the panoramic misery officers are exposed to on a daily basis.
Then there are the split second decisions cops have to make that lives depend on, judgment calls that can make or break criminal cases and navigating the world of inner-agency power struggles and other conflicts.
Most people don’t have to wonder when they kiss their spouse in the morning if they’re coming home that night.
All that for a meager paycheck and a hostile general public and media.
Ironically, those that understand the pressures and challenges of the job frequently feel the most sympathy for police officers when others feel the least.
Which brings us to the OWS protests.
For a lot of civilians, cops seem like a monolithic group- an intimidating force of men and women with guns and powers of arrest that think and act alike.
This is of course absurd.
But the chants of “who do you protect?” and signs reading “police serve and protect the interests of the one percent,” indicate that the stereotype is a common one.
People are generally more comfortable with black or white than gray. As a result the idea that police are enforcing the law in the interest of the powerful as opposed to the powerless is an attractive one for many protestors.
It’s pure fantasy but that’s why it’s such an attractive notion to many. And because the one- percent are largely anonymous and invisible, police get left holding the bag in terms of being on the receiving end of protestors’ rage.
Michael Bloomberg does not do crowd control. He takes a helicopter to lunch. So anger that wasn’t intended for the police gets directed their way because they’re the only available and visible target.
Because Americans live in a free society, many of us don’t even know what it is that police actually do beyond what we see on wildly unrealistic television shows and Hollywood movies. Most folks just don't understand the challenges of controlling an emotionally volatile and disorganized crowd trying to make their voices heard.
“Why don’t the cops just let them protest?”
That’s a great idea, right up until the point when someone’s mother gets stabbed and police and EMS can’t get to the scene because the street’s blocked. Then it’s “why didn’t the police get to the scene faster?” when the victim bleeds to death.
“Why did they have to use pepper spray on that old lady?”
Well maybe that was the best way to deescalate a confrontation that could have left cops and civilians alike with more serious injuries than temporary eye irritation. Have there been some questions raised about particular use of force incidents? Of course. These things are messy, chaotic and generally don’t go according to plan. Those questions will be asked and answered in due course.
“Why are the cops so mean?”
You try maintaining total composure while people yell all kinds of vile crap about you, your family and your occupation. It’s not as easy as it looks.
“Cops serve and protect the one percent!”
Really? You think patrol officers spend all their time taking lawn ornament complaints in gated communities? Cops spend the lion’s share of their careers serving and protect the most vulnerable and least advantaged among us.
The so-called one- percent are largely behind the effort to neuter public safety unions. You really think cops want to serve the exclusive interests of individuals that would make their lives more difficult?
But when emotions run as high as they do currently, it’s easier for people to go with established black and white narratives rather than engage the gray.
It’s difficult for a liberal college student to face the fact that a cop might have lost his or her house to foreclosure and feels just as angry if not angrier about lawlessness on Wall St. than they do. It’s just as difficult for a conservative cop not to buy into the “dirty hippie,” stereotype designed to delegitimize the protests entirely.
The difference between the protestor and the cop, who may in fact be on the same page on a lot of issues, is that the cop does not have the same opportunity as the protester to exercise their first amendment rights. It doesn’t even matter if you’re a protestor or a counter protestor.
If you’re a retired captain from another city it’s a different story. You’re no longer charged with the public safety mission. But one of the sacrifices police officers make to do a really tough job is giving up the right to speak out that many Americans simply take for granted.
So, as is usually the case, policing the protests is largely a thankless task. But it’s important to remember a couple of things. First, although it may not seem like it, there are a lot of civilians that know just how hard police officers are working to maintain public safety in the most difficult of circumstances.
But the evening news crew doesn’t want to interview those people. They want someone with blood on their face and an axe to grind for the ratings.
The second thing to keep in mind is that the professionalism and restraint shown by American law enforcement during the protests is critical to democracy itself.
It’s unclear what the outcome of the demonstrations will be. But if there’s change for the good that comes about as a result, a lot of cops are going to deserve a lot of credit for that progress.
Mark Nichols is the editor of American Police Beat
Anyone who knows anything about law enforcement work understands that it’s not easy even under optimal conditions. Most people get to go home at the end of a shift without seeing abused kids, victims of violent crime and the panoramic misery officers are exposed to on a daily basis.
Then there are the split second decisions cops have to make that lives depend on, judgment calls that can make or break criminal cases and navigating the world of inner-agency power struggles and other conflicts.
Most people don’t have to wonder when they kiss their spouse in the morning if they’re coming home that night.
All that for a meager paycheck and a hostile general public and media.
Ironically, those that understand the pressures and challenges of the job frequently feel the most sympathy for police officers when others feel the least.
Which brings us to the OWS protests.
For a lot of civilians, cops seem like a monolithic group- an intimidating force of men and women with guns and powers of arrest that think and act alike.
This is of course absurd.
But the chants of “who do you protect?” and signs reading “police serve and protect the interests of the one percent,” indicate that the stereotype is a common one.
People are generally more comfortable with black or white than gray. As a result the idea that police are enforcing the law in the interest of the powerful as opposed to the powerless is an attractive one for many protestors.
It’s pure fantasy but that’s why it’s such an attractive notion to many. And because the one- percent are largely anonymous and invisible, police get left holding the bag in terms of being on the receiving end of protestors’ rage.
Michael Bloomberg does not do crowd control. He takes a helicopter to lunch. So anger that wasn’t intended for the police gets directed their way because they’re the only available and visible target.
Because Americans live in a free society, many of us don’t even know what it is that police actually do beyond what we see on wildly unrealistic television shows and Hollywood movies. Most folks just don't understand the challenges of controlling an emotionally volatile and disorganized crowd trying to make their voices heard.
“Why don’t the cops just let them protest?”
That’s a great idea, right up until the point when someone’s mother gets stabbed and police and EMS can’t get to the scene because the street’s blocked. Then it’s “why didn’t the police get to the scene faster?” when the victim bleeds to death.
“Why did they have to use pepper spray on that old lady?”
