The Connection Between Police Brutality, the War on Drugs, and Gun Control

The War on Drugs has claimed another innocent family among its victims. Fortunately, no one died in this latest episode. But an 18-year-old teenager has been arrested and charged with attempted murder for actions that any reasonable person should view as self-defense. Here's what happened.

In April, a SWAT team from the Austin Police Department raided the house of teenager Tyler Harrell and his parents. The raid took place before 6 a.m. in the morning and proceeded in a typical shock-and-awe fashion. Police officers breached the door and threw flash-bang grenades into the house with the intent of disorienting the occupants. Meanwhile, a loudspeaker announced that the organization conducting the raid was the APD.

It's difficult to imagine the stream of thoughts that must go through one's head when they wake up to a series of loud noises, explosions, and screams of family members. In this case, Tyler Harrell claims, not unreasonably, that he believed his family's home was being invaded and that he and his parents were in danger. So he grabbed his (legally owned) rifle and shot at the intruders down a stairwell, hitting a police officer in the leg. Another officer unsuccessfully returned fire, and the SWAT team soon retreated from the house. Harrell came out and surrendered peacefully shortly thereafter, according to the write-up from the Austin American-Statesman.

Harrell claims to have heard the intruders shout that they were APD only after he had fired on the men. Meanwhile, the police are effectively claiming he must have known the officers were police, given that they were announcing it over a loudspeaker. Thus, they are accusing him of willfully trying to kill a police officer and have charged him with attempted capital murder.

The purpose for this raid was that police suspected Harrell of dealing drugs, specifically marijuana and possibly cocaine. During the raid, police found 34 grams of marijuana, which is not even enough to merit a felony in the state of Texas. But in order to root out this unspeakable crime against humanity--namely, the possession of a particular dried plant--the police conducted a violent and dangerous raid, which left one person to the hospital and now has the potential to ruin a young man's life.

The only real good news is that it appears the crime Harrell has been charged with will be almost impossible to prove. Based on my brief research, the crime of attempted capital murder would seem to require Harrell to know, at the time, that the person he shot at was a police officer conducting his lawful duties. Given the circumstances of this event, and the fact that Harrell surrendered himself peacefully a few minutes later after the SWAT team retreated, this is implausible. It would mean that Harrell knowingly made the decision to try to fight off the APD SWAT team by himself, but then decided to surrender a few minutes later, after they had retreated. Clearly, this narrative makes no sense. And one hopes, for his sake, that jurors won't believe that preposterous story is true beyond a reasonable doubt.

Stepping back from the specifics, there are a few broader issues to unpack here.

Media Deference to Authority
The first issue is how absurdly deferential local media can be towards the police when covering stories like this. For example, this article from KXAN, the local NBC affiliate, cites exactly no information from the perspective of the accused or his lawyer, and then wraps up with this gem from the police chief and president of the local police association (emphasis added).

"Although people have tried to take two lives of our officers, our folks still come to work day in and day out in the mission of keeping Austin one of the safest big cities in the country,” said [Police Chief] Acevedo. “I hope the public takes some time to help me help lift them up in these challenging weeks.” 

The president of the Austin Police Association also made a point to mention, all officers are on high alert as they deal with a culture that seems to be bold enough to shoot officers.

Yeah, maybe it's the culture. Or, maybe it's the fact that you storm people's houses while they're asleep and lead with explosives--explosives whose whole purpose is to disorient the target. Nah, probably the culture thing. Video games corrupting the youth and what not.

This is unhelpful. When police do stupid things, like needlessly escalating a situation before trying any alternatives, they should be called on it. Maybe that will discourage them from doing it again in the future. Maybe it could also influence jurors or the prosecution not to destroy Harrell's life over this.

(Note one of the "two lives" mentioned in the quote above relates to an unrelated incident that had occurred shortly before the raid.)

The War on Drugs is Awful
The intensity of the raid conducted in this case seems disproportionate for almost any suspect. Perhaps if someone was known to be a dangerous murderer / terrorist / rapist, an argument could be made. The fact that it was actually about a little over an ounce of pot makes this story even worse.

And yet, this is what happens in the War on Drugs all the time. It's not clear that Harrell even was a drug dealer, as the authorities initially suspected. But even if he was, would that justify launching a military-style raid on his parent's house?

