Behzad Mirhashem, University of New Hampshire

What the Fourth Amendment to the U.S. Constitution means when it protects citizens against an unreasonable search by government agents isn’t entirely clear. It certainly includes police physically entering a person’s home, but for almost 100 years, the Supreme Court has tried to define what else might qualify, including keeping the law up-to-date with new technologies – as a recent case illustrates.

File 20180723 189326 uj3z9t.jpg?ixlib=rb 1.1 — Beyond a physical inspection, what constitutes a search? AP Photo/Jessica Hill

In that case, the FBI used cellphone records to show that a crime suspect’s mobile phone had been near the location of several robberies. The agency had gotten those records, without a warrant, from the company that provided the suspect with mobile service. The suspect argued that because the records were so invasive of his privacy – by revealing his physical locations over a period of time – obtaining them should be considered a search under the Constitution, and therefore require a warrant. The Supreme Court agreed.

To someone like me, who teaches law students about the relationship between the Constitution and police investigations, this case is another milestone in the back-and-forth between the police and the citizenry over technology and privacy.

An early wiretapping case

Justice Louis Brandeis. Harris and Ewing, Library of Congress

As technology has developed, police have found new ways of collecting incriminating information without trespassing onto the suspect’s property. A century ago, police were beginning to tap phone lines to listen in on suspects’ conversations. In 1928, the Supreme Court ruled that wiretaps didn’t need warrants, so long as police didn’t enter the target’s own property to install the wires. The Supreme Court said the Fourth Amendment was concerned only with protecting material things, such as a person’s home or papers.

The decision came with a notable dissent from Justice Louis Brandeis, who argued that police listening in on phone conversations was indeed a search, because the Constitution’s authors meant to protect more than just tangible property:

“They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”

Expectation of privacy and the risk of sharing information

In 1967, the Supreme Court decided that Brandeis was right after all. Limiting the Fourth Amendment to material searches left too much of modern life completely outside the protections of the Constitution. Explaining that the Fourth Amendment protects people, not places, the justices ruled that police tapping into a private phone conversation – in that case by attaching a listening device to the outside of a public telephone booth – was a search.

In its decision, the Supreme Court created a new way of thinking about what is a search: As long as an individual is seeking to preserve something as private, and his expectation of privacy is one that society as a whole recognizes as reasonable, then official intrusion is a search. For example, when a person steps into a phone booth and closes the door, he is seeking to have a private conversation, and reasonably expects that the call will remain private from those outside the phone booth. Therefore, tapping into that call is a search.

But in the 1970s and 1980s, the Supreme Court narrowed the protection, for instance declaring that police didn’t need a warrant to find out what number the person called. The logic went that the caller voluntarily shared the recipient’s number with the phone company, and therefore willingly took the risk that it might be shared with police.

Privacy protections reemerge

In the past two decades, though, the Supreme Court has expanded Fourth Amendment protections against police searches. In 2001, the Supreme Court concluded that police needed to get a warrant before using a thermal imager to spot a marijuana growing operation inside a house. In 2012, the justices ruled officers needed a warrant before placing a GPS tracker on a suspect’s car. Add to these the most recent decision, that obtaining a person’s historical cell tower location data also requires a warrant.

The justices – like society as a whole – are increasingly recognizing that new technologies, especially digital ones, pose growing privacy challenges. For example, the Supreme Court said a few years ago that, while police could still search a person after their arrest without a warrant, they needed one to search the data on the arrested person’s cellphone.

In its most recent decision, the Supreme Court noted that cell service providers save cell tower data for five years. That kind of information can reveal a huge amount about a person’s private life, especially when coupled with additional information that may be publicly available.

Smartphones have become an integral part of modern life over the past decade – and using one inherently involves sharing location data with the cell company. The justices have realized that regular people aren’t willing to accept the risk that participating in modern society means police could discover their movements over the previous five years without even getting a warrant.

A potential new rationale

The justices are also increasingly focused on the Fourth Amendment’s language and history. The Fourth Amendment says nothing about privacy as such, but establishes the “right of the people to be secure in their persons, houses, papers and effects.”