Well maybe that was the best way to deescalate a confrontation that could have left cops and civilians alike with more serious injuries than temporary eye irritation. Have there been some questions raised about particular use of force incidents? Of course. These things are messy, chaotic and generally don’t go according to plan. Those questions will be asked and answered in due course.
“Why are the cops so mean?”
You try maintaining total composure while people yell all kinds of vile crap about you, your family and your occupation. It’s not as easy as it looks.
“Cops serve and protect the one percent!”
Really? You think patrol officers spend all their time taking lawn ornament complaints in gated communities? Cops spend the lion’s share of their careers serving and protect the most vulnerable and least advantaged among us.
The so-called one- percent are largely behind the effort to neuter public safety unions. You really think cops want to serve the exclusive interests of individuals that would make their lives more difficult?
But when emotions run as high as they do currently, it’s easier for people to go with established black and white narratives rather than engage the gray.
It’s difficult for a liberal college student to face the fact that a cop might have lost his or her house to foreclosure and feels just as angry if not angrier about lawlessness on Wall St. than they do. It’s just as difficult for a conservative cop not to buy into the “dirty hippie,” stereotype designed to delegitimize the protests entirely.
The difference between the protestor and the cop, who may in fact be on the same page on a lot of issues, is that the cop does not have the same opportunity as the protester to exercise their first amendment rights. It doesn’t even matter if you’re a protestor or a counter protestor.
If you’re a retired captain from another city it’s a different story. You’re no longer charged with the public safety mission. But one of the sacrifices police officers make to do a really tough job is giving up the right to speak out that many Americans simply take for granted.
So, as is usually the case, policing the protests is largely a thankless task. But it’s important to remember a couple of things. First, although it may not seem like it, there are a lot of civilians that know just how hard police officers are working to maintain public safety in the most difficult of circumstances.
But the evening news crew doesn’t want to interview those people. They want someone with blood on their face and an axe to grind for the ratings.
The second thing to keep in mind is that the professionalism and restraint shown by American law enforcement during the protests is critical to democracy itself.
It’s unclear what the outcome of the demonstrations will be. But if there’s change for the good that comes about as a result, a lot of cops are going to deserve a lot of credit for that progress.
Mark Nichols is the editor of American Police Beat
Sunday, November 13, 2011
9th Circuit Court of Appeals rules use of Tasers considered excesive force
NINTH CIRCUIT: USE OF TASERS CONSTITUTED EXCESSIVE FORCE IN TWO CASES
INVOLVING NONCOMPLIANT SUBJECTS
By Michael P. Stone and Melanie C. Smith, Attorneys at Law
The Ninth Circuit has issued a decision finding that excessive force was used in two incidents where officers utilized tasers against noncompliant subjects. Mattos v. Agarano, Docket No. 08-15567, was submitted and decided together with Brooks v. City of Seattle, Docket No. 08-35526. The opinion was issued on October 17, 2011. The issue in both cases was whether the defendant officers were entitled to qualified immunity from the plaintiffs’ claims of Fourth Amendment violations for unreasonable and excessive use of force.
The doctrine of qualified immunity shields a peace officer (or other government official) from civil liability for conduct that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 US 800, 818 (1982). This balances the “need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 US 223, 231 (2009).
The qualified immunity determination is a two-step test: first, viewing the facts in the light most favorable to the plaintiff, the court must decide whether the officer violated the plaintiff’s constitutional right; if so, the court must decide whether the right was clearly established in the context of the specific case at the time of the event. Saucier v. Katz, 533 US 194, 201 (2001).
Whether a use of force is reasonable or whether it is excessive is determined by the facts of the situation, and involves balancing governmental interests against the nature of quality of the intrusion on the individual’s Fourth Amendment rights. Graham v. Connor, 490 US 386 (1989), guides this determination. Factors involved in determining the governmental interests at stake include: “(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.” Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994), citing Graham, 490 US at 396.
Whether a right was clearly established at the time of the event depends on whether it was “‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011), quoting Anderson v. Creighton, 483 US 635, 640 (1987). This does not require that there be case law exactly on point, but “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. This takes into account that officers are required to exercise their discretion while performing their official duties and are often called upon to make split-second decisions in uncertain or intense situations.
Applying this test in the Mattos/ Brooks cases, the Ninth Circuit determined that while the facts as alleged by the plaintiffs amounted to excessive force, the defendant officers were entitled to qualified immunity in both cases because the law regarding use of force with respect to tasers was not clearly established at the time of the incidents.
Malaika Brooks
On November 23, 2004, in Seattle, Washington, Brooks was driving her 11 year-old son to school. Brooks was seven months pregnant at the time. Brooks entered the 20-mile-per-hour school zone driving 32 miles per hour and was pulled over by police officer Juan Ornelas. Brooks’ son exited the car to go to school as Brooks gave her license to Ornelas. When Ornelas cited Brooks for speeding, Brooks insisted she had not been speeding and refused to sign the citation. Officer Donald Jones then asked her to sign the citation and explained that it was not an admission of guilt but a confirmation that she had received the citation. Brooks told Jones he was lying and continued to refuse. Jones advised her that if she did not sign the citation she would go to jail. Sergeant Steven Daman arrived and also asked Brooks to sign the citation. Brooks again refused. Slip op. at 19007-08.
Ornelas told Brooks to get out of the car because she was going to jail. Brooks refused to get out of the car. The car was still running at this point. Jones then pulled out a taser, showed it to Brooks, and asked if she knew what it was. Brooks indicated she did not know what it was, then informed the officers that she was pregnant. After learning this, the officers discussed where to tase Brooks. Ornelas then opened the car door and twisted Brooks’ behind her back, and Brooks stiffened her body and clutched the steering wheel to prevent the officers from pulling her out of the car. Jones cycled his taser, showing Brooks what it did. Around this time, Ornelas was able to remove the car keys from the ignition and drop them onto the floor of the car. Slip op. at 19008-09.