Which leads us to another issue. To a far greater degree than other law enforcement matters, the War on Drugs has to deal with a lot of ambiguity. This is the nature of victimless crimes. In a consensual sale of drugs, neither the seller nor the buyer has any interest in reporting the crime; indeed, since they're both breaking the law, they have a clear incentive to be as quiet as possible about it. In turn, this makes the police's job considerably harder. They can't get leads from a victim or a crime scene, because neither of those exist. Instead, they have to set up sting operations and take more action based on less evidence. That's not a formula that's likely to turn out well. In this case, the APD may have thought they were conducting a raid on Austin's equivalent of Scarface, a person dealing narcotics and armed with automatic weapons. Instead, they probably just found a teenager who likes to smoke pot. That's a serious margin of error.

Stigmatizing Legal Gun Ownership
We mentioned earlier that Harrell's gun was legally owned. This seems like a small detail in the context of this story, but it's actually critical.

You see, the reason the APD made (and now defends) the decision to use a paramilitary SWAT approach stems from their initial investigative work. They sifted through the personal garbage of the Harrells and allegedly found three items of note: a plastic bag with marijuana residue, a substance that tested positive for cocaine, and empty ammunition boxes. This last item is what justified the SWAT team.

But why should that be the case? If Harrell owned the weapon legally, why is it reasonable to assume he's any more prone to violence and criminality than anyone else? I confess I don't know much about guns myself, but it seems to me the police probably should. And given that the gun was legal, it follows that the ammunition they found was compatible with legal weapons. Surely, people who deal with weapons and gun laws on a daily basis would know something like this. In spite of this, however, Reason notes that the police have continued to inaccurately refer to the weapon as an AK-47, in an effort to vilify Harrell.

This same issue is seen at play in the broader story of police brutality in the US. Of the stories that broke into become national news stories, most involved individuals that were unarmed--Michael Brown, Eric Garner, Akai Gurley, etc. In cases where the victim had a gun or another weapon, authorities use it to imply criminality and avoid accountability.

This general pattern is also evident in the statistics that are used to track police brutality incidents, as compiled by The Guardian. Here, events can be filtered based on the type of weapon owned by the victim, if any. But it doesn't attempt to draw any distinctions between whether the weapon was legal or not, or whether it was pulled out. The Guardian's tool is a fantastic resource, but this is a major limitation. The question of whether a police shooting was justified shouldn't hinge on whether the victim happened to possess a weapon. It should depend on whether the victim was actually a threat to anyone around them. Those are not at all the same.

In the discussion that ensued following our earlier post this week on the Orlando Shooting, I suggested one possible reason to oppose gun control is that it can create a stigma around legal gun owners. In turn, this can be used as a justification for disproportionate force to be used against otherwise peaceful people. This is not just a theoretical argument. It's the reason Tyler Harrell and his family woke up to a violent assault on their house one April morning instead of a knock on the door.

Bernie's Odd Contradiction on Smoking and The Importance of Principle

The presidential campaign of Bernie Sanders has been a deeply frustrating spectacle. While he doesn't offer much to like from a libertarian perspective, his primary opponent, Hillary Clinton, is the most adamantly militarist candidate in the race. Thus, among the Democrats, Bernie is the preferable candidate by default.

That's why I wish he'd make it easier to support him. Just about every time he comes out and says something good, there's a little something in his record or his outright remarks that is there to spoil it. It's kind of a story of two steps forward, (at least) one step back. Here are some choice examples:

• Finally criticizes Hillary Clinton on Libya (lightly) in a debate... but she correctly points out that he actually supported (co-sponsored) a resolution that condemned the Libyan government. (This resolution didn't ultimately justify the war, but it was an early attempt toward that direction. And this is typically how the foundation for regime change gets laid.)
• Opposes the death penalty domestically... but still supports the use of drone assassinations
• Opposes Hillary's no-fly zone proposal in Syria... but his preferred solution is to support the Saudis and other Gulf states to do more in the region. I'm sure that would turn out great.

Now, it appears we add another example to the list, smoking. Allow me to explain.

Recently, and don't ask me why, the issue of soda taxes has come up in the Democratic Primary. Bernie Sanders took the correct position on this issue, opposing the imposition of soda taxes, while Hillary Clinton supports them. To his credit, Bernie's reason for opposing the soda tax was also logical and appropriate--namely, that soda taxes are disproportionately paid by low-income people because they tend to drink soda more. Thus, the taxes are regressive by design (where poor people pay a greater share of their income toward the tax than rich people do), and it's consistent with Bernie's focus on income inequality to oppose it on this basis.

The problem came a couple days later in an interview with Meet the Press. Bernie was asked again about the soda taxes, and basically restated the position above. Then, the host asked if he felt the same argument should apply to cigarette taxes. After all, cigarettes are also consumed primarily by lower-income people, and are thus also regressive. Bernie's response to this line of questioning was about as bad as possible:

CHUCK TODD:
So you must be against cigarette taxes, too, then? 