Justice Neil Gorsuch. U.S. Supreme Court

In the cell tower case, the newest justice, Neil Gorsuch, dissented from the privacy reasoning of the majority’s decision, saying courts should stick more closely to the original text of the Fourth Amendment. But he then went on to say that the Supreme Court could interpret “papers and effects” to include digital information.It remains to be seen whether the Supreme Court will extend Fourth Amendment protections to emails stored on Gmail or Microsoft servers, or to password-protected websites people use to share photos with family and friends. As digital technology evolves and integrates into people’s lives in new ways, the Supreme Court will continue to wrestle with how to interpret the static text of the Fourth Amendment, adopted in 1791, in the 21st century.

Republished with permission under license from The Conversation.

Behzad Mirhashem, Associate Professor of Law and Director of Criminal Practice Clinic, University of New Hampshire

Criminal Law, Massacre, Race

Race of mass shooters influences how the media cover their crimes, new study shows

July 27, 2018 MuniCourts

By Laura Frizzell, Sadé L. Lindsay, and Scott Duxbury, The Ohio State University

On Jan. 24, 2014, police found Josh Boren, a 34-year-old man and former police officer, dead in his home next to the bodies of his wife and their three children. The shots were fired execution-style on Boren’s kneeling victims, before he turned the gun on himself.

On Aug. 8, 2015, 48-year-old David Ray Conley shot and killed his son, former girlfriend and six other children and adults at his former girlfriend’s home. Like Boren, Conley executed the victims at point-blank range.

Both men had histories of domestic violence and criminal behavior. Yet despite the obvious similarities in these two cases and perpetrators, the media, in each case, took a different approach.

If news reports mention a shooter's tought childhood, chances are he's white.

When describing Boren, the media focused on his good character and excellent parenting, going as far to call Boren a big “teddy bear” despite a prolonged history of domestic violence. They attributed his crime to “snapping” under the significant stress of his wife’s recent divorce filing.

In Conley’s case, media reports made little attempt to include any redeeming aspects of his personality. Instead, they focused exclusively on Conley’s history of domestic violence and prior drug possession charges. If you were to read articles about Conley, you would likely infer his crime stemmed from his inherently dangerous and controlling personality.

What might explain the differences in media coverage? Could it have something to do with the shooter’s race?

Boren, it turns out, was white; Conley was black.

In a recent study, we explored whether the race of mass shooters influences how the media depict their crime, their motivations and their lives.

We found that the discrepancies in the media coverage of Boren’s and Conley’s crimes were indicative of a broader phenomenon.

Explaining the crime, portraying the criminal

For the study, we randomly selected 433 online and print news articles covering 219 mass shootings from 2013 to 2015. While definitions of a mass shooting can vary, we adhered to the one most commonly used in empirical research: an event in which four or more people are shot, excluding the shooter.

Next, we created a unique data set based on information provided in the articles. We coded each article for a variety of variables associated with the crime and the shooter, including setting of the shooting, number and gender of victims killed and injured and age of the shooter.

After analyzing the data, we found that the shooter’s race could strongly predict whether the media framed him as mentally ill. (Less than 1 percent of the crimes had a female perpetrator.)

In all, about 33 percent of the articles in our study describing the crimes of a white shooter made a mention of mental illness. On the other hand, 26 percent of articles describing a Latino shooter and only two percent of articles describing a black shooter mentioned mental illness.

In fact – holding all aspects of the crime equal – white shooters were nearly 95 percent more likely to have their crimes attributed to mental illness than black shooters. Latino shooters were 92 percent more likely than black shooters to have mental illness mentioned as a factor.

An empathy gap

Furthermore, those articles that did describe a white shooter as mentally ill would often suggest that the shooter had been a generally good person who was a victim of society. The shooting, in other words, was out of character.

For example, in one case, a shooter in a rural trailer park set up a rifle in some bushes and began firing at the family trailer, with his wife, father-in-law and two young children inside. When the police arrived, he turned the rifle on them, hitting two officers before they gunned him down.

Yet subsequent news coverage noted his generally quiet demeanor and his willingness to help family and friends. The man who committed these crimes, one article noted, “wasn’t the same person who loved back-porch cookouts.”

However, such narratives – even within articles that mentioned mental illness – were less common when the shooter was black or Latino.

The graph below includes all news articles in our sample that framed a shooting as stemming from mental illness.

The chart shows the proportion of thematic narratives by race within the mental illness subsample.

