The proposed human rights ordinance contains a subsection numbered 9.942 that reads:
“Sec. 9.942 – Biased Crime Reporting 1. No person shall knowingly or recklessly report to a City police officer, City dispatcher, or other City personnel that an individual who is an actual or perceived member of a protected class as identified in Sec. 9.935 of this Ordinance has committed, or may or will commit, a crime, if such report is based in whole or in part on the individual’s membership in a protected class and not on a reasonable suspicion of criminal activity in consideration of all available facts and the totality of the circumstances. 2. This Section is enacted for the purpose of ensuring the public health, safety, and welfare of the City’s residents. “
There are a few potential legal issues with the language and intent of this subsection, which I will herein elucidate.
Intent
First, while the language of the subsection is broad, it is quite easy to infer the intent of this ordinance. While it appears that no similar legislation has been enacted at any governmental level throughout the country, there has been a recent orchestrated push on the part of far-left groups to outlaw what is described as “weaponized” used of 911. The actual intent of these groups is crystal clear: to reduce the number of questionable calls to authorities made against black people in general and black men of prime-crime age in particular.
The Google search term “911 calling bias” returns a number of news stories, editorials and video results. Of the first-page search results that are text based, there are a total of 17 incidents mentioned to illustrate the problem. 16 of these involve black people and 11 involve black men of prime-crime age. There are two borderline cases: Tamir Rice and Jesse Hamilton, with the former being 12 years old and the latter being slightly over 40. There are three other cases among the 11 that I could not confirm but that are overwhelmingly likely to involve prime-crime-age black men.
Note: my location-based search results have since changed due to coverage of the introduction of this ordinance itself, but the content remains substantially the same.
Based on these search results and the totality of news coverage, editorials and reports on the issue of 911 calling bias, it should be quite clear to any reasonable observer that the actual intent of this bill is to reduce the number of 911 calls made against black people in general and prime-crime-age black men in particular.
According to the Michigan Municipal League Handbook for Municipal Officials, which derives its recommendations from 1909 PA 279, The Home Rule City Act:
“An ordinance must advance a public purpose, not the interests of a private person or an arbitrary class of persons. An ordinance that grants special privileges to a single person or entity exceeds the scope of the governing body’s powers.”
There’s no more arbitrary a class of persons than a specific subset of a specific race. What’s worse, it is clear that this arbitrary class was specifically chosen due precisely to its crime-prone nature: prime-crime-age black men commit violent crime at around 40 times the rate of a generic white person. Fining any citizen $500 in a country where half of all Americans would end up on the street if such a fine were imposed is a powerful disincentive towards calling 911 to report suspicious activity. This makes it an effective deterrent for calling 911 on any black person, no matter how dire the circumstances, if there is even a small chance that the call will be later adjudicated by some unaccountable bureaucrat to be in violation of the ordinance in question.
It is an ironclad law of economics that what is taxed will be reduced in frequency. How many fewer 911 calls might we expect from the passage of this legislation? Even if it’s only 10 percent fewer calls, what is the legitimate public purpose? Has there been a rash of biased 911 calling in Grand Rapids? Or is this legislation aimed to address anecdotal concerns stemming from starkly isolated but sensationally publicized incidents at the national level?
The handbook goes on:
“An ordinance must relate to local matters, not to matters of statewide concern. In addition, an ordinance must serve a lawful purpose, either as expressly provided for by law or as necessary for the general health, safety and welfare of the community.”
We can assume that matters of highly questionable national concern — I’ll address this momentarily — are not within the legitimate purview of local ordinances, especially where no clear local problem exists that the legislation purportedly seeks to redress.
The municipal handbook further states:
“An ordinance must be reasonable, both at first sight and as applied to a particular situation, or it will be held invalid. In general, whether or not an ordinance is reasonable will depend on the particular language of the ordinance or the particular circumstances to which the ordinance is applied. The inquiry will typically focus on whether the ordinance is intended to advance a legitimate police power objective, whether the ordinance constitutes a rational means to accomplish that objective, and the impacts of the ordinance on rights or privileges which have been granted or guaranteed by applicable laws and constitutions.”