Jones then applied the taser to Brooks’ clothed thigh in drive-stun mode. Brooks began to cry and started honking her car horn. Thirty-six seconds later, Jones applied the taser to Brooks’ bare left arm, and six seconds later he applied it to her neck. Brooks fell over in the car, and the officers were able to drag her out and handcuff her. Slip op. at 19009.
Brooks did not experience any lasting injuries from the tasing but sustained several permanent burn scars. Her daughter was born healthy approximately two months later. Brooks sued the City of Seattle, the police chief, and the involved officers for excessive force in violation of the Fourth Amendment, the City and the chief for negligence, and the officers for assault and battery. The officers moved for summary judgment on the grounds of qualified immunity. The district court denied the motion as to the excessive force claim, ruling that Brooks had alleged facts supporting a Fourth Amendment claim and that the officers were not entitled to qualified immunity. The officers appealed. Slip op. at 19009-10.
Addressing the excessive force question first, the Ninth Circuit held that a reasonable fact-finder could conclude that the officers’ use of force was constitutionally unreasonable and excessive. The Court found that Brooks had not committed a serious violation and that she did not pose a threat to the officers. While acknowledging that Brooks was actively resisting arrest and physically frustrating the officers’ efforts to remove her from the car, and that Brooks bore “some” responsibility for the escalation of the situation, the Court concluded that Brooks’ resistance did not involve violence towards the officer and she was not attempting to flee, so the situation was not urgent. In further support of this conclusion, the Court cited the fact that the officers were deliberate and thoughtful in their actions, and that no evidence was presented that their presence was needed elsewhere. Other facts important to the Court’s determination of excessive force, were that the officers knew Brooks was pregnant and that the officers tased her three times in less than one minute, purportedly giving her no time to recover and rethink her decision not to get out of the car. Slip op. at 19020-23.
This decision begs the question: What were the officers supposed to do? Let her go even though they had cause to arrest her? Wait there for hours hoping she would finally comply and exit the car? Forcibly pull her from the car by the arm, which could have caused more severe and permanent injury than a taser? Chief Judge Kozinski, concurring in the judgment but dissenting from the determination as to excessive force, stated that Brooks was lawfully under arrest but noncompliant, leaving officers with no alternative. Slip op. at 19040. An arrest “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id., quoting Graham v. Connor, 490 US at 396. Chief Judge Kozinski strongly disagreed with the majority’s dismissive statement that Brooks bore “some” of the responsibility for what happened:
Brooks is completely, wholly, 100 percent at fault. Had she behaved responsibly, she’d have driven away in a few minutes with no complications. Instead, Brooks risked harm to herself, her unborn daughter and three police officers because she got her dander up over a traffic ticket. The officers, for their part, were endlessly patient, despite being called liars and otherwise abused by Brooks. They deserve our praise, not the opprobrium of being declared constitutional violators. The City of Seattle should award them commendations for grace under fire.
Slip op. at 19042. Judge Silverman, also concurring in the judgment but dissenting from the determination as to excessive force, added, “There are only so many ways that a person can be extracted from a vehicle against her will, and none of them is pretty... In this case, tasing was a humane way to force Brooks out of her car, causing her only fleeting pain and virtually no other harm whatsoever.” Slip op. at 19046-47.
Still, the Ninth Circuit did ultimately determine that the officers were entitled to qualified immunity because the law in this area was not clearly established at the time of the incident. In November 2004, there were three federal circuit cases dealing with the use of tasers: Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992); Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993); and Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004). None of these cases found a Fourth Amendment violation arising from an officer’s use of a taser. Therefore, even though the Court did conclude that the tasing of Brooks constituted excessive force and violated the Fourth Amendment, the Court could not conclude that a reasonable officer would have known it constituted excessive force because there were no prior cases that would have given him or her that knowledge. Slip op. at 19024-28.
Jayzel Mattos
On August 23, 2006, in Maui, Hawaii, Jayzel and her husband Troy had a domestic dispute, and Jayzel asked their 14 year-old daughter to call the police. Officers Darren Agarano, Halayudha MacKnight, and Stuart Kunioka arrived and found Troy, who was approximately six feet three inches tall and 200 pounds, sitting at the top of the porch steps, smelling of alcohol, with open beer bottles lying nearby. Officer Ryan Aikala also responded shortly thereafter. Troy told Kunioka the he and Jayzel had an argument but nothing physical had occurred. Troy then became agitated and rude as Kunioka continued to question him. Kunioka asked to speak with Jayzel, and when Troy went inside to get Jayzel, Agarano stepped into the residence behind him. When Troy returned with Jayzel, he became angry at seeing Agarano inside the house, and yelled at him to get out. Jayzel had followed behind Troy, but ended up standing in front of him while on her way to the front door to speak with the officers. Slip op. at 19010-11.
Jayzel agreed to go outside to speak with the officers, but before she could comply with the request, Aikala entered the residence and announced that Troy was under arrest. Jayzel was standing in front of Troy and did not immediately move out of the way when Aikala approached. According to Jayzel, as Aikala moved in to arrest Troy, he pushed up against Jayzel’s chest, and she “extended [her] arm to stop [her] breasts from being smashed against Aikala’s body.” Aikala asked Jayzel, “Are you touching an officer?” At this time, Jayzel was speaking to Agarano, asking why Troy was being arrested and asking everyone to calm down and go outside so as not to wake her children. Then, apparently without warning, Aikala shot his taser at Jayzel in dart-mode. Jayzel and Troy were both arrested - Jayzel for harassment and obstructing government operations, Troy for harassment and resisting arrest. Slip op. at 19011.
The Mattoses sued the officers for violations of the Fourth, Fifth, and Fourteenth Amendments based on the warrantless entry into their home, the arrests, and the use of the taser on Jayzel. The officers moved for summary judgment, and the district court granted summary judgment for the officers on all claims except the Fourth Amendment excessive force claim for the tasing. The district court concluded it could not determine qualified immunity because there were material questions of fact as to whether the tasing was constitutionally reasonable. Slip op. at 19012. The officers appealed.