Business, Military, Politics

Why Trump hasn’t been impeached – and likely won’t be

July 23, 2018 MuniCourts

Before Donald Trump took the oath of office, we published, "Billionaire President Equals Massive Military Industrial Complex Profits," which questioned the motives of a billionaire seeking the presidency. There are 2,208 Billionaires with a combined worth of over 9 trillion dollars, which is about half the total U.S. GDP.

This elite club employs and controls millionaires. Billionaire NFL owners are using money in an attempt to control player protest. Similar methods can be used to control politicians through contributions, book deals, speaking engagements, and other perks including high-end employment opportunities after they leave office.

As long as Trump continues to assist billionaires to increase their wealth, it is not in their best interest to have him removed from office. Politicians who don't want billionaires contributing to their opponent's campaigns are held hostage. The five corporations who control the majority of the media are using the ancient Roman philosophy panem et circenses (bread and circuses); a phrase that means to generate public approval, not by excellence in public service or public policy, but by diversion, distraction or by satisfying the most immediate or base requirements of a populace – a diet of entertainment or political policies on which the masses are fed to keep them happy and docile.

The media creates a circus atmosphere by highlighting the latest buffoonery of Trump, the circus clown, and distracts away from policies that hurt the environment, siphons public money from social programs to provide grants, tax abatements and other incentives to corporations and wealthy individuals.

File 20180717 44100 1jhy149.jpg?ixlib=rb 1.1 — Trump with the men who would replace him – Vice President Mike Pence on the left and House Speaker Paul Ryan on the left. Win McNamee/AP Pool

Editor’s note: Removing a president from office is a two-step process. The first step is impeachment. That’s when members of the House indict, or charge, an official with an impeachable offense. Impeachment does not remove the president from office. That only happens if a second step is taken and the president is convicted of the alleged crimes.

Jacob Neiheisel, an assistant professor at the University at Buffalo, SUNY answers five questions about how impeachment works.

1. What sort of crime can lead to impeachment?

The U.S. Constitution states that the president can be removed from office after being both impeached and convicted for “Treason, Bribery, or other High Crimes and Misdemeanors.”

Treason is notoriously difficult to prove. For example, Aaron Burr – a former vice president – was caught stockpiling supplies and gathering a force to take over some of the lands that would eventually be obtained through the Louisiana Purchase. And yet, he still wasn’t convicted of treason.

To date, no president has been charged with bribery.

What exactly constitutes a “high crime” or “misdemeanor” has always been open to interpretation, but it is clear that partisan politics plays a role.

Scholars argue that Andrew Johnson, the first American president to be impeached, was targeted because of his “soft” approach to states of the former Confederacy during Reconstruction. The official reason was his violation of the Tenure of Office Act, which was later declared unconstitutional by the Supreme Court.

Articles of impeachment were brought against Bill Clinton for perjury, or lying under oath, and obstruction of justice, but there is little doubt that there was also a Republican desire to weaken Clinton’s presidency behind the charges.

Even Alexander Hamilton expected the process of impeachment to be overtly political. President Gerald Ford put the matter bluntly when he described an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.”

2. How does the process work?

The process usually begins when a member of the House brings forth articles of impeachment. Last year, five Democrats in the House did just that.

Next comes a vote on the articles of impeachment by the House Judiciary Committee. The Judiciary Committee can choose to investigate the matter – or opt out, as they did in the case of the Clinton impeachment. The committee can then recommend for or against impeachment. Either way, their recommendation isn’t binding – meaning the House can impeach over their recommendation. The current chair of the committee, Virginia Republican Bob Goodlatte, is a strong supporter of the president, but he is set to retire in 2019.

Next comes a vote in the full House, with only a simple majority required.

If the House votes to impeach, the case is referred to the Senate for trial. The trial runs much like a criminal case, and witnesses can be called on either side. A supermajority, or two-thirds, of the Senate then has to vote to convict and remove the president from office.

Although two presidents, Andrew Johnson and Bill Clinton, have been impeached by the House, both avoided a conviction in the Senate and a resulting removal from office.

A common misconception is that the Supreme Court plays a major role in the proceedings. The chief justice does preside over impeachment trials in the Senate, but that is the court’s only role.

3. Republicans have a majority in the House and the Senate. Does that essentially make Trump bulletproof?

More or less.