Again, let’s use the above conservative estimate that this highly punitive and powerfully deterrent $500 fine that is to be ex-post-facto assessed by a government worker per their fleeting administrative whims is only effective in reducing the total number of 911 calls by 10 percent.
Each year, there are 240 million 911 calls, the near totality of which are placed for what the caller perceives to be potentially life-threatening reasons. Reducing that number by 10 percent would mean that 24 million fewer 911 calls are made. It’s hard to know how many lives might be saved by 24 million 911 calls concerning suspicious activity. But there is little doubt that the number would be in the thousands, especially given the hyperviolent demographic on whose behalf this ordinance seeks to intervene in blocking the enforcement of law. One report estimated that decreasing response times by a mere minute would save 10,000 lives each year while saving $92 billion.
The 17 cases of 911 abuse that were mentioned on the page-one Google results are obviously not comprehensive. But in today’s media climate, where any slightest insult to black people by whites is often front page national news for weeks, even where it turns out to have been a ridiculous hoax, we can safely assume that egregious cases will make it on Google’s radar scope.
So, does this paint the picture of a reasonable law that uses a rational means in serving a legitimate police power objective? If this were a national law, would it be reasonable to prevent two people barbequing in a park or sitting in a Starbucks from having their egos bruised or their dignity affronted at the cost of thousands of dead bodies, shattered families and mothers permanently destroyed by interminable grief? Keep in mind that the direct goal of this policy is to reduce not 911 calling in general but, in particular, 911 calling against what is the primary demographic engine of violent crime: prime-crime-age black men. Every policy has both costs and benefits; both must be accounted for.
Reasonable suspicion
The ordinance in question seeks to apply the reasonable suspicion standard to every potential user of 911. However, in doing so, it makes a fundamental error, namely it states:
“…that an individual who is an actual or perceived member of a protected class as identified in Sec. 9.935 of this Ordinance has committed, or may or will commit, a crime, if such report is based in whole or in part on the individual’s membership in a protected class and not on a reasonable suspicion of criminal activity in consideration of all available facts and the totality of the circumstances.”
But the reasonable suspicion standard, as conceived in the majority opinions of Terry v. Ohio, Whren v. United States and United States v. Brigoni-Ponce, explicitly allows for race to be considered as one factor — that is, in part — in establishing the presence of reasonable suspicion. This is a direct consequence of the reasonable person standard, which makes appearances in various incarnations throughout the decisions and which entails a rational person employing well-founded premises and sound argument.
As I exposed at length in an earlier email, race confers a strong Bayesian prior regarding the relative risk of violent criminality. This is based on overwhelming and irrefutable evidence from the FBI, New York City Police Department inter alia going back more than a century and relays critical probabilistic information in determining the risk of a subject’s criminal intent.
The finding that race may be used as a factor in judging the presence of reasonable suspicion has been affirmed and reaffirmed over decades. This means that the injunction against using race in whole or in part is a direct contradiction with the established precedential nature of the reasonable suspicion standard. The clause in question could be thusly restated in logically equivalent fashion:
of a protected class as identified in Sec. 9.935 of this Ordinance has committed, or may or will commit, a crime, if such report is based in whole on the
…individual’s membership in a protected class or on a reasonable suspicion of criminal activity and not on a reasonable suspicion of criminal activity.
This is obviously incoherent and unparsable, necessarily leading to profound confusion as to what behaviors will run afoul of the ordinance’s language. And such construction is a prima facie violation of the following guideline from the Handbook for Municipal Officials:
“If an ordinance is vague, ambiguous, or indefinite so that it is impossible to determine what the ordinance requires or to determine the legislative intent, the courts will hold the ordinance void. The meaning of an ordinance must be clear enough so that persons who are subject to its provisions can determine what acts will violate it. A penal ordinance (one that imposes a penalty for violation) will be strictly construed by a court in favor of the defendant.”
Conscripting citizens to perform critical police duties
Ignoring the subsection’s incogence, vague prescriptions and proscribed intent, the issue looms of the onerous means by which it seeks to achieve its ends, namely by conscripting ordinary citizens to perform one of the most critical tasks in the primary police function of crime prevention: determining when to initiate an investigation, arrest or detention.