Just as in the Brooks matter, the Ninth Circuit held that a reasonable fact-finder could conclude that the use of force was constitutionally unreasonable and excessive. The Court has previously determined, in Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010), that a taser employed in dart-mode “constitute[s] an intermediate, significant level of force.” Slip op. at 19018, 19028, quoting Bryan, 630 F.3d at 826. (The Court had not determined what level of force is used when a taser is employed in drive-stun mode, as it was in the Brooks incident, and declined to make that determination in the Brooks case due to an insufficient record as to the level of force.) Slip op. at 19018-19.
The Court determined that, viewing the facts in the light most favorable to the Mattoses, Jayzel’s actions did not rise to the level of obstruction, as she claimed she was putting up her arm to stop Aikala from pressing up against her breasts, so “the severity of the crime, if any, was minimal.” Slip op. at 19029. Also important to the Court’s determination of excessive force was the fact that Jayzel was apparently unarmed, did not threaten the officers, and was trying to get everyone to calm down. Slip op. at 19029-30. With respect to whether Jayzel was resisting the officers’ arrest of Troy, the Court concluded that her resistance, if any, was minimal, as she was caught between Aikala and Troy and was trying to defend herself from physical contact. “That being said...Jayzel did not immediately move out of the way to facilitate the arrest. For the purposes of this Graham factor, however, we draw a distinction between a failure to facilitate an arrest and active resistance to arrest.” Slip op. at 19030. While acknowledging that domestic disputes are volatile and pose a potential threat to officer safety, the Court ultimately determined that it was unreasonable for Aikala to tase the “potential non-threatening victim of the domestic dispute whom the officers ostensibly came to protect,” particularly since Aikala gave Jayzel no warning before tasing her. Slip op. at 19030-32.
Nevertheless, for the same reason as in the Brooks case, the Court concluded that the law with respect to this violation was not clearly established at the time of the incident, so the officers were entitled to qualified immunity. Slip op. at 19034.
Consequences for law enforcement
The law regarding taser use has only begun to develop in recent years. As it continues to develop it will impact and shape the use of this device that has now been adopted by most law enforcement agencies as a non-lethal force alternative. While this case was a technical victory for the officers, in that they were awarded qualified immunity, the Court’s determination of excessive force in both incidents has set a precedent that affects what will be considered permissible use of a taser in situations where officers encounter a noncompliant subject. Of particular concern is the decision in the Malaika Brooks matter, where it was undisputed that Brooks was actively resisting arrest and physically preventing herself from being extracted from her car, yet the use of non-lethal force causing no lasting injury was determined to be excessive. This decision appears to have drastically reduced officers’ options for dealing with a physically noncompliant arrestee.
Judge Kozinski’s dissent summarizes the consequences of this ruling for law enforcement:
The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.
Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety.
Slip op. at 19046.
Stay Safe!
Mike Stone
Melanie Smith
Michael P. Stone is the firm’s founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 30 years, following 13 years as a police officer, supervisor and police attorney.
Melanie C. Smith is an associate with the firm and is a graduate of Loyola Law School, Los Angeles.
INVOLVING NONCOMPLIANT SUBJECTS
By Michael P. Stone and Melanie C. Smith, Attorneys at Law
The Ninth Circuit has issued a decision finding that excessive force was used in two incidents where officers utilized tasers against noncompliant subjects. Mattos v. Agarano, Docket No. 08-15567, was submitted and decided together with Brooks v. City of Seattle, Docket No. 08-35526. The opinion was issued on October 17, 2011. The issue in both cases was whether the defendant officers were entitled to qualified immunity from the plaintiffs’ claims of Fourth Amendment violations for unreasonable and excessive use of force.
The doctrine of qualified immunity shields a peace officer (or other government official) from civil liability for conduct that “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 US 800, 818 (1982). This balances the “need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 US 223, 231 (2009).
The qualified immunity determination is a two-step test: first, viewing the facts in the light most favorable to the plaintiff, the court must decide whether the officer violated the plaintiff’s constitutional right; if so, the court must decide whether the right was clearly established in the context of the specific case at the time of the event. Saucier v. Katz, 533 US 194, 201 (2001).
Whether a use of force is reasonable or whether it is excessive is determined by the facts of the situation, and involves balancing governmental interests against the nature of quality of the intrusion on the individual’s Fourth Amendment rights. Graham v. Connor, 490 US 386 (1989), guides this determination. Factors involved in determining the governmental interests at stake include: “(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.” Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994), citing Graham, 490 US at 396.
Whether a right was clearly established at the time of the event depends on whether it was “‘sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011), quoting Anderson v. Creighton, 483 US 635, 640 (1987). This does not require that there be case law exactly on point, but “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. This takes into account that officers are required to exercise their discretion while performing their official duties and are often called upon to make split-second decisions in uncertain or intense situations.
Applying this test in the Mattos/ Brooks cases, the Ninth Circuit determined that while the facts as alleged by the plaintiffs amounted to excessive force, the defendant officers were entitled to qualified immunity in both cases because the law regarding use of force with respect to tasers was not clearly established at the time of the incidents.
Malaika Brooks
On November 23, 2004, in Seattle, Washington, Brooks was driving her 11 year-old son to school. Brooks was seven months pregnant at the time. Brooks entered the 20-mile-per-hour school zone driving 32 miles per hour and was pulled over by police officer Juan Ornelas. Brooks’ son exited the car to go to school as Brooks gave her license to Ornelas. When Ornelas cited Brooks for speeding, Brooks insisted she had not been speeding and refused to sign the citation. Officer Donald Jones then asked her to sign the citation and explained that it was not an admission of guilt but a confirmation that she had received the citation. Brooks told Jones he was lying and continued to refuse. Jones advised her that if she did not sign the citation she would go to jail. Sergeant Steven Daman arrived and also asked Brooks to sign the citation. Brooks again refused. Slip op. at 19007-08.
