Plus, can Trump really send in the troops?

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Today’s read: 10 minutes.

What the left and right are saying about police reform, a reader question about whether Trump can deploy troops into U.S. cities and an update on the last 24 hours.

A Black Lives Matter protest in St. Paul, Minnesota from 2015. Photo: Fibonacci Blue

Reader feedback.

Yesterday, I used the expression “call a spade a spade” in my newsletter. Several readers wrote in to inform me that, because of the use of the word “spade” to describe black people in a derogatory sense, this expression — though it predates that word — has become a bit of a relic.

Obviously, it’s even more unfortunate that I used the expression in a newsletter that was almost entirely about racial tensions in the U.S. Suffice it to say, I had no idea — but it goes to show how difficult, complex and nuanced these issues are. And it’s a reminder how powerful and important language is. Fortunately, nobody wrote in particularly offended, more as a general “heads up,” but I nonetheless apologize if it came off as tone-deaf or insensitive. It simply didn’t occur to me.

A reader from Philadelphia wrote in to push back on my claim that “people weren’t going out on Friday nights looking for windows to smash or buildings to burn.”

“Some people absolutely were going out looking for windows to smash or buildings to burn,” they said. “There were a whole lot of white people and other non-black people out in the streets who were, in fact, doing just that. It's a complicating factor in this whole situation, but it's a nuance that I think is worth clarifying.”

To clarify: I was trying to make the point that before George Floyd’s death, people weren’t rioting in the streets — and clearly many were pushed over a line. But I do think it’s important to note that some rioters, however much a minority, are out there for the sheer glee of it and have no interest in protesting for a more just country.

Another reader sent me a list of 308 Minneapolis and St. Paul businesses that were vandalized, looted or completely destroyed along with a note about the federal officer who was killed while overseeing a protest in California. Their point was to say: there was loss of life and the destruction went well beyond just corporate businesses.

Finally, I had a reader write in about this sentence: “And if you were angrier, more upset, more moved to ‘speak up’ because you saw a burnt up Target in Minneapolis, Minnesota, than you were when you saw a black man killed for trying to pass a counterfeit $20 bill...”

They noted that I did not give Floyd the same presumption of innocence I gave the police — i.e. I said he passed the counterfeit bill as if it were fact, not an allegation. This was a great call out, and I hope my several other references to Floyd’s crimes as being allegations can convince you that it was a simple editing error and not meant as a presumption of his guilt. I updated the newsletter to read that he “allegedly passed a counterfeit $20 bill.”

I am grateful for all the smart people reading this newsletter and reading it thoughtfully and thoroughly. Remember: you can reach me anytime by just replying to these emails. Thank you.

5 quick hits.

1. President Donald Trump threatened to deploy federal troops into states and cities that do not find a way to calm protests in their cities. He also ramped up the presence of National Guard soldiers in Washington D.C. on Monday night. “I am your president of law and order,” he declared. “Where there is no justice, there is no liberty.”
2. After his address, the president walked from the White House to nearby St. John’s church. Police in riot gear used tear gas to disperse peaceful protesters to make way for Trump, and at least one priest was forcibly removed from the church for a brief photo shoot of the president holding a Bible and speaking to reporters. “I am outraged,” Right Rev. Mariann Budde, bishop of the Episcopal Diocese of Washington, said. “I don’t want President Trump speaking for St. John’s.”
3. Two separate autopsies concluded that George Floyd’s death in police custody was a homicide, but cited two different causes of death. The Hennepin County medical examiner cited “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” The autopsy “indicated heart disease, fentanyl intoxication and recent methamphetamine use,” WSJ reported, but the examiner did not cite them as the cause of death. Private medical examiners hired by Floyd’s family said he died of “Minneapolis police officers asphyxiating him by compressing his neck and back.”
4. Four police officers were shot in St. Louis and one in Las Vegas, and a Bronx hit and run was caught on video last night. The attacks against police officers marked another night of destruction in major U.S. cities. “Despite tens of thousands marching peacefully in demonstrations against police brutality and systemic racism, protests over Floyd’s death have been nonetheless overshadowed by violence, looting and vandalism,” Fox News reported.
5. Democratic presidential candidate Joe Biden addressed the nation this morning, vowing to create a national police oversight commission. “We need each and every police department in the country to undertake a comprehensive review of their hiring, their training, and their de-escalation practices,” he said. He also took aim at President Trump: “In addition to the Bible, the President might also want to open the U.S. Constitution once in a while."