By invoking the reasonable suspicion standard, the ordinance is effectively telling citizens that if they do not correctly apply this complex legal notion, that they will be fined an amount of money that would present a catastrophic financial emergency to half of all Americans.
At the same time, the maintenance of general order, including the right to self-defense and the defense of one’s property, are rights that have been recognized going back to at least Rome. And they are inarguably a prerequisite to the establishment of justice, domestic tranquility, promotion of the general welfare and the securing the blessings of liberty. In short, self-defense, defense of one’s property and the maintenance of general order are inalienable rights.
But in modern times, we have outsourced the bulk of the actions necessary to secure liberty’s blessings to professional law enforcement. In doing so, we have granted professional law enforcement great powers that in times past have resided solely with the individual citizen. In granting these powers, we implicitly recognize a duty to perform the tasks which are thereby made possible. That police are granted the right to investigate citizens, make arrests and use deadly force means that they have a duty to use those powers to maintain order and prevent crime to the best of their abilities.
Conversely, removing some of those duties from professional law enforcement implies that the attendant rights are likewise rescinded. How could it be any other way? Inherent in the concept of inalienable rights is that they derive from nature or God and that any effort to curtail them will only end in the further illustration of Horace’s warning, “though you drive nature out with a pitchfork, still she returns.”
Aside from the timeless lesson that the abdication of police duties encourages various degrees of vigilantism, there is the issue of conscripting ordinary citizens to perform primary police functions. The 13th Amendment to the U.S. Constitution plainly and concisely bars involuntary servitude. Subsequent case law has found that certain exceptions obtain, but these are strictly spelled out and exclusively involve those activities that have been long recognized as essential duties of the citizenry, such as aiding in the national defense or working to maintain roadways. Nowhere in the annals of Western Law, to the best of my admittedly inexpert knowledge, is there a precedent established which bounds ordinary citizens to perform the essential functions of professional law enforcement officers.
This also means that, so long as professional law enforcement agents are granted rights such as a monopoly on force and the power to detain and arrest, it follows that each citizen has the right to make use of 911 or other means of summoning professional law enforcement to the scene of a crime, potential or actual, as that is the only means of assuring their inalienable rights to order and defense of self and property, the execution of which they have delegated to professional cops.
I would caution anyone who believes otherwise to carefully think this matter through.
The landmark 13th Amendment decision in Perry v. Butler was over the requirement of each citizen within the county to work 60 hours per year on the roads or pay an equivalent toll. So, we might ask how long it would take for the average citizen to become expert in the determination of whether or not reasonable suspicion exists.
But first, we might start with the problematic fact that not everyone is fit for police work at all. While statistics generally indicate that most people graduate from police academies, this does not take into account the stringent hiring process and the socialization that occurs on the road to becoming a cop, in which many are filtered out. Nor does it account for the long list of strict disqualifiers from becoming an officer. Factors that will prevent someone from ever being accepted to a police academy include but are not limited to:
- Having a criminal record
- A history of mental illness
- Education — Candidates usually need the equivalent of an associate’s degree, usually in criminal-justice related fields
- Candidates must pass a written exam
- Candidates must pass a physical exam
Finding statistics on how many aspiring cops are ultimately disqualified before being sworn in is hard. But particularly the written exam, the psychological requirements and the physical exam have the effect of weeding out what is probably, at a minimum, the majority of people from the pool of potential future officers.
Nor does this take into account the fact that not all cops are first-string choices for dangerous patrols. Some cops are simply much more suited to dangerous conditions and making life-or-death decisions under high stress than others.
It therefore follows that by saddling the public with critical police duties, the results will necessarily be worse because those performing the tasks will be, by definition, unqualified.
And this brings up the question of qualification. It’s not easy to estimate how long one would need to study and practice in the field in order to become an expert at recognizing the conditions under which reasonable suspicion exists. But police officers typically undergo at least two and a half years of education, including six months of intense police-academy training, followed by 8 to 12 weeks of highly intense field training and then up to a yearlong probationary period where the officer is still considered to be in a learning phase. Without asking a cop directly, it is almost impossible to determine how much of this time is spent learning to identify when reasonable suspicion is present. But doing so ranks among the most critical tasks that a new officer learns to perform.