Ornelas told Brooks to get out of the car because she was going to jail. Brooks refused to get out of the car. The car was still running at this point. Jones then pulled out a taser, showed it to Brooks, and asked if she knew what it was. Brooks indicated she did not know what it was, then informed the officers that she was pregnant. After learning this, the officers discussed where to tase Brooks. Ornelas then opened the car door and twisted Brooks’ behind her back, and Brooks stiffened her body and clutched the steering wheel to prevent the officers from pulling her out of the car. Jones cycled his taser, showing Brooks what it did. Around this time, Ornelas was able to remove the car keys from the ignition and drop them onto the floor of the car. Slip op. at 19008-09.
Jones then applied the taser to Brooks’ clothed thigh in drive-stun mode. Brooks began to cry and started honking her car horn. Thirty-six seconds later, Jones applied the taser to Brooks’ bare left arm, and six seconds later he applied it to her neck. Brooks fell over in the car, and the officers were able to drag her out and handcuff her. Slip op. at 19009.
Brooks did not experience any lasting injuries from the tasing but sustained several permanent burn scars. Her daughter was born healthy approximately two months later. Brooks sued the City of Seattle, the police chief, and the involved officers for excessive force in violation of the Fourth Amendment, the City and the chief for negligence, and the officers for assault and battery. The officers moved for summary judgment on the grounds of qualified immunity. The district court denied the motion as to the excessive force claim, ruling that Brooks had alleged facts supporting a Fourth Amendment claim and that the officers were not entitled to qualified immunity. The officers appealed. Slip op. at 19009-10.
Addressing the excessive force question first, the Ninth Circuit held that a reasonable fact-finder could conclude that the officers’ use of force was constitutionally unreasonable and excessive. The Court found that Brooks had not committed a serious violation and that she did not pose a threat to the officers. While acknowledging that Brooks was actively resisting arrest and physically frustrating the officers’ efforts to remove her from the car, and that Brooks bore “some” responsibility for the escalation of the situation, the Court concluded that Brooks’ resistance did not involve violence towards the officer and she was not attempting to flee, so the situation was not urgent. In further support of this conclusion, the Court cited the fact that the officers were deliberate and thoughtful in their actions, and that no evidence was presented that their presence was needed elsewhere. Other facts important to the Court’s determination of excessive force, were that the officers knew Brooks was pregnant and that the officers tased her three times in less than one minute, purportedly giving her no time to recover and rethink her decision not to get out of the car. Slip op. at 19020-23.
This decision begs the question: What were the officers supposed to do? Let her go even though they had cause to arrest her? Wait there for hours hoping she would finally comply and exit the car? Forcibly pull her from the car by the arm, which could have caused more severe and permanent injury than a taser? Chief Judge Kozinski, concurring in the judgment but dissenting from the determination as to excessive force, stated that Brooks was lawfully under arrest but noncompliant, leaving officers with no alternative. Slip op. at 19040. An arrest “necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id., quoting Graham v. Connor, 490 US at 396. Chief Judge Kozinski strongly disagreed with the majority’s dismissive statement that Brooks bore “some” of the responsibility for what happened:
Brooks is completely, wholly, 100 percent at fault. Had she behaved responsibly, she’d have driven away in a few minutes with no complications. Instead, Brooks risked harm to herself, her unborn daughter and three police officers because she got her dander up over a traffic ticket. The officers, for their part, were endlessly patient, despite being called liars and otherwise abused by Brooks. They deserve our praise, not the opprobrium of being declared constitutional violators. The City of Seattle should award them commendations for grace under fire.
Slip op. at 19042. Judge Silverman, also concurring in the judgment but dissenting from the determination as to excessive force, added, “There are only so many ways that a person can be extracted from a vehicle against her will, and none of them is pretty... In this case, tasing was a humane way to force Brooks out of her car, causing her only fleeting pain and virtually no other harm whatsoever.” Slip op. at 19046-47.
Still, the Ninth Circuit did ultimately determine that the officers were entitled to qualified immunity because the law in this area was not clearly established at the time of the incident. In November 2004, there were three federal circuit cases dealing with the use of tasers: Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992); Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993); and Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004). None of these cases found a Fourth Amendment violation arising from an officer’s use of a taser. Therefore, even though the Court did conclude that the tasing of Brooks constituted excessive force and violated the Fourth Amendment, the Court could not conclude that a reasonable officer would have known it constituted excessive force because there were no prior cases that would have given him or her that knowledge. Slip op. at 19024-28.
Jayzel Mattos
On August 23, 2006, in Maui, Hawaii, Jayzel and her husband Troy had a domestic dispute, and Jayzel asked their 14 year-old daughter to call the police. Officers Darren Agarano, Halayudha MacKnight, and Stuart Kunioka arrived and found Troy, who was approximately six feet three inches tall and 200 pounds, sitting at the top of the porch steps, smelling of alcohol, with open beer bottles lying nearby. Officer Ryan Aikala also responded shortly thereafter. Troy told Kunioka the he and Jayzel had an argument but nothing physical had occurred. Troy then became agitated and rude as Kunioka continued to question him. Kunioka asked to speak with Jayzel, and when Troy went inside to get Jayzel, Agarano stepped into the residence behind him. When Troy returned with Jayzel, he became angry at seeing Agarano inside the house, and yelled at him to get out. Jayzel had followed behind Troy, but ended up standing in front of him while on her way to the front door to speak with the officers. Slip op. at 19010-11.
Jayzel agreed to go outside to speak with the officers, but before she could comply with the request, Aikala entered the residence and announced that Troy was under arrest. Jayzel was standing in front of Troy and did not immediately move out of the way when Aikala approached. According to Jayzel, as Aikala moved in to arrest Troy, he pushed up against Jayzel’s chest, and she “extended [her] arm to stop [her] breasts from being smashed against Aikala’s body.” Aikala asked Jayzel, “Are you touching an officer?” At this time, Jayzel was speaking to Agarano, asking why Troy was being arrested and asking everyone to calm down and go outside so as not to wake her children. Then, apparently without warning, Aikala shot his taser at Jayzel in dart-mode. Jayzel and Troy were both arrested - Jayzel for harassment and obstructing government operations, Troy for harassment and resisting arrest. Slip op. at 19011.