Although it is possible that Republican members of Congress could join with Democrats in calling for Trump’s removal, as we saw happen in the run-up to Nixon’s resignation over the Watergate scandal, today’s polarized political environment makes such an occurrence unlikely absent clear and convincing evidence of major wrongdoing.

While Nixon’s impeachment was likely inevitable, with Democratic majorities in both houses of Congress in 1974, today substantial Republican defections from Trump would be essential to any movement toward impeachment.

Currently, there are 236 Republican House members. That means 22 Republicans would have to join with all of the Democrats in the House to impeach Trump. However, the 2018 midterm election could change this math if the Democrats pick up seats.

The articles of impeachment against Trump might look remarkably similar to those levied against Nixon and Clinton. The articles of impeachment drawn up by Democrats in November 2017 accuse the president of obstruction of justice related to the firing of FBI director James Comey, undermining the independence of the federal judiciary, accepting emoluments from a foreign government and other charges. Any attempt to accuse him of treason is extremely unlikely, in my opinion.

4. If the president is removed, who takes over? What would happen if the vice president was also implicated in the president’s crime?

If President Trump was removed from office, Vice President Mike Pence would be immediately sworn in. In the unlikely event that both the president and the vice president are impeached by the House and convicted by the Senate, Speaker of the House Paul Ryan would become president.

5. Can officers other than the president be impeached?

Absolutely. In fact, 15 federal judges have been impeached, although only eight have been removed from the bench. The most recent example was in 2010 when federal Judge G. Thomas Porteous was found guilty on multiple articles of impeachment by the U.S. Senate. Porteous was found to have accepted bribes from lawyers with dealings before his court.

Republished under license, with permission from The Conversation.

Health, Race

Why the case of Jahi McMath is important for understanding the role of race for black patients

July 16, 2018 MuniCourts

Yolonda Wilson, Howard University

California teenager Jahi McMath, who suffered catastrophic brain injury as a result of a routine tonsil surgery, died on June 22, 2018.

Her death came after four years of her family fighting in court to continue her care in California. Eventually, they moved her to a facility in New Jersey, a state that accommodates religious views that don’t recognize brain death.

File 20180711 27045 1mmldej.jpg?ixlib=rb 1.1 — A photo of Jahi McMath shown at her funeral service at Acts Full Gospel Church in Oakland, Calif. AP Photo/Jeff Chiu

Much of the popular discussion in the case centered on the family’s refusal to accept the diagnosis of brain death. However, as a philosopher who writes on bioethics and race, I believe an underappreciated aspect of the discussion was the role of race – both in how the medical personnel dealt with the family and how the family interpreted their interactions with the medical establishment.

The surgery and outcome

On Dec. 9, 2013, the 13-year-old McMath entered Children’s Hospital and Research Center in Oakland, California, for what should have been a routine tonsillectomy. The young girl was, according to her mother’s account, frightened that something would go wrong. Her mother reassured McMath that she would be okay.

McMath’s post-surgical complications began about an hour after her surgery. A nurse provided a bin to catch the blood that McMath had begun spitting up. Although the nurses indicated to the family that some post-surgical bleeding was normal, two hours later, McMath’s blood filled two plastic bins and the bandages packing her nose were saturated with blood. Her hospital gown was also covered in blood.

According to the family, four and a half hours passed before a physician saw her, despite the family’s repeated pleas for intervention. The hospital has maintained that they can not discuss Jahi’s case in detail because of privacy laws. Bleeding complications, though rare, can occur after tonsillectomy because tonsils are near arteries.

As a result of the immense blood loss, McMath’s heart stopped and her brain was deprived of oxygen. Three days later, on Dec. 12, 2013, the medical staff at Children’s Hospital declared McMath brain dead. Hospital personnel encouraged the family to withdraw life support and donate her organs.

McMath’s family refused to accept the diagnosis, and a court battle to keep McMath on life support ensued.

A judge in California initially ruled that McMath could remain on life support until Jan. 7, 2014. However, the Alameda County coroner issued a death certificate anyway.

