In miniature, November 12

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Police reform: House panel endorses LEOBR repeal

A working group of Maryland lawmakers appointed by House of Delegates Speaker Adrienne Jones yesterday recommended that the state repeal its first‐​in‐​the‐​nation Law Enforcement Officers’ Bill of Rights, a law that I and others have inveighed against for years.

As I wrote in 2015:

Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.

Despite minor revisions following the Freddie Gray episode, the Maryland law retains its most objectionable features, as I observed in a piece this summer, including a five‐​business‐​day “get your story straight” period in which a department cannot question officers after an incident; rules prescribing that the process of investigation and discipline be reserved in general to fellow officers; and a lid on the release of information in which the public is legitimately interested.

As lawmakers observed at a late September hearing, repeal would still leave in place numerous other mechanisms by which police officers charged with misconduct could resist investigation and discipline, including state civil service rules, union contract provisions, and Supreme Court doctrines giving public employees constitutional rights to contest some dismissals.

Definitions vary, but per one 2015 roundup, at least a dozen other states as of then had enacted bills similar to Maryland’s into law, including California, Delaware, Florida, Illinois, Kentucky, Louisiana, Minnesota, Nevada, New Mexico, Rhode Island, Virginia, West Virginia, and Wisconsin. All states with such a law, and the equivalent laws sometimes enacted for correctional officers, should follow Maryland’s lead in considering repeal. And the truly terrible idea of making everything worse by imposing LEOBR rules from shore to shore, a perennial measure championed in the U.S. Congress by such as Sens. Mitch McConnell (R‐​Ky.) and Joe Biden (D‐​Del.), should be buried on the ocean floor, never to rise again.

[cross-posted from Cato at Liberty; earlier here, etc.]

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“Never Trump, Now More Than Ever”

[My opinion piece in the Wall Street Journal, Sept. 9, 2020]

Never Trump, Now More Than Ever


Mr. Trump erodes public trust and embarrasses his office. Join me in not voting for him.


By Walter Olson

*

Four years ago I was a “Never Trump” voter. Now, I’m more set than ever in that view: No Trump, doubled. That’s even though I far prefer his economic policies to those of the Democrats. I’ve written many times to defend his administration’s policies against unfair attacks from the left, and I’ve applauded his judicial appointments. But I won’t vote for him, for reasons of Constitution and character.

No modern president has shown so little care for or grasp of how government works—for instance, what powers the president does and doesn’t have. None have found it as hard to put the nation’s well-being above his own, on matters as basic as setting aside the interests of his family business.

Especially vital is that a president set aside personal interest in relations with foreign powers. He should present a united front with his domestic political rivals against foreign meddling in U.S. politics, and he should refrain from using U.S. leverage over weaker countries to seek personal electoral advantage. In the Russia and Ukraine affairs, it’s true that some of his opponents went beyond the available evidence in charging him with misconduct. But even shorn of exaggeration, his conduct fell short of what Americans should expect.

At the start I was happy to allow the man a honeymoon, thinking the shock of great responsibility might lead him to put away childish things, that he might mature as did Shakespeare’s Hal (in Henry IV) and banish his internal Falstaff. Mr. Trump didn’t change. He won’t change now.

I’m no foreign-policy interventionist, but it is wrong to envy the methods of overseas strongmen. Friends who plan to vote for him don’t deny the lack of impulse control, the vindictive meanness of spirit, the Niagara of lies. Don’t fuss so much about the man himself, they say. Follow the policies.

But the presidency—unlike the Senate, where self-absorbed talkers can sail by for years without notice—has executive responsibility. It is charged with delicate relations with rival foreign powers, and with responding to crises.

When the crisis came as a pandemic, a different president, conscious of his limitations, might have stepped back to let Anthony Fauci and Deborah Birx do the talking. But Mr. Trump has bluffed his way through life claiming to know more than the experts. He needs to be the groom at every wedding and the infant at every christening.

Stories abound of how zany ideas are quietly tamped down, or ignored entirely, by appointees around the agencies. But that’s not a stable situation. In time he will insert more personal loyalists into agency jobs.