The Mattoses sued the officers for violations of the Fourth, Fifth, and Fourteenth Amendments based on the warrantless entry into their home, the arrests, and the use of the taser on Jayzel. The officers moved for summary judgment, and the district court granted summary judgment for the officers on all claims except the Fourth Amendment excessive force claim for the tasing. The district court concluded it could not determine qualified immunity because there were material questions of fact as to whether the tasing was constitutionally reasonable. Slip op. at 19012. The officers appealed.
Just as in the Brooks matter, the Ninth Circuit held that a reasonable fact-finder could conclude that the use of force was constitutionally unreasonable and excessive. The Court has previously determined, in Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010), that a taser employed in dart-mode “constitute[s] an intermediate, significant level of force.” Slip op. at 19018, 19028, quoting Bryan, 630 F.3d at 826. (The Court had not determined what level of force is used when a taser is employed in drive-stun mode, as it was in the Brooks incident, and declined to make that determination in the Brooks case due to an insufficient record as to the level of force.) Slip op. at 19018-19.
The Court determined that, viewing the facts in the light most favorable to the Mattoses, Jayzel’s actions did not rise to the level of obstruction, as she claimed she was putting up her arm to stop Aikala from pressing up against her breasts, so “the severity of the crime, if any, was minimal.” Slip op. at 19029. Also important to the Court’s determination of excessive force was the fact that Jayzel was apparently unarmed, did not threaten the officers, and was trying to get everyone to calm down. Slip op. at 19029-30. With respect to whether Jayzel was resisting the officers’ arrest of Troy, the Court concluded that her resistance, if any, was minimal, as she was caught between Aikala and Troy and was trying to defend herself from physical contact. “That being said...Jayzel did not immediately move out of the way to facilitate the arrest. For the purposes of this Graham factor, however, we draw a distinction between a failure to facilitate an arrest and active resistance to arrest.” Slip op. at 19030. While acknowledging that domestic disputes are volatile and pose a potential threat to officer safety, the Court ultimately determined that it was unreasonable for Aikala to tase the “potential non-threatening victim of the domestic dispute whom the officers ostensibly came to protect,” particularly since Aikala gave Jayzel no warning before tasing her. Slip op. at 19030-32.
Nevertheless, for the same reason as in the Brooks case, the Court concluded that the law with respect to this violation was not clearly established at the time of the incident, so the officers were entitled to qualified immunity. Slip op. at 19034.
Consequences for law enforcement
The law regarding taser use has only begun to develop in recent years. As it continues to develop it will impact and shape the use of this device that has now been adopted by most law enforcement agencies as a non-lethal force alternative. While this case was a technical victory for the officers, in that they were awarded qualified immunity, the Court’s determination of excessive force in both incidents has set a precedent that affects what will be considered permissible use of a taser in situations where officers encounter a noncompliant subject. Of particular concern is the decision in the Malaika Brooks matter, where it was undisputed that Brooks was actively resisting arrest and physically preventing herself from being extracted from her car, yet the use of non-lethal force causing no lasting injury was determined to be excessive. This decision appears to have drastically reduced officers’ options for dealing with a physically noncompliant arrestee.
Judge Kozinski’s dissent summarizes the consequences of this ruling for law enforcement:
The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.
Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety.
Slip op. at 19046.
Stay Safe!
Mike Stone
Melanie Smith
Michael P. Stone is the firm’s founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 30 years, following 13 years as a police officer, supervisor and police attorney.
Melanie C. Smith is an associate with the firm and is a graduate of Loyola Law School, Los Angeles.
Wednesday, November 9, 2011
Reflections on Ohio vote to restore collective bargaining rights for public employees including police
American Police Beat
www.apbweb.com
November 9, 2011
By Mark Nichols
If you work for Koch Industries or any of their tentacle organizations like Americans for Prosperity, the Cato Institute or the American Legislative Exchange Council (ALEC), yesterday was as big a defeat as the 2010 Congressional elections were a victory.
The good people of the Great State of Ohio, in a stunning rebuke to the anti-union agenda of Governor John Kasich, overwhelmingly voted down legislation designed to kill public sector unions by a roughly three-to-one margin.
While there were many significant votes across the country yesterday, none are more important than the defeat of SB-5, also known as issue 2. The victory for middle class teachers, cops, firefighters and other public sector employees is seen by many as an indication that similar legislation in states like Michigan, Florida, New Jersey and most notably Wisconsin are likely to be challenged by voters.
Also likely to be challenged are the state officials that have enacted union-busting legislation- most notably Wisconsin Governor Scott Walker.
Here’s what the people of Ohio decided went too far- SB-5 would have abolished the collective bargaining rights of employees of the state, of any agency, authority, commission, or board of the state, and of any state institution of higher education. It would have prohibited the state, agencies, authorities, commissions, and boards of the state, and a state institution of higher education from collectively bargaining with its employees. The legislation also would have abolished the Office of Collective Bargaining.
Kasich saw the writing on the wall months ago when poling indicated that voters were likely to vote his plan down and made desperate pleas for the people who’s right to bargain for wages and benefits he was trying to eliminate to negotiate with the governor.
And perhaps if the legislation had been more restrained, focusing on pension reform rather than throwing the baby out with the bath water and just outlawing unions, labor leaders might have taken mercy on Kasich and started good faith negotiations.
But as the saying goes, you mess with the bull- you get the horns. Labor leaders from all walks of life refused to give Kasich an “out,” by affording him the courtesy and respect he denied them when he passed SB-5 without negotiations.
Kasich, who famously once called a police officer an idiot for giving him a ticket, is now manning the damage control pumps.
“It’s clear the people have spoken,” a forlorn looking Kasich said at a press conference. “My view is when people speak in a campaign like this, in a referendum, you have to listen.”
Another way of expressing that sentiment might be, “I tried to sneak one past my constituents on behalf of corporate interests and my financial backers but I got my butt kicked. Please don’t kick me out of office.”