SEN. BERNIE SANDERS:
No, I'm not. Cigarette taxes are-- there's a difference between cigarettes and soda. I am aware of the obesity problem in this country. 

CHUCK TODD:
I don't think Michael Bloomberg would agree with you on that one? 

SEN. BERNIE SANDERS:
Well, that's fine. He can have his point of view. But cigarettes are causing cancer, obviously, and a dozen other diseases. And there is almost the question as to why it remains a legal product in this country.

See what happened there? The difference between soda and cigarettes is one of degree, at least in the context above. No one would dispute that soda and cigarettes are both harmful to our health. It can be argued that cigarettes are more harmful on a per use basis. But the essence of the question is the same. Both taxes primarily hurt poor people, and both taxes would be applied to a voluntary action--thereby assuming that the government should be in the business of helping tell poor people how to live a better life. It's not often appreciated in this context, but we should recognize that there's something deeply creepy about that. This is typically most obvious when one learns about preposterous antiquated laws against certain sexual behaviors (like sodomy) that were deemed deviant at the time, or, to use a more modern example, laws against marijuana use that grow more unpopular by the day. What all these laws have in common is that the government is trying to get involved in people's personal lives and influence their personal behavior, either to prevent them from harming themselves or being morally corrupted. They don't work, and they shouldn't be tried in the first place.

But speaking of pot, there's actually something even more alarming about what Bernie said above. Really, he wasn't just taking a hypocritical position on cigarette taxes. On the contrary, he was, at least implicitly, taking it a step further and suggesting that cigarettes should possibly be totally illegal. Over at Reason, the irony certainly was not lost on them. The same Presidential candidate that has openly called for marijuana to be legalized was hinting at banning the use of a different smokeable plant--namely, tobacco.

Of course, to be fair to Bernie, I don't anticipate him rolling this out as a platform plank any time soon. But the fact that this is how he thinks is bad enough. It doesn't make sense. And it highlights one fundamental problem with Bernie's campaign--when it comes to key issues, many of Bernie's ideas aren't grounded in principle. Instead, he seems to be taking them on a case-by-case basis, so we shouldn't be surprised that he can get something like this wrong.

To see this, it's worth trying to come up with a consistent rule that could justify all three positions: Don't tax soda, do tax cigarettes (or ban them), and legalize marijuana. Here's a few leading contenders we can rule out.

• Everything giant corporations are involved in is evil.
• This one seemed promising at first given Bernie's sensibilities, but it breaks down on soda taxes. Pepsi and Coca-Cola are giant corporations as surely Phillip-Morris is so this one isn't going to work.
• Taxing or banning habits common to poor people is wrong.
• Unfortunately, cigarette taxes / prohibition would break the rule here.
• People should be allowed to make their own choices about health without government interference.
• Again, cigarettes break the mold.

The effective rationale Bernie must deploy to square these ideas is that we shouldn't tax poor people and people should generally get to make their own decisions, but if the habit is potentially deadly, then government can try to stop it. Of course, this is essentially the same thing as taking a case-by-case approach. Who decides what the threshold is for when something is so deadly that it needs to be prohibited or taxed? What are the standards? And do we even know that cigarette smoking is actually worse for your health than marijuana? I'd guess that it probably is. On the other hand, marijuana is thought to impair your driving abilities while cigarette smoking does not. How does that factor into the calculation? And can someone please get me some kind of decision matrix so I can figure out what position to take here?

See how complicated that gets? Frankly, I feel bad for Bernie. If that's what I was working from and I was put on the spot, I don't think I'd do much better than he did. But if you have real, sound principles, it's easy to know the correct, and intellectually consistent position. And naturally, as a libertarian, I'd recommend the nonaggression principle. Let's try it out.

The nonaggression principle holds that people should basically be allowed to do as they like, provided they do not harm other people or violate their property rights. The popular shorthand is "Don't hurt people and don't take their stuff." Using the nonaggression principle, here's how libertarians would respond to a few of the questions we've been discussing: 

• Should the government place a tax on soda?
• Are you serious? Absolutely not.  A person's decision to drink soda does not harm anyone besides the consumer. They should be free to do what they want, and the government shouldn't be involved.
• Should the government ban smoking cigarettes?
• No. Again, a person's decision to smoke cigarettes primarily affects only them. Thus, they should be free to do what they want and government shouldn't target them. Having said that, there is a chance that secondhand smoke can affect other people, which brings us to...
• Should the government ban smoking (cigarettes or otherwise) in establishments open to the public (restaurants, bars, etc.) in order to prevent harm caused by secondhand smoke?
• No. Individual property owners should be allowed to decide whether or not they allow smoking in their establishments; the government should not make a one-size-fits-all decision in either direction. In publicly owned places, like parks or government buildings, however, the issue gets more complicated. Ideally, libertarians would suggest limiting the amount of publicly owned property to minimize the dispute.
• Should the government legalize marijuana?
• Yes. Again, private people should be allowed to make choices for themselves and the consequences of marijuana consumption fall on the consumer (aside from the secondhand smoke issues, which we addressed above.)