Just becoming familiar with the reasonable-suspicion case law is daunting. While I myself can vaguely describe what reasonable suspicion entails after having researched it for hours, I would have no clue whether it exists or not in 99 percent of the real-world borderline situations that police officers daily encounter. Expecting that laypeople — many of whom would never be permitted to sit for the first day of police academy due to personality, psychological or other strict disqualifiers — will be able to perform this critical task at anything above the most ham-fisted parodic level is nuts.
And the onerous study involved in becoming expert at the identification of reasonable suspicion means that conscripting people to do so would appear to easily meet the qualifications for involuntary servitude under the 13th Amendment. This is not to mention that the subsection binds any 911 caller to performing this expert skill each and every time they call the authorities. Far from encouraging color blindness, the subsection’s language forces every caller on every call, under threat of withering penalties, to note with punctilious care the race, gender and detailed physical characteristics of the suspect and then make the complex calculation, based on libraries of case law and established best practices, of whether or not their concerns would meet the legalistic standard for reasonable suspicion. In addition to likely violating the 13th Amendment, this is the grossest violation of common sense.
First amendment issues
Some may not be aware that police officers are allowed to approach and talk to anyone in public at any time and for any reason or none at all. This is a logical consequence of the First Amendment. Why would a police officer’s speech be restrained, especially if it is put to use in furthering the public good?
If a police officer’s right to approach a suspect and engage in unrestrained speech for no reason is protected under the First Amendment, then under what theory would a citizen’s right to call a police intermediary be curtailed when that citizen has articulable cause to do so?
If the latter isn’t an example of prior restraint, it’ll do ‘till it gets here.
Interference with existing law
The Handbook for Municipal Officials states:
“The provisions of an ordinance must be consistent with state law; the ordinance may not conflict with or be preempted by a state law. The same holds true for federal law. A direct conflict exists if an ordinance permits what a state statute prohibits or prohibits what a state statute permits.”
In this case, a teenager misused 911 by repeatedly calling in fake emergencies. The girl was ostensibly charged under MCL 750.540e, the usual law that is invoked in the prosecution of 911 abuses. Because a law dealing with 911 abuses already exists, it’s not clear what the need for duplicate legislation at the local level is.
Shaping policy around outliers and the questionable merits of cited cases
While a couple of the cases cited by proponents of 911-bias legislation are indeed horrifying — the case of a black girl being harassed for running a lemonade stand comes to mind — these are the most extreme outliers and are in no way representative of the near totality of the 240 million 911 calls that are placed every year in the United States.
There is no question that black prime-crime-age men are viewed with suspicion. But this suspicion is thoroughly justified as this demographic commits violent crimes at around 40 times the rate of a generic white person. At the same time, whites specifically in the United States are indeed justified in their particular apprehension towards black prime-crime-age men: Blacks attack whites at 27 times the rate that whites attack blacks, accounting for the vast majority of interracial violent crime. Although it is thoroughly suppressed by the media, black-on-white crime in the United States is both vicious and widespread. The cause of whites’ fear of prime-crime-age black men is not ignorance or bigotry but instead careful deliberation and overwhelming empirical evidence.
Even among the few extraordinary cases that advocates for anti-911-bias legislation point to, many involve highly questionable claims of abuse. For example, the Tamir Rice case, while tragic, involved a black youth with what looked by all accounts to be a real handgun. Not only can the person who called the authorities not be blamed for doing so, not calling the police in situations where potential gun violence is imminent, a reasonable conclusion where someone is recklessly brandishing a firearm in public, would lead to the kind of society in which few would voluntarily choose to live.
The case of Jesse Hamilton appeared to be centered around a political dispute more than race. In the Trayvon Martin incident, George Zimmerman almost certainly possessed reasonable suspicion to place the initial call. Indeed, even in the cases where there were clearly no solid grounds for calling 911, it is equally clear that the person making the call at the time believed that they had no other choice. Take this example of a CVS employee calling the police on a black customer,
Camilla Hudson, a black woman, posted her surreal July encounter with a white man who nervously trembled as he called police.
