25 June 2014

Filming the Police and the Blatant Disregard for the Law in Buffalo

Stephen Kershnar
Buffalo Police Ignore The First Amendment
Dunkirk-Fredonia Observer
June 23, 2014

There is a recent case in Buffalo that illustrates how nationwide, police are trampling on a basic constitutional right. The case involved SUNY-Fredonia philosophy professor Leonard Jacuzzo. Full disclosure: Jacuzzo is a long-time professor in my department.

The Buffalo News reported that on June 15, 2013, Jacuzzo was walking home and complained to a bouncer at a bar (Toro Tapas Bar on Elmwood) about the crowd spilling out onto the sidewalk making it necessary to walk into the street. The bouncer was an off-duty police officer with a dark polo shirt that had “police” on the back and the Buffalo police logo in the front. The bouncer told him that he should leave or he would be arrested. When Jacuzzo asked “On what charge?” the officer repeatedly shoved him, even as he was walking away. Jacuzzo then called the police station to report the incident. Someone at the station told him that he could take up the matter with the bar’s owners or file a complaint.

The next night, patrons again spilled out of the bar, so Jacuzzo took a picture of the crowd with his cell phone and his flash went off. Three off-duty officers were present and one was sipping from a glass. When the three angrily confronted him, they demanded to know why he took a picture. He stated that he had the right to do so. They then demanded to know whether he was the one the one who called the police station the night before. After he said, “yes,” he was thrown to the ground. Knees were placed on his chest and ear and his phone was wrenched from him. He was then handcuffed and told he would be charged with obstruction. After being put in handcuffs, Jacuzzo claims, he was choked, slapped in the head, and one of his beers was opened with the suggestion that he should be charged with violating the open-container law.

A witness and former Jacuzzo student claimed that Jacuzzo was a mess. He tried to take his own phone record of Jacuzzo, but was told by one of the officers that he would could go to jail (presumably for taking pictures or video). His phone was then taken from him and the pictures deleted.

Jacuzzo was later charged with harassment, trespassing, disorderly conduct, and public drinking. The latter two charges were immediately dropped and the trespassing made no sense as he wasn’t inside the bar. Eventually, the remaining charges against Jacuzzo were adjourned in contemplation of dismissal.

In another Buffalo bar (Molly’s Pub), the off-duty police officers/bouncers were present and a patron was pummeled, kicked, and pushed down the stairs, causing him severe brain damage. One of the officers investigated for being part of the assault was already under investigation for slapping a video out of the woman’s hand and stomping on it. All this happened, The Buffalo News pointed out, despite the fact that it is illegal for police to provide security for bars (or other businesses involved in the sale or manufacture of alcohol). That is, the off-duty police officers for Toro Tapas and Molly’s were illegally moonlighting.

In yet another high profile case, The Buffalo News reported, Buffalo police officer John Cirulli knew that he had been recorded smacking a handcuffed defendant. He then insisted the citizen who recorded it erase the recording. The citizen convinced Cirulli it was erased, when it wasn’t.  

In 2011, a Rochester, New York woman was arrested for filming a police stop from her own front yard. As in so many cases, the woman was arrested for obstruction, with the officer making the ridiculous claim that her recording made him feel unsafe. The charges were promptly thrown out on First Amendment grounds.

In 2010, Adam Cohen, writing in Time, reported that a New York City police officer was videotaped going up to a man on the bike and shoving him to the ground. The officer claimed the cyclist was trying to collide with him, but the video showed this was a lie. Eventually, the officer was thrown off the force and convicted of filing a false report. This would have happened but for the recording.

Despite these activities, it is clear that in New York and 47 other states citizens are permitted to record police in public so long as they do not interfere with their work and do not do so secretly. This is likely true in every place in the U.S., regardless of state law, because the First Amendment protects the recording. In Glik v. Cunniffe, 655 F.3d 78 (2011), the First Circuit (federal appellate court for Massachusetts and neighboring districts) held that there is a constitutionally protected right to videotape police carrying out their duties in public. The court argued that gathering information about government officials in a form that can shared with others is an important part of allowing citizens to discuss how the government is doing its job. It noted that protecting this discussion is at the heart of the First Amendment. The court further argued that that filming police officers doing their jobs when on public spaces is just such a gathering of information. The court observed that this right has been widely recognized elsewhere, for example, by the 7th, 9th, and 11th  circuit courts.

Nor, the American Civil Liberties Union (ACLU) points out, can the police block the videotaping by claiming that all parties must consent to taping (inapplicable to New York, which does not require this), because in nearly all states this applies only when there is a reasonable expectation of privacy and no state court has held that police officers doing their job in public have a reasonable expectation of privacy.

The ACLU reports that police may confiscate a camera if they have a reasonable, good-faith belief that it contains evidence of a crime by someone other than the officers themselves (it is controversial whether they need a warrant to view them), but them may not delete the photographs or video under any circumstances. Nor, it notes, can the police order people to cease activities that are not interfering with a law enforcement operation, for example, when filming at a reasonable distance.