Wisconsin Governor Scott Walker, another union buster, is so worried about the increasingly likely possibility of being recalled that Walker’s own supporters filed the first recall petition. Why? Because under the law once a recall petition is filed the target can raise unlimited cash to fight off the challenge.
Like Kasich, Walker has connections with the billionaire Koch Brothers that could be tapped to throw millions at undermining efforts of state voters to replace their own governor.
But that’s what’s so significant about the Ohio vote yesterday. It’s a lesson in the timeless strategy of strength in numbers. If Americans for Prosperity had just SB-5 to worry about, they very well may have been able to outspend organized labor in the SB5 campaigns.
But the Koch Brothers want an SB5 and even more drastic legislation enacted in every state in the country. As a result they have to spend their political money accordingly and spread it evenly through their PACs and think tanks. That means that organized labor can outspend, out-lobby and out-campaign groups like the Chamber of Commerce and ALEC at the state level if there’s enough popular support.
At the federal level things are more complicated. Americans for Prosperity says it plans to spend in excess of $200 million on the 2012 election.
Pundits and observers disagree about whether the vote in Ohio represents a shift away from the trend of conservative dominance in public policy and state legislation seen in recent years.
But what’s becoming crystal clear is that the vast majority of Americans, at least in Ohio, didn’t fall for the lie that public sector workers’ wages and benefits are as big a threat to the economy as things like the deregulation of the financial sector and the fact that many billion dollar multi-national American corporations like GE not only pay no federal income taxes- they actually get a check from the IRS.
www.apbweb.com
November 9, 2011
By Mark Nichols
If you work for Koch Industries or any of their tentacle organizations like Americans for Prosperity, the Cato Institute or the American Legislative Exchange Council (ALEC), yesterday was as big a defeat as the 2010 Congressional elections were a victory.
The good people of the Great State of Ohio, in a stunning rebuke to the anti-union agenda of Governor John Kasich, overwhelmingly voted down legislation designed to kill public sector unions by a roughly three-to-one margin.
While there were many significant votes across the country yesterday, none are more important than the defeat of SB-5, also known as issue 2. The victory for middle class teachers, cops, firefighters and other public sector employees is seen by many as an indication that similar legislation in states like Michigan, Florida, New Jersey and most notably Wisconsin are likely to be challenged by voters.
Also likely to be challenged are the state officials that have enacted union-busting legislation- most notably Wisconsin Governor Scott Walker.
Here’s what the people of Ohio decided went too far- SB-5 would have abolished the collective bargaining rights of employees of the state, of any agency, authority, commission, or board of the state, and of any state institution of higher education. It would have prohibited the state, agencies, authorities, commissions, and boards of the state, and a state institution of higher education from collectively bargaining with its employees. The legislation also would have abolished the Office of Collective Bargaining.
Kasich saw the writing on the wall months ago when poling indicated that voters were likely to vote his plan down and made desperate pleas for the people who’s right to bargain for wages and benefits he was trying to eliminate to negotiate with the governor.
And perhaps if the legislation had been more restrained, focusing on pension reform rather than throwing the baby out with the bath water and just outlawing unions, labor leaders might have taken mercy on Kasich and started good faith negotiations.
But as the saying goes, you mess with the bull- you get the horns. Labor leaders from all walks of life refused to give Kasich an “out,” by affording him the courtesy and respect he denied them when he passed SB-5 without negotiations.
Kasich, who famously once called a police officer an idiot for giving him a ticket, is now manning the damage control pumps.
“It’s clear the people have spoken,” a forlorn looking Kasich said at a press conference. “My view is when people speak in a campaign like this, in a referendum, you have to listen.”
Another way of expressing that sentiment might be, “I tried to sneak one past my constituents on behalf of corporate interests and my financial backers but I got my butt kicked. Please don’t kick me out of office.”
Wisconsin Governor Scott Walker, another union buster, is so worried about the increasingly likely possibility of being recalled that Walker’s own supporters filed the first recall petition. Why? Because under the law once a recall petition is filed the target can raise unlimited cash to fight off the challenge.
Like Kasich, Walker has connections with the billionaire Koch Brothers that could be tapped to throw millions at undermining efforts of state voters to replace their own governor.
But that’s what’s so significant about the Ohio vote yesterday. It’s a lesson in the timeless strategy of strength in numbers. If Americans for Prosperity had just SB-5 to worry about, they very well may have been able to outspend organized labor in the SB5 campaigns.
But the Koch Brothers want an SB5 and even more drastic legislation enacted in every state in the country. As a result they have to spend their political money accordingly and spread it evenly through their PACs and think tanks. That means that organized labor can outspend, out-lobby and out-campaign groups like the Chamber of Commerce and ALEC at the state level if there’s enough popular support.
At the federal level things are more complicated. Americans for Prosperity says it plans to spend in excess of $200 million on the 2012 election.
Pundits and observers disagree about whether the vote in Ohio represents a shift away from the trend of conservative dominance in public policy and state legislation seen in recent years.
But what’s becoming crystal clear is that the vast majority of Americans, at least in Ohio, didn’t fall for the lie that public sector workers’ wages and benefits are as big a threat to the economy as things like the deregulation of the financial sector and the fact that many billion dollar multi-national American corporations like GE not only pay no federal income taxes- they actually get a check from the IRS.
Thursday, November 3, 2011
Atlantic Monthly review of new book on NYPD and drop in crime
The City That Became Safe
By Franklin E. Zimring
Oxford
In the 1960s, ’70s, and ’80s, New Yorkers lived in intense, growing—and entirely reasonable—fear of being robbed, raped, or killed. But in less than a generation, their city has undergone the largest and longest decline in street crime that any major metropolis has ever experienced. Rates of homicide, stranger assault, robbery, and burglary have fallen 80 percent or more—an accomplishment that experts would have thought impossible 30 years ago. In a feat of clear-eyed analysis, Franklin E. Zimring, a law professor at Berkeley, assesses the causes of this unprecedented public-safety achievement. He unpacks his evidence meticulously, synthesizes disparate and difficult materials economically, and addresses counterarguments methodically—and in the process explodes myths and shibboleths embraced by both the left and the right.