There are no contradictions, and it's not hard to figure out. And note that I support the positions above in spite of the fact that, personally, I cannot stand cigarette smoke. Seriously, it's a little ridiculous how much I dislike it. If I'm in a group of people where just one person happens to be smoking, even if it's outside, I have to leave. I just physically don't tolerate it, and I get choked up whenever I'm near it. And to the extent that smoking is occasionally a social phenomenon, it makes me act more than a little awkward. Fortunately, my personal preferences are not relevant here. I would hate to see my favorite restaurants reintroduce smoking if Portland's current ban was lifted, but even so, I would absolutely vote in favor of lifting the ban to let private property owners decide.

If you have principles, then arbitrary preferences cease to matter. It's easy to determine the right positions, and you never have to worry about being a hypocrite, either on foreign policy or domestic policy. And while it's true that the nonaggression principle isn't sufficient to determine your position on every issue, it's a pretty good starting point. At least on questions of personal liberties, Bernie would do well to try it out.

Nebraska Passes Law Severely Restricting Civil Asset Forfeiture

The governor of Nebraska just signed in a law that almost entirely eliminates the practice of civil asset forfeiture in the state. If you believe in the idea that people should be considered innocent until proven guilty by the courts, then this is great news.

Civil asset forfeiture is a harmless-sounding phrase that actually represents one of the worst things that government does (domestically, that is). In a nutshell, civil asset forfeiture refers to the practice where law enforcement confiscates someone's assets, regardless of whether they have been charged or convicted of a crime, and then is allowed to use a share of the proceeds from the assets to support their own department. If a victim (i.e. the person whose assets were confiscated) wants to get their property back, they have to prove that the property was not derived from criminal activity. Or, in other words, they have to prove innocence, instead of requiring the courts to prove guilt.

If this seems a little backwards, it should. And like many bad and harmful ideas, this one is usually justified in the context of the War on Drugs. The basic idea is that this will allow cops to cut off the resources from the "bad guys". And in a perverse way, there's actually some logic here. Obviously, most drug transactions, being transactions, are voluntary. There is a seller and a buyer, and as long as no force or fraud is involved in the process, it's a voluntary exchange between two parties that both get something they want, just like any other transaction in the marketplace. While that would seem like a good thing, it creates a problem for law enforcement. Obviously, if both parties to the sale benefited, neither has a compelling reason to report the other to law enforcement for breaking the laws on drug prohibition. This, in turn, makes it harder for law enforcement to find and prosecute these people. It also happens to make the illicit drug industry more profitable, since the likelihood of being caught is relatively low. (We've also previously commented on the less-than-intuitive fact that illegal nature of drugs also directly increases profitability from the drug trade for people that are willing to participate in violence.)

Now, the correct and rational response to the problem outlined above is to stop trying to enforce drug laws. They are the quintessential victimless crime, and whatever harm drugs may do, that harm is confined to the user, is demonstrably not prevented by making them illegal, and is, frankly, none of anyone else's business besides the drug-seller and drug-consumer.

Unfortunately, law enforcement, and government generally, do not have a strong track record for favoring libertarian solutions. Civil asset forfeiture is one of the alternative solutions they have come up with instead. So it's hard to prove that a suspect has committed a drug crime, eh? Well, let's just take their money and assets, and make them prove they're innocent instead! What could possibly go wrong?

The answer, it turns out, is quite a lot. Innocent people get swept up in the scheme all the time. And rather than recounting the details here, I'd recommend this excellent (and thankfully non-partisan) segment from Jon Oliver on Last Week Tonight.

On the plus side, Nebraskans have just taken bold action to limit civil asset forfeiture. And for the details on that, check out this quick write-up from Reason.