In the Buffalo case, it is important that the officers involved be fired. Not merely for their acts of battery and false arrest, but also because their knowledge of the law is completely inadequate. We should see how tough they really are when up against correction officers. The Buffalo Police Commissioner Daniel Derenda should be promptly fired and his name blackened so he is never hired again. He failed miserably to ensure that his officers not systematically violate people’s basic rights, file blatantly false charges, follow the law on moonlighting, and, in general, refrain from acting like the Crips and Bloods. Far too many Buffalo police officers have earned our contempt.   

03 June 2014

Obama on Equal Pay for Women

Stephen Kershnar
Equal Pay Rhetoric: Political Silliness
Dunkirk-Fredonia Observer
May 16, 2014

Recently, President Obama said, “Today, the average full-time working woman earns just 77 cents for every dollar a man earns. … [I]n 2014, that’s an embarrassment. It is wrong.” He used this to justify an executive order that forced federal contractors to allow employees to discuss their wages. The Senate has also been considered the Paycheck Fairness Act. This bill would allow women to sue for unlimited compensatory and punitive damages for pay discrimination and would make it easier for class-action lawsuits about such discrimination. This movement is a mistake in fact and theory.  

Obama’s and the Democrats’ motivation is political. Single women are a big part of the electorate (25%). Since 2000, they are growing more than twice as fast as married women. Single women just love Democrats. In 2012, they favored Democrats over Republicans 67% to 31%. Obama and company think this push for pay equality will help them turn out single women.

There are several reasons to reject this movement. First, the relevant pay gap between full-time workers is not 77 cents. Writing for the Independent Women’s Forum, Charlotte Hays points out that this number (and the related the Bureau of Labor Statistics estimate of 81%) leaves out relevant differences. Consider hours worked. In 2012, men were roughly twice as likely as women to work more than 40 hours a week. Women who did work a 40-hour work week earned 88% of what men earned. Next consider marriage and children. Again in 2012, Hays points out, single women who have never married earned 96% of men’s earnings.

Also, Cornell economists Francine Blau and Lawrence Kahn point out that women have less full-time work experience (on average 3.5 fewer years). They also have more discontinuous careers than men due to marriage and children. These differences, Blau and Kahn argue, make it likely they invest less in developing their work skills (for instance, less on-the-job training). They further note that the sexes tend to choose different fields. Men are more likely to choose blue-collar jobs (for example, construction); women are more likely to choose pink-collar jobs (for example, clerical work). Blue-collar jobs usually pay more. Men are also more likely to be in a union. Blau and Kahn speculate that because women work harder at home than men, they might work less hard at work. If one group works fewer hours, has less years of work experience, invests less in skill development, and chooses lower paying fields, it stands to reason that they get paid less.

Second, if we’re worried about pay gaps, the gender gap should not be a priority. Forbes writer Kyle Smith points out that Latino men in the U.S. make only 77% of what other workers (men and women) make. Latino women make even less (68%). In contrast, Asian men make a whopping 37% more per hour than other Americans. He notes that no one is pushing a Latino Pay Equality Act or Asian Men’s Pay Reduction Act. Note that given the limited amount of wages a business can pay out without going under, paying one group more (for example, Latino women) means paying another less (for example, Asian men). I doubt the American left thinks that Asian men should be explicitly forced to hand over some of their income to Latino women.     

Even worse, Smith notes, food preparation and service workers make 23% of what aerospace engineers make and 20% of what lawyers make. Apparently, the President and Democrats don’t love them as much. If you argue that these differences are the result of differences in education, training, hours per day or year, responsibility, and so on, then these differences are also relevant to the gender pay gap.  

Third, if women really did get paid 77% for the same work as men, this gap would not last. Firms would hire lots of women as a way to sharply reduce their labor costs. This would allow them to lower the cost of their goods, which would then undercut the discriminatory firms, driving them out of business. This is similar to how basketball teams that discriminate against black players would lose games and fans and later go out of business.   

Fourth, if we are to make sense of the notion that one worker deserves more pay than another, and I doubt we can, desert likely depends on what a worker contributes to others. One person does not deserve more money than another merely for working harder or sacrificing more. If one worker uses a shovel to dig ditches and another uses a backhoe, the latter deserve more pay because he dug more and better ditches, even though the shovel-user worked harder. But what a worker contributes is best measured by the market price for his work. This is because what a person contributes is a matter of what he produces and how much it costs to replace him. This is what the market focuses on. It is far from clear that the market is biased in assessing what men and women contribute given the differences in hours, experience, and skill.      

The pay-gap argument is unconvincing. Long ago, the labor market would have eliminated such a gap. Instead, it should be understood as the latest dishonest attempt to grab single-women voters.