A 2015 photo of Jahi McMath is shown on a video screen next to her uncle Timothy Whisenton. AP Photo/Jeff Chiu, File

Philosopher Jeffrey P. Bishop, who holds the chair of health care ethics at Saint Louis University, writing in Harvard Divinity School bulletin noted the ethical oddities of the case. In California, once two physicians confirm brain death, the patient is legally dead. The body is then technically released to the coroner before being released to the family so that they can make arrangements. In the case of McMath, she was still in the hospital and on a ventilator when these procedures kicked in.

From the beginning, the case was tangled up with all sorts of questions regarding the nature and diagnosis of brain death. Although there are long-established criteria, how brain death is determined in practice can vary. These differences in practices can contribute to confusion, particularly among the lay public, about brain death.

Her family rejected the brain death diagnosis alleging the hospital had a conflict of interest and simply wanted McMath’s organs.

Revisiting a history of medical racism

Rather than dismiss the family’s concerns as paranoid or ignorant, it is important to understand the historical realities faced by black patients in their encounters with the U.S. medical system.

There is a long historical record of using African-Americans for medical experimentation. For example, medical experimentation performed by J. Marion Sims, “the father of modern gynecology,” highlights the medical establishment’s disregard for black people.

Sims, who began conducting his gynecological experiments in the 1840s, is credited with developing a surgical procedure to repair vesicovaginal fistula, a hole that develops between the vaginal wall and the bladder, resulting in incontinence. However, Sims achieved his success by experimenting on enslaved women, often without anesthesia.

Sims wasn’t the only one. During the 19th century, medical schools used both enslaved and free black people, often without their consent, to teach their white medical students anatomy, disease progression and diagnosis. This practice continued after slavery.

Additionally, the graves of African-Americans were robbed and their bodies disinterred so that medical students could use black bodies as cadavers. Aware of these practices, African-American communities were deeply suspicious of local medical schools and unsure whether the medical personnel were actually “treating” them or merely “experimenting” on them.

Few examples of the abuse of African-Americans in medical experimentation loom larger than the Tuskegee syphilis experiment – a 40-year-long study of disease progression of syphilis in 600 men in the Tuskegee, Alabama, area that began in 1932. The study was sponsored by the U.S. Public Health Service.

None of the 399 men who had syphilis were ever told of their diagnosis. Nor were these men or their partners treated with penicillin once penicillin became the standard treatment for syphilis in 1945. In 1997, President Bill Clinton issued a formal apology on behalf of the U.S. government to the eight remaining survivors of the Tuskegee experiment.

President Bill Clinton apologizes to black men whose syphilis went untreated by government doctors. AP Photo/Doug Mills

One presidential apology, however, could not erase the sense of mistrust that many African-Americans feel toward health care institutions.

And the medical injustice continues: There are wide gaps in outcomes between whites and African-Americans in a variety of diseases. For example, the American Cancer Society reports that, of all the racial and ethnic groups in the U.S., African-Americans, are more likely to die from most cancers.

Lower quality of care?

African-Americans also report lower quality of health care and greater dissatisfaction with the care they receive. In addtion, they are significantly more likely to report experiencing racial discrimination and negative attitudes by health care personnel than non-Hispanic whites.

Medical mistrust and the resulting dissatisfaction have been connected to patient anxiety, as well as lower engagement in health care decision-making between patient and provider.

This mistrust makes African-Americans less likely to use the health care system. Along with other factors, such as limited insurance status and greater geographic distance from health care providers, it contributes to disparate health outcomes.

It is against this backdrop that one must understand the McMath family’s skepticism regarding both her treatment and diagnosis.

McMath’s mother, Nailah Winkfield, told The New Yorker,

“No one was listening to us, and I can’t prove it, but I really feel in my heart: if Jahi was a little white girl, I feel we would have gotten a little more help and attention.”

Nailah Winkfield, the mother of Jahi McMath, speaks next to husband Martin Winkfield during funeral services for Jahi. AP Photo/Jeff Chiu

Sadly, Winkfield is not alone in her suspicions.

It is possible that the ultimate outcome might still have been tragic. Even with the most attentive care, McMath might have died. However, the family feeling that the medical team did not do all that they could have done for their loved one, and that this, for them, was a function of race, needlessly inflicted additional injury.

Republished with permission under licence from The Conversation.

See our related page, "Medical Oppression"

Business, Employment, History, Race

St. Louis Arch A Symbol of “Negro Removal”?