What D.C. is talking about.

How to reform policing. As protests and riots continue over the death of George Floyd, conversations are happening across the country about how we can reform policing in the United States. And the timing is serendipitous: The Supreme Court is currently considering nine different cases that all address “qualified immunity,” a legal doctrine that states law enforcement officials are not liable for allegedly violating someone’s rights unless the actions violate “clearly established law.”

The law was established to protect government officials from lawsuits alleging they violated a plaintiff’s rights. It was meant to strike a balance between “the need to hold public officials accountable” and “the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

This controversial doctrine is being challenged from all sides and it’s one of the biggest, most basic policing reforms the right and left agree on. The doctrine means if a police officer violates your rights, you need to identify a previous ruling by a court against a law enforcement official on exactly the same conduct under the same circumstances, otherwise, the official is immune.

In the past year, USA Today reporters Patrick Jaicomo and Anya Bidwell say qualified immunity has allowed courts to grant immunity to “officers who stole $225,000, a cop who shot a 10-year-old while trying to shoot a non-threatening family dog, prison officials who locked an inmate in a sewage-flooded cell for days,” among others.

Here is how the right and left are talking about qualified immunity and other potential reforms to policing.

What the right is saying.

“Cops kill because we give them the legal framework to do it,” Jim Bovard wrote in the American Conservative. “The killing in Minnesota is the latest reminder that politicians and judges—through federal law and judicial interpretation—have turned police into a privileged class that is most often unaccountable, if not entitled to oppress other Americans.”

In National Review, John Fund made the case for examining how police unions protect bad cops. Fund wrote that “many police departments” have already taken the steps of better training, more civilian oversight and more diverse forces. But, “Maybe it’s finally time to consider the role that police unions play in perpetuating police brutality.”

One direct example is Jim Pasco, the 73-year-old executive director of the Fraternal Order of Police. Pasco believes it should be illegal for someone to record cops with their cell phones. And his union contains 342,000 members, all current or former officers who vote and hold influence at the local level. Even Derek Chauvin, the cop who held his knee on George Floyd’s neck, “had 18 prior complaints filed against him” that were kept private as part of a police-union negotiated contract.

In The Wall Street Journal, though, Jason L. Riley insists we be careful not to just pull cops back. Riley cited a 2016 study from Harvard economist Roland Fryer, who could find no evidence of bias in police shootings. Studies conducted by the University of Maryland and Michigan State University came to similar conclusions. “We didn’t find evidence for the anti-Black or anti-Hispanic disparity in police use of force across all shootings, and, if anything, found anti-White disparities when controlling for race-specific crime.”

Instead, what Fryer found was that when police were investigated following the use of deadly force, they pulled back — and then violent crime spiked. It happened in Ferguson, Missouri, Chicago and Baltimore. It’s not the investigations themselves, but the intention and virality of the alleged criminal act by an officer. Investigations that weren’t prompted by viral news events did not cause the same police pullback and increase in crime.

“Protesters have decided to vilify the police,” Riley wrote. “Rioters have decided to take advantage of the protests. And the media have expressed little interest in putting this tragedy in context. The activists tell us that what happened to George Floyd is commonplace and racially motivated, but the empirical evidence points in the opposite direction. Camera phones and social media may give fatal encounters between cops and black suspects more attention, but anecdotes are no substitute for hard data.”

What the left is saying.

The question of disbanding qualified immunity is a no-brainer. And most people on the left believe police unions have too much power to protect officers accused of wrongful conduct. The New York Times says the doctrine “allows cops to get away with murder.”

“Police officers don’t face justice more often for a variety of reasons — from powerful police unions to the blue wall of silence to cowardly prosecutors to reluctant juries,” The New York Times Editorial Board wrote. “But it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity from prosecution for actions taken while on the job.”

In Vox, German Lopez laid out eight specific reforms which experts said police need to make in order to turn things around. These reforms have been widely shared on the left and his writing is considered a set of guidelines for many. Number one, Lopez said, is apologizing. “Time and time again, I heard the same thing from several experts: Until police take responsibility for how they’re viewed in minority communities, they won’t be able to effectively police those communities.”

