By Radley Balko
During the George Floyd protests, then-presidential candidate Joe Biden forcefully condemned the violent eviction of protesters from D.C.'s Lafayette Square just before President Donald Trump’s photo op at St. John’s Church. Biden declared that the police had violated the First Amendment and decried the “violence that’s being done by the incumbent president to our democracy and to the pursuit of justice.” But last summer, Biden’s Justice Department successfully argued that Trump, former attorney general William P. Barr and the officers who cleared the park should be immune from civil liability.
That wasn’t an anomaly for Biden’s first year in office. Despite voicing support for criminal justice reform, his administration has argued that federal officers should receive near total immunity, even for egregious abuse. Why?
One explanation would be the traditions around the Office of the Solicitor General (OSG), which represents the federal government before the Supreme Court. Though the OSG typically argues the position of the current administration, the OSG is expected to argue in favor of any federal law whose constitutionality is challenged in court, to side with police and prosecutors when they’ve been sued for misconduct and to retain a consistent position on cases as they move through the courts, even if a new administration with opposing views takes over in the meantime.
These customs might seem confusing — why should a new president uphold a predecessor’s policies they believe are unconstitutional? But it’s a widely held view in Washington, where the Office of the Solicitor General has a cherished nonpartisan reputation. After Barack Obama succeeded George W. Bush, acting Solicitor General Neal Katyal reviewed the outgoing administration’s legal positions. “We decided we were not going to switch in a single one of them,” Katyal recently told NPR. “Not one.”
As a result, the Obama administration argued Bush administration positions on issues such as the unlawful detainments of terrorism suspects, whether police should be excused for entering the wrong home without a warrant, whether states were obligated to provide physical evidence for post-conviction DNA testing, absolute immunity for prosecutors (even those who manufacture evidence that causes a wrongful conviction), limitations on Miranda rights and a particularly odious civil forfeiture law in Illinois. But if Obama and his administration truly disagreed with the Bush administration’s position on a case, it meant they put custom and the reputation of the OSG’s office above, for example, the righting of wrongful convictions.
And in early 2011, the Obama administration did break with OSG custom — in a big and conspicuous way — when Attorney General Eric H. Holder Jr. announced that the Justice Department would not defend (but also not oppose) the Defense of Marriage Act in federal court. By Obama’s second term, the OSG had reversed course from the George W. Bush administration in several cases.
If Obama put a crack in OSG norms, the Trump administration broke them wide open, effectively weaponizing the Justice Department and the solicitor general’s office to push Trump’s agenda through the court. I disagree with most of the Trump administration’s positions, and Trump’s use of the Justice Department to advance his personal interests was particularly dangerous. But when it comes to policy, it makes sense that the office that argues on behalf of the federal government would be in sync with the people who run the federal government.
So far, the Biden administration has contradicted the Trump administration on some positions, such as the use of public funds to pay tuition for private schools. But not when it comes to criminal justice issues. The administration argued to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev, for example, despite previously issuing a moratorium on federal executions. And though Biden has denounced police brutality, so far, his administration has reliably defended federal law enforcement (as well as state and local officers who work on joint task forces).
Inaction can also be as important as action. The U.S. Court of Appeals for the 10th Circuit recently ruled that there is no established First Amendment right to record the police, contradicting every other federal court in the country to rule on the matter. The man detained for recording police officers asked the Supreme Court to overturn the ruling. The Biden administration didn’t take a position, and the court declined to hear the case. (It’s at least possible, admittedly, that the OSG didn’t ask the court to review the case because it fears the current makeup of the court would produce the wrong outcome.)
The administration has also mostly sat out cases in which state prisoners have asked the federal courts to review their convictions for constitutional violations. The most recent example is Shinn v. Ramirez, which involves an Arizona death row prisoner who is likely innocent. That case, which was argued in the Supreme Court last month, particularly stands out because when restrictions on federal review of state convictions were passed in 1996, Biden vocally opposed them, explicitly citing the possibility of wrongful convictions.
At best, the Biden administration may have diverged from the Obama administration in that while Obama’s DOJ actively inserted itself into cases involving state police and prosecutors — in defense of the police and prosecutors — the Biden administration has intervened only to defend federal law enforcement (and the local cops who work with them).
Despite his vocal support for police reform and other criminal justice reforms over the past couple years, Biden has been a reliably law-and-order politician for nearly his entire time in public life. So it’s certainly possible that Biden’s OSG is reflecting his positions on these issues and not merely adhering to custom or tradition. It might also be that Biden’s administration just doesn’t prioritize these issues enough to breach decorum. Either way, the administration’s position seems to be to denounce the criminal justice system’s excesses while urging the courts to close their doors to its victims.
Opinion by Radley BalkoRadley Balko reports on criminal justice, the drug war and civil liberties for The Washington Post. Previously, he was an investigative reporter for the Huffington Post and a writer and editor for Reason magazine. His most recent book is "The Cadaver King and the Country Dentist: A True Story of Injustice in the American South." Twitter
Fox News' Tomi Lahren told officers at a policing conference that prominent police killings could have been avoided if people 'would just comply'
Tomi Lahren was among several who spoke at a police training conference in Atlantic City in October.
Lahren described Black Lives Matter as "thugs, felons, and criminals" and as a "terrorist organization."
She went on to say police shootings could be avoided if people "would just comply with police."
Fox News personality Tomi Lahren told police officers that significant numbers of police brutality cases could have been avoided "if people would just comply with police, would follow orders, and not resist arrest."
The Washington Post reported that Lahren, a political commentator for the Fox Nation shows "Final Thoughts" and "No Interruption," made the comments in October at the Street Cop Training Conference in Atlantic City, New Jersey.
More than 1,000 police officers from departments across New Jersey and other states attended the conference, The Post reported. During her speech, Lahren described Black Lives Matter as "thugs, felons, and criminals" and a "terrorist organization."
"If I'm wrong, please point it out," Lahren said, according to a sound clip of her remarks shared by The Post. "But all these major headline incidents that we've had in this country involving law enforcement in the last, at least, five years could have all been prevented if people would just comply with police, would follow orders, and not resist arrest."
The audience can be heard applauding and cheering in the clip.
Her comments were consistent with previous statements she has made on her shows and social media.
The Post's investigation found Lahren's sentiments were typical of those made in commercial police training settings, even as calls for reform grow. The outlet spoke with 18 trainers and experts in addition to watching or attending conferences in New Jersey and Idaho, many of whom balked at police reform.
Several blamed the media for overplaying the public's desire for reform and dismissed reformers as a small cohort, The Post found. The outlet also said many portrayed violence as an inherent part of policing.
"The curriculum is that you are a good person and reveling in violence and being an expert in violence is not morally wrong," Michael Sierra-Arévalo, a sociology professor at the University of Texas at Austin who attended the Street Cop Conference, told The Post. "In fact, it's your moral duty because you're a paladin. You are this kind of warrior."
Calls for police reform grew during the racial justice protests in the summer of 2020 after the murder of George Floyd by a Minneapolis police officer.
Congress engaged in bipartisan talks about a potential police reform bill last summer, but they fell apart without reaching a deal.
Sources told NBC News that President Joe Biden plans to sign executive orders on police reform as early as this month.
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