July 14, 2018 MuniCourts

by Randall Hill

On July 3, 2018, a ribbon-cutting ceremony for the renovated St. Louis Gateway Arch grounds was held. The history of the Arch is rooted in exclusion and racist policy. Black businesses were evicted to make room for the Arch and blacks were denied employment opportunities during the Arch construction. 53 years later, blacks were not represented in the ribbon cutting ceremony although the City of St. Louis has a majority black population.

Officials and National Parks Service staff cut the ribbon to the new Gateway Arch visitor center and museum Tuesday.

The photo above is symbolic of how black people are constantly being removed for the benefit of others. The City of St. Louis removed blacks from the riverfront, sections of downtown including the Mill Creek Valley to build Pruitt Igoe.

Mill Creek Valley looking northwest towards Grand, St. Louis, MO.

The Mill Creek area was supposedly blighted, however, my father, who will be 90 later this year, told me many of the residents of Mill Creek were homeowners who took pride in their homes and kept them up. When I saw pictures of Mill Creek Valley, it looked very similar to the Soulard and Lafayette square neighborhoods.

In 1959, demolition of the neighborhood began, displacing over 20,000 residents, 95% of whom were black. Keep in mind, during this time the federal government was still actively redlining and withholding funds to improve black neighborhoods. Of the $120 billion worth of new housing subsidized by the government between 1934 and 1962, less than 2 percent went to nonwhite families.

Former Mayor Raymond Tucker (at right) and then-civic leader and bond issue chairman Sidney Maestre look out over an area of Mill Creek Valley slated for clearance in 1956.

The Interstate highways wiped out many predominantly black neighborhoods and turned them into surface parking and highways or isolated them contributing to their failure. Even the Cookie Thornton shooting was related to black removal. Most recently, the false promises of Paul McKee and the NGA project resulted in the further displacement of black families and neighborhoods all under the guise of urban renewal. James Baldwin pointed out in a 1963 interview that, "urban renewal..means negro removal".

People of African descent have played a large role in St. Louis since the city’s founding in 1764. Downtown St. Louis was a center of black cultural, economic, political, and legal achievements that have shaped not only the city but the nation as well. Early census figures show blacks, both free and slave, lived in St. Louis from its earliest days under French and Spanish colonial rule. By the 1820 census, 10,000 slaves lived in Missouri, about one-fifth of the state’s population, however only 347 "free colored persons" lived in Missouri. That same year, the Missouri Compromise admitted Missouri to the Union as a slave state. Evidence of black life in downtown St. Louis has been erased from the City's landscape and memory. See: "African Americans in Downtown St. Louis".

In 1935 St. Louis approved a bond issue for a project commemorating Jefferson’s Louisiana Purchase and to clear an area of empty, “blighted” warehouses. A study by the Post-Dispatch at the time of the 1935 vote found the riverfront wasn’t a derelict district that needed to be cleared. The paper found 290 active businesses and a 2% vacancy rate on 37 blocks that would become the Arch.

The St. Louis riverfront, looking northeast from the Old Courthouse in 1895. This area now contains the Gateway Arch. The buildings shown here were prized by many historic preservationists, who objected to the demolition of unique cast-iron structures

As Tony Messenger pointed out in his article, "Krewson's deputy mayor calls all-white Arch photo a 'symptom' of St. Louis' racial divide": In 1939, the city of St. Louis began clearing 486 buildings from the area near its riverfront. Most housed businesses owned and run by black St. Louisans. About 5,000 jobs were lost.

Westward Expansion

Let's not forget the original motivation for the St. Louis Arch. It was built to honor St. Louis' role in westward expansion, a time when Manifest Destiny was used to push Native Americans and Mexicans out of their lands. It is estimated 10 million+ Native Americans were living on land that is now the United States when European explorers first arrived in the 15th century. It is estimated that over nine million Native Americans were killed after European settlers arrived.

"Illegal aliens have always been a problem in the United States. Ask any Indian."

As the United States expanded westward, violent conflicts over territory multiplied. In 1784, one British traveler noted:

“White Americans have the most rancorous antipathy to the whole race of Indians; and nothing is more common than to hear them talk of extirpating them totally from the face of the earth, men, women, and children.”