Massive distrust of police in communities of color exacerbates all the problems that already exist, and until police make a concerted effort to restore that trust it will be impossible to make other reforms. Black Lives Matter activists have also called on police to undergo training that addresses their inherent racial biases. One psychology professor conducted a study that showed police were quicker to pull the trigger against armed black men than armed white men.

One of the most common refrains from the left, though, calls for more training that emphasizes police action without use of force — or training to change how force is used. One example, in Las Vegas, was a new technique where officers involved in a foot pursuit were not allowed to be the first person to put their hands on a suspect. It had to be someone who came in to provide backup. The idea was foot pursuits often ended in excessive force because of increased adrenaline and combativeness. After the change, there was a 23% reduction in total use of force and an 11% reduction in officer injury, on top of reducing racial disparities.

“Safer for the officer, safer for the suspects,” Phillip Atiba Goff, the CEO of the Center for Policing Equity, said.

My take.

I’ll take all of it.

I remember when I first read about “qualified immunity” and how shocked I was that it even existed. This morning, reading about all the George Floyd news, I was totally thrown to read that these cases had finally made their way to the Supreme Court. I fear that there will be some legal technicality that prevents the court from hearing them, but the timing could not be better. There really is a unified front on the right and left about this.

There’s also a growing unity over how to treat police unions. It’s interesting to see the left pushing for a crackdown on police unions when unions — generally speaking — are a tool the left uses to preserve better working conditions for people. But that’s just the thing: far too many of these unions are increasingly interested in protecting their officers from scrutiny and accountability, as opposed to fighting for better wages or health insurance.

Riley’s article in The Wall Street Journal is worth reading — and the studies suggesting there is no bias in police shootings of unarmed citizens are compelling. I wouldn’t dismiss studies from Harvard or Michigan State in other circumstances, and I’m not going to dismiss them when they beat back against my preconceived notions of how police bias manifests itself.

Still, even accepting their conclusions, those studies account for a narrow sliver of police biases. They also say nothing about the fact that police shootings are still rarely investigated and almost never prosecuted — which is a huge part of the issue. For instance, similarly conclusive studies say non-white Americans are far more likely to be pulled over and searched in stops that do not result in a citation. In the event they do end up in court, black Americans will face a biased jury and far harsher sentences for the same crimes.

These basic policing and judicial biases need addressing — and you can read more exhaustive lists of how the system works against black Americans. Still, police reform isn’t just about race — even if this moment is about the racial injustices in the system. And systemic racism isn’t just about people being racist. In fact, it isn’t even primarily about that. It’s about the system producing outcomes with racial disparities. There’s a difference.

Police reform that addresses accountability could address the system and consequently address the racial disparities. Police reform is about the systems in place to protect officers from public scrutiny — systems that exist in very few other professions. It sounds like there is a growing consensus on police unions and qualified immunity. Independent review boards, more diverse police forces and body cameras — even if their use is imperfect — are already spreading nationally. These are all great steps.

Perhaps a re-evaluation of the unchecked injustices qualified immunity has ushered in and the way police unions cover up wrongful conduct should be the next major focus of improving how our communities are policed.

Tim Scott.

Keep an eye on Sen. Tim Scott (R-SC). Scott is the only black Republican senator in America, and he could play a crucial role in the federal government’s tone and response to the death of George Floyd.

So far, Scott has called for every officer involved in Floyd’s death to be arrested. He also blasted Trump for his tweets over the weekend, saying the remarks were “not constructive.” Then, today, he reacted to news of police clearing out protesters with tear gas so Trump could walk to St. John’s church.

“If your question is, should you use tear gas to clear a path so the president can go have a photo opp, the answer is no,” he said.

Scott has praised Trump, too, but his response — and the tone he takes — could be the north star for the GOP.

Your questions, answered.

Reminder: reader questions are one of my favorite parts of Tangle. If you have something you want to see in the newsletter, simply reply to this email and write in. I’ll try to get to it as soon as I can.

Q: My wife and I are very concerned with the words our president is saying today. Can you give us some info about the legality of his threats to use our military force to quell the protests?

— Dimitry, Washington, D.C.

