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.]

“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

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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.

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

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