Remember the “character counts” conservatives? The classicists who went back beyond the Federalist Papers to the Greeks and Romans to ground conservatism in civitas and virtue? Who thought deeply about the dangers to the republic from a man on horseback, a demagogic flatterer of the people, who preaches “I alone can fix it”?

“But he fights.” He is a litigious man who has openly boasted of using losing lawsuits to harm his critics. Yes, a president needs some combative spirit, but it should be discerning—especially when aimed at fellow Americans—and give way in due season to a spirit of reconciliation.

We don’t know when the next crisis will come. It might be a close election in which Mr. Trump needs to accept the decision of the judiciary. We might need national unity. Instead, this man’s tweets are the ground glass in the national milkshake.

A high degree of social trust is needed both for a dynamic economy and for the rule of law. But as legal scholar Orin Kerr puts it, “the president’s signature move is to attack the legitimacy of everyone and every institution who is not in lockstep with him.”

Some offer the “Flight 93 election” theory, in which every four years we face a last-chance, bet-the-country abyss. I don’t buy it. Our country has a system of rotation in office. The other party gets its turn, and the country survives. It will survive Donald Trump, too. But the country should not have to face four more years of him.

*

Mr. Olson‘s books include “The Litigation Explosion.”

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On Maryland Question One, Vote “Against”

The Baltimore Sun has published my letter to the editor (disagreeing with the Sun’s position) in which I argue that Maryland voters should reject Question One, expanding the General Assembly’s power over the state budget.

Contrary to The Sun’s arguments, an “against” vote on Question 1 is the right vote for fiscal responsibility (“Question 1: Vote ‘for’ constitutional amendment on state budget authority,” Sept. 28). At present under the Maryland Constitution, the legislature can only cut items from the governor’s budget, not add or shift. Although unusual among state constitutions, that’s a rule that has long proved workable in county and other local government. Question 1 would authorize the assembly to add items to the state budget as long as overall changes plus and minus do not result in a sum exceeding the governor’s own proposed budget.

Politically, the consequence would be that a lot of people would start lobbying General Assembly members or running for the state legislature themselves, with the aim of raising spending on pet programs. Supposedly, the effects would still be fiscally neutral because something else would have to be traded off (highway maintenance is one guess) to pay for the goodies. But with the legislature converted into a much more ardently pro-spending body than it is now, that constraint might later be discarded too, enabling the legislature simply to add money to the governor’s proposals.

The Sun is right that the General Assembly has resorted to artificial and inefficient dodges to get around the current rule. But the answer there is to spotlight and rein in the artificial dodges. In the mean time, vote “against” on 1.

— Walter Olson, New Market

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In miniature, August 21

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The timing of Montgomery County’s ill-fated schools order

Invoking its public health powers, Montgomery County late Friday announced that it was banning private and religious schools “from physically reopening for in‐​person instruction” through October 1, no matter what combination of precautions (outdoor instruction, ventilation, small numbers only, masks, distancing) they might have been planning to manage risk.

The move sparked an instant furor in the Washington, D.C. suburban community. Gov. Larry Hogan was among the first to voice criticism, and on Monday he signed an executive order withdrawing from county health boards the authority to order school closings, saying that school districts themselves should make that decision for public schools, and that counties should not force private/​religious schools to close so long as they are operating within state and federal safety guidelines.

I’d been puzzled about why, in its now‐​overturned order, Montgomery County had selected a particular date, October 1, two months out—did that reflect some sort of public health or scientific insight? Then someone pointed out that September 30 is the cutoff date in Maryland to count official public school enrollment. Many real‐​world consequences, including but not limited to the magnitude of state and federal grants, depend on the count as of that date.

Note also that at a press briefing July 22, Montgomery County Public Schools (MCPS) Superintendent Dr. Jack Smith said MCPS enrollment of new students was coming in well below expectations, with only about 300 K-12 new students enrolled as of the beginning of July compared with the more than 2,500 that had been projected by the end of August.

The safety issues here are complex and I don’t know what the right answers are, or whether there is exactly one such answer right for all kids and schools. While Montgomery County and nearby areas have had a lot of success getting COVID-19 transmission levels down, both the local prevalence of the virus and the state of knowledge about transmission and risk change constantly.