Tangle: You’re not alone. For those of you who missed it, the president threatened to invoke the Insurrection Act of 1807 on Sunday and take the unusual step of deploying active-duty U.S. soldiers into U.S. cities.

The announcement drew widespread blowback on the left and right, and of course produced a number of people asking: can he actually do that?

The short answer: yes, he can.

The longer answer is a bit more complicated. The Insurrection Act has been used before, most notably in the 1950s to enforce desegregation laws, in the 1960s to quell riots in Detroit, and in 1992 to address riots in Los Angeles. Those were much more narrow uses of U.S. soldier deployment, and it’s worth noting that Trump’s threat was far more broad — addressing “cities” in general who could not get civil disobedience under control, as opposed to specific places.

In fact, members of the military are already on the ground. In Minnesota, they’re under the control of the governor, who brought in the National Guard. Stephen Vladeck, a law professor and CNN contributor, explained that the National Guard is basically wearing two hats right now.

Still, there is no real legal check on President Trump if he wants to send in U.S. troops to a U.S. city. He doesn’t need the governor’s approval. Historically, that check is just political. Already, U.S. governors are cautioning him against overreaching, and conservative voices like The Wall Street Journal editorial board have said definitively that it’d be a mistake to “send the troops” to U.S. cities. It’s a compelling read.

For what it’s worth, Trump’s national security advisor Robert O’Brien seems cold on the idea. “We're not going to federalize the Guard at this time,” he said. “But, if necessary, we have further military assets that can be deployed ... if the governors and the mayors need it and they can't get control of the situation.”

Other military officials at the Pentagon have also made it clear they object to the idea, saying active-duty military troops should only be called in if the governors say they desperately need reinforcements. That hasn’t happened yet.

Personally, I think it’s unlikely. But I also thought it was pretty absurd that Trump repeatedly suggested it, and I don’t want to underestimate what he might do in an effort to display power. It would be a catastrophic decision, though. The images of U.S. soldiers patrolling U.S. cities is an ugly, horrifying thought for most Americans. And the idea that they’d do better than the police or local leaders embedded in these communities is absurd.

Even the appearance of police in riot gear tends to make protests more tense, more violent, and more dangerous. What would dropping actual soldiers into these cities do? I have no idea. And I don’t like thinking about it.

A story that matters.

Automated background checks are incorrectly screening out innocent renters. “Algorithms that scan everything from terror watch lists to eviction records spit out flawed tenant screening reports,” The New York Times reports. “And almost nobody is watching.” Worse, most Americans are paying for the privilege of applying to rent housing and have their background checks done. One Minnesota woman with a clean criminal history applied to be a tenant, only to find out her “background check” turned up charges of domestic assault, selling meth, jumping bail, disorderly conduct, theft and lying to a police officer. The tenant screening industry’s estimated value is $1 billion. Click.

Numbers.

• 7th. COVID-19’s rank as a leading cause of death in the U.S. so far this year, behind things like heart disease, cancer and accidental injury.
• 1 in 4. The approximate number of all U.S. COVID-19 deaths that happened in nursing homes, according to a new analysis.
• 53%. The percentage of small businesses who say they are now open, according to a Goldman Sachs survey of small business owners.
• 39%. The percentage of small businesses who said they were open according to same survey a month ago.
• 5,600. The low-end estimate of arrests across the U.S. related to protests over the death of George Floyd, according to an Associated Press tally.
• 49%. The percentage of black Americans who think race relations in their community are generally good, according to a Yahoo/YouGov poll.
• 58%. The percentage of white Americans who think race relations in their community are generally good, according to a Yahoo/YouGov poll.

Have a nice day

A 103-year-old woman who beat COVID-19 celebrated the feat the way any 103-year-old grandmother should: with an ice-cold Bud Light (this is not an advertisement). Jennie Stejna tested positive for coronavirus in April and her family prepared for the worst. At one point, she had stopped eating and drinking and wasn’t expected to make it through the night. Her granddaughter’s husband asked her if she was ready to pass away, and Stejna responded with an answer that reminded me of my grandmother: “Hell yeah.” Instead, she woke up the next day feeling better. “I'm not sick anymore, Get the hell out,” she quipped to nurses. Then she asked for a cold one. Click.

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