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© Krantz News Service, December 8, 2014      

Where is the dividing line between law enforcement and civil rights? And are there better measures to assure that the line is bright enough to safeguard lives?

On Dec. 10 in New York State, a bill was introduced to direct the State Attorney General to conduct special investigations where an unarmed civilian is killed by a law enforcement officer. Undoubtedly more will follow.

To view a list of state legislation introduced to address these issues, click here.

In a statement on Dec. 3 after a grand jury declined to return an indictment in the death of Eric Garner, Attorney General Eric Holder stated that the Justice Department would investigate. 1/

"Mr. Garner's death is one of several recent incidents across the country that have tested the sense of trust that must exist between law enforcement and the communities they are charged to serve and protect," he said.

Speaking in Cleveland the following day, Holder announced that the Justice Department had "reasonable cause to believe that the Cleveland Division of Police engages in a pattern or practice of using excessive force -- in violation of the Fourth Amendment of the U.S. Constitution." He added that the city of Cleveland and the Justice Department were working together to find a "court enforceable" remedy. 2/

Holder said issues of force go beyond Cleveland. "We are currently enforcing no fewer than 15 agreements with law enforcement agencies -- including eight consent decrees -- to correct unconstitutional policing practices," he said.

The day after Holder's remarks in Cleveland, Ohio Governor John Kasich, a Republican who has been mentioned as a 2016 presidential prospect, /3 announced the formation of a task force in Ohio on community and police relations. 4/

He said the idea grew out of discussions with State Sen. Nina Turner (D-Cleveland) and other members of the Ohio Legislative Black Caucus.

Kasich spoke of "great frustration, some great division, polarization, in parts of our communities throughout the country, and that includes the communities in the state of Ohio."

He noted that it has been "an excruciatingly difficult time for members of the minority community, particularly the African-American community. As we look at things that have happened across the country, we have seen honest, hard-working, God-fearing people who have become exasperated. They want somebody to hear about their concerns."

"This is a big deal for the people of Ohio," Turner said. "The task force represents a first step to understanding what is going on, why it's going on, and how we can begin to tackle it." /5

Meanwhile, state lawmakers have prefiled bills in Tennessee, Missouri and Florida /6 and New York. /7

State Rep. Brandon Ellington (D - Kansas City), who will lead the Missouri Legislative Black Caucus in 2015, /8 has prefiled two bills requiring law enforcement officers to wear video cameras.

The legislation requires officers to wear both audio and video equipment and for law enforcement agencies to preserve the recordings for at least 30 days. It exempts undercover police officers.

In the New York incident, Eric Garner was selling individual cigarettes, "loosies," enabling buyers to avoid paying a tax of $5.95 on a pack of cigarettes.

Reason.com's A. Barton Hinkle describes a thriving market in cigarettes smuggled from low-tax Virginia for sale in high-tax New York. /9 He also spotlights the incentive for law enforcement to intervene:

"The robust cigarette smuggling irritates officials in New York, because they miss out on a lot of tax revenue. The trade irritates officials in Virginia for the same reason, because smugglers buy wholesale to avoid the retail sales tax."

This aspect of the Garner tragedy -- the high cigarette tax -- has been a focus of both prominent libertarian-leaning 10/ and conservative talk radio comment. 11/

But Stephen L. Carter, professor of law at Yale, writes that the concern is broader than a tax issue; the real issue is the proliferation of criminal laws, and what happened to Garner could happen to any of us. 12/

Carter cites to the analysis of legal scholar Douglas Husak on the "overcriminalization" of offenses in our society. 13/

With more than 3,000 crimes on the books, Carter notes, "(a) citizen who wants to abide by the law has no quick and easy way to find out what the law actually is -- a violation of the traditional principle that the state cannot punish without fair notice."

Lawmakers could reflect more, he argues, before adding more criminal statutes: "Husak suggests as one solution interpreting the Constitution to include a right not to be punished. This in turn would mean that before a legislature could criminalize a particular behavior, it would have to show a public interest significantly higher than for most forms of legislation."

Carter concludes by noting the potential dangers of criminalizing marginal conduct: "There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same advice I give my students on the first day of classes: Don't ever fight to make something illegal unless you're willing to risk the lives of your fellow citizens to get your way."

1/ Statement by Attorney General Holder on Federal Investigation Into Death of Eric Garner, Washington, DC, Dec. 3, 2014, Source: United States Department of Justice
2/ Attorney General Holder Delivers Remarks at Press Conference on Investigation into Cleveland Division of Police, Cleveland, OH, Dec. 4, 2014, Source: United States Department of Justice
3/ ABC News, Ohio Gov. John Kasich Not Denying Interest in Presidential Bid, By Mikayla Bouchard, via This Week, Dec. 7, 2014
4/ The Ohio Senate, Minority Caucus Blog, VIDEO: Senator Turner Joins Governor Kasich, Representatives Reece and Williams To Announce A New Task Force on Community-Police Relations, Posted Dec. 5, 2014 by Minority Caucus
5/ The Ohio Senate, Minority Caucus Blog, Task Force on Community-Police Relations Announced Today; Sen. Turner joins Governor, Attorney General, legislators in effort to build stronger, safer communities in Ohio, Posted Dec. 5, 2014 by Minority Caucus
6/ LegiCrawler, Florida and Missouri prefiled bills
7/ capitalnewyork.com, After Garner, S.I. lawmakers propose transparency bill, By Josefa Velasquez, Dec. 5, 2014
8/ kansascity.com, The Kansas City Star, The Buzz, State Rep. Brandon Ellington to head Missouri Legislative Black Caucus, By Steve Kraske, Nov. 7, 2014
9/ reason.com, How New York?s Steep Cigarette Taxes Create Crime and Grow Big Government -- The Nanny State encourages foul habits. A. Barton Hinkle, Dec. 3, 2014
10/ cnn.com, CNN Politics, Rand Paul blames Eric Garner?s death on high NYC cigarette tax, By Sara Fischer, CNN, Dec. 4, 2014
11/ rushlimbaugh.com, The Rush Limbaugh Show, New York Cigarette Taxes Killed Eric Garner, Dec. 4, 2014
12/ bloombergview.com, Law Puts Us All in Same Danger as Eric Garner, By Stephen L. Carter, Dec. 4, 2014
13/ Overcriminalization: The Limits of The Criminal Law, ISBN-13: 978-0195399011 ISBN-10: 0195399013 Edition: 2009 th Ed

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