But I can see why there’s a problem in leaving an arbitrary power to shut down private and religious schools in the hands of their biggest competitor.

[cross-posted from Cato at Liberty]

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Repeal LEOBR, the police-unaccountability law

I’m in this weekend’s Frederick News-Post with an opinion piece urging the General Assembly to repeal a law that has been central to obstructing police accountability in Maryland, the 1974 Law Enforcement Officers’ Bill of Rights (LEOBR).

Since Maryland adopted its first-in-the-nation law in 1974, it has spread to 15 other states, causing problems along the way. Among states with their own versions of the law are Minnesota, where a video recorded George Floyd’s asphyxiation while in police custody, and Kentucky, where officers’ fatal shooting of Breonna Taylor in her Louisville apartment has sparked widespread outrage….

Don’t let the focus slip this time. LEOBR is designed to result in impunity, and it should go.

An annotated copy of the law as revised in 2015 is here (see also here). The U.S. Department of Justice investigatory report on the Baltimore City Police Department includes discussion of some problems caused by the law. In 2015, before the modest legislative revisions, the ACLU commissioned a report on the law (and the Baltimore police union contract, with which it interacts) from Samuel Walker of the University of Nebraska at Omaha.

Note that police unions in places like Baltimore have negotiated contract provisions that institute some of the same barriers to discipline, or go even further, to the public’s detriment. Because of these provisions, repealing LEOBR would fix only part of the problem. For example, one contract says the city cannot even begin disciplinary hearings while criminal proceedings are pending against an officer. Other contract provisions have provided for disciplinary proceedings to be kept secret from the public, promote expungement of public complaints, or forbid job consequences when an officer is placed on the “do-not-call” list of those whose testimony would be highly vulnerable to impeachment by defense lawyers — although the ability to testify credibly should be one of the prerequisites of a police job. Legislation could help here by restricting bargaining to economic issues, such as wages, rather than discipline and investigation.

The New York Times, together with many other publications, has covered the contentions of Del. Gabriel Acevero (D-Montgomery Village, Germantown) that he was fired by his employer, the MC-GEO union that represents many Montgomery County employees, because he refused to back down from his work on legislation to advance police accountability. More background on the shifting politics in Annapolis from Maryland Matters (citing Sen. William C. Smith, Jr.). More coverage from January on death of handcuffed William Green in Prince George’s police custody (“They deserve justice just like citizens do. They should give prompt statements just like citizens do. They should not be given time to cover up their crimes, which the police officer’s bill of rights was designed to let them do,” says family’s attorney); Washington Post letter to the editor last October on Silver Spring case.

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In miniature, July 6

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“Repeal the Linda Lamone for Life Law”

Adam Pagnucco at Seventh State: “The bill [entrenching this Maryland official from removal] is so restrictive that the elections administrator could not be removed from office even if all five members of the State Board of Elections vote to fire her, even if she were convicted of first-degree murder, sentenced to death row and stripped of her voting rights. Only when the state Senate approves a replacement could she be removed. Now that’s job security.”

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In miniature, May 29

  • My law blog Overlawyered ceases publication this weekend after nearly 21 years, you can read its Maryland archives here;
  • How about “no.” Does “no” work for you? “Baltimore Wants To Sue Gun Makers Over Gang Violence” [Cam Edwards, Bearing Arms]
  • The environmental group fretted that suspending the bag tax will leave “the public with a false sense of security in encouraging single-use plastic shopping bags” which “are difficult to clean.” Yo, Sierra Club! That’s why they’re called “single-use” bags [Jim Bovard, American Conservative; Josh Kurtz, Maryland Matters]
  • Precinct-level reporting, confidentiality, ballots returned without signatures: the details of vote-by-mail (VBM) Maryland still needs to work out [Cheryl Kagan, Howard Lee Gorrell]
  • Some good ideas in here for your county or municipality, too: “D.C., Maryland Jurisdictions Start Deferring Taxes, Fees and Regulations” [Adam Pagnucco, The Seventh State]
  • Montgomery County development politics analyzed along the lines of the classic Bootleggers and Baptists model [Arnold Kling]

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