As spring turns to summer in much of the United States, video of looting and rioting in Minneapolis dredges up an unnerving feeling reminiscent of the social discontent that swept across America in the 1960s. It was the worst of times as some of our readers may remember:
In 1965, Watts exploded after riots broke out over the arrest of a 21-year-old black motorist. In 1967, racial tension over profiling turned to riots in Newark, New Jersey that resulted in 26 dead, 725 injured, and $10 million in property damage. In 1968, it was mayhem and madness following the shooting of Martin Luther King, Jr. Of course, there was Crowne Heights in 1991, Rodney King in 1992, Ferguson in 2014 - but you get the picture. So here we are again, and a crucial, indeed a vital question looms: What have we learned and can we find a constructive way to move forward?
To answer these questions and perhaps provide more light than heat on this race relation powder keg, we’ve asked Liberty Nation’s Legal Affairs Editor, Scott D. Cosenza, Esq. to connect the dots between what is happening in Minneapolis and the Fourth Amendment.
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Leesa K. Donner: Scott, if you had to put together a road map to a future of better race relations in this country, what are a few elements within our criminal justice system that you would suggest changing?
Scott D. Cosenza: First of all, we need to eliminate “quota” policing and policing for profit. Police are currently incentivized to generate negative contacts with the citizenry and to escalate those encounters. Second, as a matter of policy, we need to dial back drug war encroachments on civil liberties. Stop and frisk and driving while black charges are the step-children of the drug war and its legal legacy. And finally, we must take a close look at how police are hired and retained. Officers should be easier to fire for poor performance and public sector unions should never control how the public is policed.
LKD: Fair enough. It’s fascinating to recognize that in all three instances you are talking about less – not more – of everything. Dial back the drug war, less control by the unions, and the elimination of quotas. Can you outline what you mean by policing for profit?
SDC: Policing for profit is the now common truth that police officers are used to increase revenue for the government agencies they work for, not to protect and serve the people. The awesome power of detention and arrest can't be motivated by the opportunity to take money from the citizenry's pocket. This manifests itself in the officer who positions his cruiser at the precise place where the speed limit drops from 55 to 45 but there is no sign. Also, when the command staff tells the rank and file they need to write x number of tickets or they will find themselves in trouble when their performance is reviewed.
This type of policing encourages real victims of crime to distrust the police and feel they are not helpful agents, but fearsome ones. Then, while police are out soft-pedaling genuine criminal acts, they are busting citizens who break no laws to pad stop and frisk logs. Is it any wonder so many people show such abject contempt for the police? All that's needed to end these policies is the political will to do so.
LKD: How does the drug war fit into this? Why is it part and parcel of ratcheting up the racial tension in this country? After all, in the two recent situations – the one with Ahmed Arbery and now with George Floyd – neither had anything to do with drugs.
SDC: Well that may not be entirely true in the case of Mr. Floyd. The police officer doing crowd control while his colleague had his knee to Floyd’s neck said multiple times in response to the pleas of bystanders, “This is why you shouldn't do drugs.” At this point, we do not know if Floyd was high or not, but the inhumanity of his treatment has the look and smell of the sins and wages of the drug war. So, what we have is a situation where instead of seeing drug users as humans who should be left alone or perhaps in need of intervention and treatment, police see and treat them as common criminals.
Even if this were not true, the drug war's negative impact on predominantly black communities cannot be understated. This is hardly new or progressive. William F. Buckley Jr. wrote 25 years ago that "it is outrageous to live in a society whose laws tolerate sending young people to life in prison" over marijuana. While the laws regarding marijuana have changed in so many jurisdictions, that damage and scar tissue will take time to heal. Buckley wrote that long sentences for marijuana users were equivalent to wartime zeal on the order of the My Lai massacre.
There are two factors at play here: the ease with which detected marijuana use opens a person up to police examination, and the ease with which the accusation of smelling marijuana allows police to detain, search, and sometimes harass members of the public. Stated more simply, a "good" cop – looking to make every case they can, to garner as many stats – can use marijuana's prohibition and common use to violate many users of it. Since it is easier to arrest someone who is outdoors and on the streets when using, this type of policing hurts poor people way more than those with the means for private spaces. For bad cops, however, the ability to claim "I smelled marijuana" to justify the search of just about any person or car has meant a generation of Americans subject to the whims of officers willing to lie in order to justify their actions.
LKD: How does all this racial unrest and what appears to be questionable actions on the part of law enforcement connect to the Fourth Amendment?
SDC: One of the driving forces of all this tension between the police and the policed is that the people feel like subjects, not citizens. For instance, there is a prevailing sense that law enforcement officers now commonly believe that they can pat someone down to search for weapons, without any cause or reasonable suspicion at all. This is where the Fourth Amendment comes in.
The Fourth Amendment has been dialed back to become a barely recognizable shell of its former self. The change came not as single event, but a process in response to the seismic forces of the drug war. Under constant pressure from federal and state police – an unrelenting attack against the kind of protections that keep police out of our lives – the courts dialed back our privacy. It's risky to channel the Founders, deciding how they would settle a present-day argument. Here though, it seems safe ground to suggest the authors of the Fourth Amendment would find stop-and-frisk abhorrent.
By returning to a time when police needed a better reason to stop or impede someone, there will be far fewer interactions from which resentment can build. Because of its widespread use and commonly smoked delivery method, marijuana prohibition has been at the vanguard of our shrinking rights. Now that the tide has turned and a future where marijuana is increasingly legal for adults, perhaps those protections can start to be dialed back. To achieve this change quickly would require a concerted effort in the courts or state legislatures – but it is not an impossibility. It is time – perhaps long past time – that we begin to use these tragic situations for good and make some changes so that the Founders' vision of a free people operating within a just society can flourish. One thing is for certain – more government is not the answer.