After the American Revolution, many Native American lives were already lost to disease and displacement. In 1830, the federal Indian Removal Act called for the removal of the ‘Five Civilized Tribes’ – the Cherokee, Chickasaw, Choctaw, Creek, and Seminole.

Between 1830 and 1838, federal officials working on behalf of white cotton growers forced nearly 100,000 Indians out of their homeland. The dangerous journey from the southern states to “Indian Territory” in current Oklahoma is referred to as the Trail of Tears. By 1837, 46,000 Native Americans had been removed from their homelands, thereby opening 25 million acres for predominantly European settlement.

Ferguson should have acted as a wake-up call to the entire St. Louis region. This year will mark the fourth anniversary of Michael Brown's death, but the City of St. Louis and the greater St. Louis region are either in denial or indifferent about its exclusionary institutionalized racist and oppressive nature. As Dr. Martin Luther King Jr. aptly stated, “a riot is the language of the unheard".

Considering the history of what the St. Louis Arch commemorates and the history of its construction, the lack of diversity in the ribbon cutting symbolized St. Louis' culture of racism. It's time to start listening to the unheard!

Police, Politics

When some police feel misunderstood, it can impact their performance

July 3, 2018 MuniCourts

Shefali V. Patil, University of Texas at Austin

Amid a string of fatal police shootings of unarmed black citizens, the Pew Research Center ran a massive study in 2017 of 8,000 U.S. police officers asking them about their experiences.

It revealed something startling: 86 percent of officers believe the public does not understand the risks and challenges of their jobs, even though 83 percent of U.S. adults rated officers’ jobs as very risky.

A police officer once told me in an interview: “I think police officers are misunderstood, what we do, why we do things. All the public sees are 30-second cell phone camera videos from a biased individual.”

Another said, “There’s this automatic generalization of an officer being there just because of the color of their skin or the uniform they’re wearing.”

These officers, who I won’t name to protect their confidentiality, are not alone.

File 20180701 117440 10fg9jc.jpg?ixlib=rb 1.1 — Antwon Rose Jr. was fatally shot by a police officer in East Pittsburgh. AP Photo/Gene J. Puskar

Dealing with people who do not understand your work and have unrealistic expectations can be frustrating. For example, a previous study found that serving difficult people can cause stress, burnout and lower performance among lawyers, accountants, architects and registered nurses.

As an organizational psychologist, I set out to study if police who feel misunderstood also perform worse on the job.

After all, there are many ways in which officers feel misunderstood. Some feel that the public doesn’t understand how difficult it is to make quick decisions when lives are on the line, deal with social ills like drug addiction and poverty, and witness tragedy and loss on a daily basis. With so much at stake, they only have to get it wrong once – something officers think the public does not fully appreciate.

The studies

To answer this question, I conducted two studies across six U.S. police agencies. First, I asked patrol officers to rate the public’s understanding of the difficulties of their jobs and the dilemmas they confront on a daily basis.

I also asked officers about their beliefs about how society should deal with crime. Some officers supported softer policies that emphasize rehabilitation and community outreach. Others supported harder policies that emphasize “get tough” punishment to set an example for others.

Then, I collected about 800 body camera footage videos of 164 officers. The videos captured everyday policing duties such as traffic stops, arrests and house calls. I recruited experts – retired division commanders and current supervisors – to rate officer behaviors in the videos. For example, they rated the degree to which officers “performed their on-scene functional duties in a competent manner.”

Ideology matters

Dallas Police Department Chief Joseph Hannigan bows his head at a ceremony to remember five law enforcement officers killed in a sniper attack in downtown Dallas on July 7, 2016. AP Photo/Jaime Dunaway

Surprisingly, not all officers who thought the public misunderstood their jobs received poor performance ratings. Some actually had high performance ratings.

In fact, I found that only the police officers who indicated a softer stance toward crime were rated poorly. Their bodycam videos revealed that they hesitated or acted too quickly, violating basic safety protocols.

By contrast, the performance ratings of officers who believe in harder approaches to fighting crime remained high.

I found this was the case regardless of the raters’ personal beliefs about crime.

Why did officers who support softer approaches to crime receive poorer ratings?

It is likely that they are more frustrated than their peers by perceptions that the public does not appreciate their jobs. They are trying to build closer relations with the public, and their efforts are being met with criticism and a lack of appreciation.