Piecing together the demographic data, Zimring shows that the city became safer, but not because of any shift in the ethnicity or income level of its population. In fact, New York’s racial and ethnic profile changed in ways that would normally point to an increase in crime. Moreover, although he’s a political liberal, Zimring demolishes the proposition that a drop in crime depends on an improvement of underlying social and economic conditions. New York’s sustained, broad, and deep drop in violent crime occurred despite the city’s glaring economic inequality, its stubbornly unyielding poverty, educational deficiencies, number of “fatherless high-risk youth,” and the “social isolation” of its underclass.
But if Zimring’s assessment will vex knee-jerk progressives, it will equally irk law-and-order types. Violent crime dropped precipitously in New York, even as the sale and use of illegal drugs remained stable. The city is winning the war on crime without scoring the smallest victory in the war on drugs. And New York achieved its stunning success even as it let a relatively large number of criminals run free on the streets: the rate at which the city filled its jails and the state’s prisons is well below the national pattern.
Policing, it turns out, is the crucial factor in the city’s crime decline—but why, exactly? Zimring can’t put his finger on which specific techniques, strategies, and programs worked. Almost certainly the NYPD’s growth, management reforms, and use of statistical analysis (the so-called Compstat program) helped. Incontrovertibly, Zimring says, the NYPD’s focus on pacifying “hot spots”—areas with long and deep histories of violent crime—and eradicating open-air drug markets stanched crime. But these tactics involve very aggressive street policing, which is a broader strategy entailing a lavish number of “stop and frisks” and misdemeanor arrests. Although New York’s police made half a million such stops and 200,000 such arrests in 2009, Zimring, a scrupulous scholar, is willing to go only as far as the evidence will take him—and he has stated cautiously that this strategy “is the biggest and most costly police change with an unknown impact.” I infer that Zimring suspects that these aggressive street stops were in fact a decisive weapon in the NYPD’s arsenal—and that he’s troubled by that suspicion.
Let’s not pussyfoot: the line between aggressive policing and bullying is very fine, and regardless of the sensitivity of the police and the forbearance of the citizenry, it’s a line that’s perforce crossed daily. Another term for the misdemeanor arrests that Zimring discusses is pretextual arrest. Policing is at best a blunt instrument, and those on the receiving end of police aggressiveness are almost always those with the least recourse to protect their rights and their dignity.
But just as the costs of aggressive crime control are disproportionately borne by the disadvantaged, so too have been the benefits: the reduction in crime is one of the few public goods in New York—that global center of capitalism red in tooth and claw—that is truly progressive, benefiting disproportionately the poor and vulnerable, who need it most.
By Franklin E. Zimring
Oxford
In the 1960s, ’70s, and ’80s, New Yorkers lived in intense, growing—and entirely reasonable—fear of being robbed, raped, or killed. But in less than a generation, their city has undergone the largest and longest decline in street crime that any major metropolis has ever experienced. Rates of homicide, stranger assault, robbery, and burglary have fallen 80 percent or more—an accomplishment that experts would have thought impossible 30 years ago. In a feat of clear-eyed analysis, Franklin E. Zimring, a law professor at Berkeley, assesses the causes of this unprecedented public-safety achievement. He unpacks his evidence meticulously, synthesizes disparate and difficult materials economically, and addresses counterarguments methodically—and in the process explodes myths and shibboleths embraced by both the left and the right.
Piecing together the demographic data, Zimring shows that the city became safer, but not because of any shift in the ethnicity or income level of its population. In fact, New York’s racial and ethnic profile changed in ways that would normally point to an increase in crime. Moreover, although he’s a political liberal, Zimring demolishes the proposition that a drop in crime depends on an improvement of underlying social and economic conditions. New York’s sustained, broad, and deep drop in violent crime occurred despite the city’s glaring economic inequality, its stubbornly unyielding poverty, educational deficiencies, number of “fatherless high-risk youth,” and the “social isolation” of its underclass.
But if Zimring’s assessment will vex knee-jerk progressives, it will equally irk law-and-order types. Violent crime dropped precipitously in New York, even as the sale and use of illegal drugs remained stable. The city is winning the war on crime without scoring the smallest victory in the war on drugs. And New York achieved its stunning success even as it let a relatively large number of criminals run free on the streets: the rate at which the city filled its jails and the state’s prisons is well below the national pattern.
Policing, it turns out, is the crucial factor in the city’s crime decline—but why, exactly? Zimring can’t put his finger on which specific techniques, strategies, and programs worked. Almost certainly the NYPD’s growth, management reforms, and use of statistical analysis (the so-called Compstat program) helped. Incontrovertibly, Zimring says, the NYPD’s focus on pacifying “hot spots”—areas with long and deep histories of violent crime—and eradicating open-air drug markets stanched crime. But these tactics involve very aggressive street policing, which is a broader strategy entailing a lavish number of “stop and frisks” and misdemeanor arrests. Although New York’s police made half a million such stops and 200,000 such arrests in 2009, Zimring, a scrupulous scholar, is willing to go only as far as the evidence will take him—and he has stated cautiously that this strategy “is the biggest and most costly police change with an unknown impact.” I infer that Zimring suspects that these aggressive street stops were in fact a decisive weapon in the NYPD’s arsenal—and that he’s troubled by that suspicion.
Let’s not pussyfoot: the line between aggressive policing and bullying is very fine, and regardless of the sensitivity of the police and the forbearance of the citizenry, it’s a line that’s perforce crossed daily. Another term for the misdemeanor arrests that Zimring discusses is pretextual arrest. Policing is at best a blunt instrument, and those on the receiving end of police aggressiveness are almost always those with the least recourse to protect their rights and their dignity.
But just as the costs of aggressive crime control are disproportionately borne by the disadvantaged, so too have been the benefits: the reduction in crime is one of the few public goods in New York—that global center of capitalism red in tooth and claw—that is truly progressive, benefiting disproportionately the poor and vulnerable, who need it most.
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