Nebraska Ends 'Civil' Police Forfeiture Process, Will Require Convictions

Legal Marijuana Cutting into Drug Cartel's Business

New evidence has come out regarding the impact of legalized marijuana on the drug trade, and it's good news for just about everyone--everyone except the Mexican drug cartels. Just two years after legal recreational marijuana sales began in Colorado and Washington in 2014 (Oregon and Alaska joined later), the Mexico marijuana industry is already feeling the pinch. Prices are down, quality is up, and the number of marijuana seizures at the US-Mexico border were at their lowest level in a decade in 2015.

This outcome may sound strange at first glance, but it's precisely what economic principles would predict. To understand this, we first have to realize that marijuana prohibition isn't actually a categorically bad thing for marijuana suppliers. Yes, it makes their business model illegal, but this is a mixed bag. On the one hand, it clearly raises the costs of their business, as they have to take various precautions to avoid getting caught. However, it also keeps out competition from legitimate businesses, making their product more scarce. This, in turn, allows them to charge higher prices. Additionally, the black market nature of the transactions would also allow the cartels to do more price discrimination than other businesses. Most customers won't be able or willing to compare prices among a lot of different suppliers, and this also tends to give an upper-hand to the marijuana sellers.

There is also a demand-side effect here. Certainly, there are some people that will be unwilling to do pot precisely because it is illegal. But the dramatic growth in pot use in the US over time suggests that this deterrent effect is not nearly as strong as lawmakers might hope. (And note that the study in that link referred to 2012-2013, before the recreational legalization laws took effect.)

The net effect of the above rules is that production will shift to places with laws that either more relaxed or less well-enforced--or places where the local authorities can be readily bribed to look the other way. In other words, prohibition would tend to shift production to places like Mexico. And since the entire enterprise is already illegal and cannot use the court system to settle disputes, the most violent organizations will come to dominate the industry. Instead of driving their competition out based on superior quality or pricing, they drive them out with force. The customers suffer, but the businesses that do survive make a killing. (Sorry about that.)

When you legalize pot, the above effects are reversed. There's no reason to import pot from Mexico to Oregon, if you can already purchase it locally. And as long as complying with the regulations is not too onerous, most people will make the calculation that it's worth making your supply chain fully legal to avoid the risks of legal consequences. Just as important, the barriers to entry for new competitors get reduced dramatically. Once the exclusive province of (mostly) criminals and hippies, marijuana production has become a lucrative business enterprise for anyone to try their hand at. The result is more professional production practices and economies of scale that couldn't be achieved by people that had to hide their operation from the authorities.

Best of all, legal businesses will compete on who can provide the best price and quality rather than who can engage in the most gratuitous violence.

Of course, there is a chance that one byproduct of cheap, high-quality marijuana is that it will lead more people to use the drug. But this is not a serious problem. Most of the problems associated with illicit drug use derive precisely from the fact that the drugs are illegal. Yes, some drug deals end in violence. But this is precisely because they can't in court. Some illegal drugs are also highly addictive and harmful to one's health. And we think of this addictive quality as driving people to take desperate, often violent measures, like theft or robbery, to get a fix. Fair enough, but cigarettes are also deeply addiciting. How many stories have you heard about a tobacco junkie trying to rob someone for his next packet? I'm guessing not many. Moreover, there's a flourishing industry focused on producing over-the-counter treatments designed to help people get over their addiction to tobacco. People can buy them cheaply, discreetly, and without judgment. Meanwhile, if someone wants to get help for an addiction to illegal drugs, they have to begin by, in effect, acknowledging they are a criminal.

Drug prohibition is a clear example of how the cure can sometimes be worse than the disease. And it doesn't achieve its stated purpose anyways. At least in the case of marijuana, demand has been growing not shrinking in recent years. Making something illegal does not make it unwanted. So even if we did want to impose our arbitrary definition of morality on the rest of America and keep marijuana illegal, the reality of human nature would ensure our failure--certainly on pot, and probably on just about every other vice as well.

There are many compelling arguments against drug prohibition. Libertarians would correctly describe marijuana sales or usage as the epitome of a victimless crime, and suggest we shouldn't make laws against behavior that does not infringe on anyone else's rights. Many others would note the racially disproportionate nature of drug law enforcement, and might reasonably argue that the institutional racism built into the drug war is enough to justify its repeal.

But even if you don't find these moral arguments compelling, economics and pragmatism should still convince us all to favor legalization. The relevant question here is not whether we think using marijuana (or other drugs) is a good idea; it will be used regardless. So the real question is whether we would prefer the drug trade to benefit enormously violent criminal organizations or nonviolent, tax-paying businesses. I'll let you answer that for yourself.

In short, this new evidence is exactly in line with what economists and libertarians would have predicted all along. The end of the War on Drugs will also be the end of the drug cartels. Let us hope it comes soon.