This frustration and uncertainty about how the public will react may be leading to lower performance. For example, when asked how public misunderstanding affects him during an interview, an officer stated: “It makes not only me, but I see it in a lot of these guys, they don’t want to be proactive. Officers pause, and there’s going to be times where it’s going to be a safety issue.”

On the other hand, officers who believe in hard-line approaches do not expect the public to understand their jobs. From their perspective, officers are given authority over the public because they have knowledge and expertise that are only understandable to them. They are the ones who wear the uniform.

Because of this lower frustration, these officers may be performing better. For example, another cop told me: “Public misunderstanding don’t really change anything. I know what I was trained to do. Whether you’re happy to have me there or not, I’m still going in there. I have a job to do.”

Coping with misunderstanding

These studies suggest two things.

First, community safety suffers when some officers believe that the public does not understand the physical and emotional difficulties they face on the job. While it is generally known that there is tension between officers and the public, my studies demonstrate the dangers of this tension.

Second, because public misunderstanding can reduce the effectiveness of some officers, it is important to explore ways to help all cops – regardless of their different approaches to crime – be effective despite today’s environment. For example, some of my current research suggests that officers who feel misunderstood, but also feel that they have little autonomy and discretion in making decisions, actually perform better than those who feel they have a lot of freedom.

Given the impact that officers can have on human life, helping police officers cope with public tension should be a priority.

Re-published with permission under license from The Conversation.

Shefali V. Patil, Assistant Professor of Management, University of Texas at Austin

Civil Rights, Employment, Politics

Janus decision extends First Amendment ‘right of silence’

July 3, 2018 MuniCourts

Robert A. Sedler, Wayne State University

Forty years ago, the U.S. Supreme Court ruled that a state could require nonmembers of a public employee union to pay an “agency fee,” otherwise known as costs of collective bargaining, for their representation by the union.

The union could not use any part of the agency fee to advance ideological purposes unrelated to the union’s primary function of collective bargaining.

At that time, the court took the view that this requirement did not violate the First Amendment’s “right of silence” of nonunion members who didn’t want to pay the fee. The “right of silence” is the guarantee that people cannot be forced to be associated with an idea they do not believe.

On Tuesday, June 26, in Janus v. American Federation of State and County Municipal Employees, the court overruled that decision.

File 20180627 112634 j3v9ei.jpg?ixlib=rb 1.1 — Plaintiff Mark Janus, right, leaves the the Supreme Court Wednesday. AP Photo/Andrew Harnik

The court held that when it came to public employee unions, all collective bargaining involved ideological and public policy considerations. For government workers, the court said, issues like salaries, pensions and benefits are inherently political. And some employees may not agree with the union’s position on those matters.

For example, if a teacher’s union sought higher wages and benefits for its members, this might result in higher taxes for residents of the school district. And if that position was shared by certain union members, the union would be, effectively, putting words they didn’t believe in in their mouth. So the court said that compelling objecting employees to pay an agency fee violated their First Amendment right of silence.

Labor unions fought bitterly against Janus. AP Photo/Jacquelyn Martin

Although the court is reluctant to overrule prior decisions, the court majority, consisting of the four conservative justices plus Justice Kennedy, found that requiring objecting public employees to pay an agency fee was inconsistent with standard First Amendment principles.

Associate Justice Elena Kagan blasted the decision in her dissent, writing that “The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance — including over the role of public-sector unions.”

The majority also decided that agency fees were not justified by the union’s claim that they were necessary to avoid “free riders,” who would get the benefit of the union’s collective bargaining services without paying for them.

Indeed, said the court, the alleged “free riders” would be employees who were compelled to take a ride that they did not want. And above all, public employee unions did not need agency fees in order to effectively perform their role of representing the members of the bargaining unit.

The court noted that today public-sector union membership has surpassed union membership in the private sector. They said that public-sector unions effectively represent both federal employees without any agency fees and public employees in “right to work” states, where agency fees are prohibited.

The result in Janus extends strong protection to the First Amendment right of silence. It continues a trend over the last decade by which the court, sometimes divided and sometimes not, has expanded First Amendment rights, often at the behest of ideological conservatives.

In the United States, we give more constitutional protection to First Amendment rights than is provided by other democratic nations and international human rights norms. Janus is another example of this protection.