The presence of trembling clearly indicates overwhelming fear or anxiety, an indication that the CVS employee’s higher cognitive functions were likely severely impaired and that he was acting in a primal, adrenalized state. Do you think that this person would make it through the rigors of police training? Do you think that the CVS employee can be trusted to perform the critical police duty of determining reasonable suspicion while facing a perceived serious real-world threat? It appears that the employee just answered both those questions resoundingly in the negative by his very actions. While this may be precisely the ordinance’s sought result, this is someone who we want calling the police because if they feel calling for help is not an option, the panicked amygdala-driven ad-hoc law enforcement of the amateur, which reliably racks up casualties wherever it is loosed, is sure to follow.
At this point, we must ask if there is really a sudden epidemic surge of white people calling the police on blacks for no reason. I don’t have the data. But upon examining the already tenuous evidence of this claimed national wave of racially weaponized 911 abuse, it looks a lot more like a herding-instinct mass delusion than a well-documented sociological trend.
Legislating no-snitch convict code will have the usual consequences
As earlier alluded, it is an ironclad historical law that people who cannot rely on the government to impose the minimal order required for basic social functioning will impose it themselves. Yet, widespread vigilantism of the “shoot, shovel and shutup” variety, while a very real long-term threat under conditions of intensifying disorder, are not the most pressing concern.
More critical is how white homeowners and anyone else, including law-abiding blacks, are likely to respond to powerful deterrents to calling 911 or other authorities. The obvious conclusion is that it will lead to people not calling 911 unless it is smashingly obvious that a crime is in the process of being committed, especially where the suspect is a prime-crime-age black man.
This may sound like it’s doing black male youths a favor. But we know from at least 60 years of liberal experiments in criminal-justice reform that while soft-on-crime emptying of the nation’s jails and prisons may produce freedom for criminally inclined black youths, that temporary freedom comes at a steep cost, measured in corpses.
The post-Furgeson depolicing initiatives in conjunction with the DOJ consent decree against the Chicago Police Department conspired to produce 4,500 marginal homicide victims by 2017, almost all black youth. As shocking as this body count is, it pales in comparison to the homicide spikes seen throughout most major U.S. cities in the wake of the ‘60s ultra-liberal crime-soft policies.
This towering spike in violent crime didn’t begin to abate until the early 1990s with the end of the crack epidemic. While there is a lot going on with the data, it is indisputable that current mass-incarceration-moderated low violent crime rates stand in stark contrast to those that followed the 1970 incarceration-rate nadir, when incarceration rates were roughly 20 percent of what they are today. The bottom line is that these do-good policies have a long and sordid track record of violently killing exactly the demographic that they aim to help.
A grand infraction
Unlike many U.S. cities, Grand Rapids doesn’t currently suffer from an epic homicide problem that is flooding its streets with rivers of blood and turning entire sectors into Black Hawk Down set pieces. But that civic achievement was by no means prewritten in fate’s ledger.
In 1991, Dick DeVos and 50 other business leaders created the Grand Action Committee in order to save a rapidly declining downtown Grand Rapids from the same fate that consumed its sister cities of Detroit, Flint and Battle Creek. The salutary results are all around us. Grand Rapids has frequently been named among the best places in the country to live, play and work.
But as the record of American urban decay clearly shows, a city’s beauty and dynamism is always at risk of succumbing to the forces of disorder. Reducing the ability of people to call 911 on potential crime is ipso-facto a pro-crime initiative. And, like an aggressive cancer, increasing crime follows predictable sequalae that end down the Runway 33 centerline of Detroit’s Coleman Young Airport. There, where one can imagine the ghost of airline flights on now-defunct routes that once soared above the thriving neighborhoods below in the city that was known as the Paris of the West, we find urban prairies and homes that have been abandoned because their defeated sellers found no willing buyer.
Some would avert their gaze or mumble unconvincingly about the same deindustrialization that has hit every other city in America. But those vacant, char-covered lots and abandoned homes and destroyed communities all have one common etiology: violent crime. There are no exceptions to the iron civic rule that criminal violence destroys utterly those cities that wantonly permit it.
Dialectic Rec Yard 