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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: Rage in the Sky passengers have hit flood attendants in

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Speaker 1: the face, interfered with the flight crew, and refused to

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Speaker 1: wear masks, among other things. What what what what? What?

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Speaker 1: Boys remains We're going to part every advocate, Police and

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Speaker 1: authorities will be boarding between to arrestide time. The reports

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Speaker 1: of unruly passengers during the pandemic this year far exceeded

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Speaker 1: anything the Federal Aviation Administration has seen in the past.

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Speaker 1: Yet few passengers faced criminal charges. Joining me is Alan Levin,

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Speaker 1: Bloomberg Aviation reporter start by telling us about this passenger

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Speaker 1: on the Alaska Airlines flight in January from Seattle. Yeah,

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Speaker 1: that's actually a really interesting case. This was an Alaska

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Speaker 1: Airlines flight in Seattle. It was just about to depart

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Speaker 1: and a man on the flight allegedly began calling one

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Speaker 1: reporting a hijacking and was quite vivid. He said there

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Speaker 1: was a hijacker who had a flight attendant at knife point.

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Speaker 1: There were multiple calls the plane, I guess it began

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Speaker 1: to depart, but then authority notified the airport lane was

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Speaker 1: taxi to a secure area. Police came on board to

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Speaker 1: start the situation out. And during this time he also

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Speaker 1: called the FBI and made some sort of vague reference

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Speaker 1: to a bomb. Now, you know, once a hijacking is

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Speaker 1: reported like that, you have to re screen the passengers

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Speaker 1: and they had to rescreen all the bags to make

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Speaker 1: sure there was no bomb on board, check all the

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Speaker 1: passengers to make sure nobody had a knife that was reported, etcetera.

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Speaker 1: And under federal law, making a false report of a

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Speaker 1: hijackie it's quite a serious criminal charge. It carries a

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Speaker 1: five up to five year prison term along with a

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Speaker 1: have to be fine, etcetera. But this is sort of

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Speaker 1: what happened to some of these unruly passenger cases. It

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Speaker 1: was referred to the county prosecutor in Under Washington state law,

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Speaker 1: there is no equivalent charge to making a false hijacking report.

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Speaker 1: There are you know, serious sylonies in mistakes for things

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Speaker 1: like making a threat. But in this particular case, the

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Speaker 1: hoax threats there was no knife, there was no bomb,

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Speaker 1: there was no real threat. So they've not been able

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Speaker 1: to charge this individual. They're looking at making filing charges

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Speaker 1: on a misdemeanor account of making a false report, which is,

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Speaker 1: you know, less serious matter and we were not able

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Speaker 1: to determine why, but the case was never referred to

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Speaker 1: the federal government and no charge federal ars are being brought.

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Speaker 1: So it's sort of illustrates the difficulty in these cases

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Speaker 1: tell us about the spike in cases. By all accounts,

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Speaker 1: it's been a huge increase this year. So far, there've

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Speaker 1: been about thirty reports of unruly passengers. They sort of

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Speaker 1: run the gamut, but by and large, the biggest category

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Speaker 1: is some form of people not wanting to wear their

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Speaker 1: based mask, which are now required, so either objecting to

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Speaker 1: wearing the mask or not wearing it properly, or becoming

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Speaker 1: abusive to the flight attendants after they ask you to

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Speaker 1: wear the mask. That seems to be one of the

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Speaker 1: biggest common denominators. There also has been a thread. A

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Speaker 1: lot of these events occurred just before and just after

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Speaker 1: the January six storming of the US capital, and so

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Speaker 1: there's kind of a political thread that runs through this

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Speaker 1: phenomenon as well. In some cases, people are escorted off

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Speaker 1: flights for voicing political views loudly and that sort of

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Speaker 1: thing and sing. So do people actually get arrested who

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Speaker 1: arrest them? Well, that's one of the issues that makes

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Speaker 1: it difficult is that the federal government by and large

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Speaker 1: overseas the aviation industry, and that's largely the case when

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Speaker 1: it comes to behavior on a plane, but with only

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Speaker 1: a rare exceptions, there are no federal agents at airport,

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Speaker 1: so it tends to be some sort of a local

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Speaker 1: police force. Each airport is different. You know, sometimes they

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Speaker 1: have their own police force at the airport, but often

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Speaker 1: it's a state or local entity in which the airport

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Speaker 1: is located. So they will escort people off aircraft. At times,

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Speaker 1: they'll make an arrest, but you know, if the activity

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Speaker 1: occurred in flight, it may not even be in that

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Speaker 1: police force's jurisdiction, and so they may have limited ability

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Speaker 1: to bring charges. We have seen cases where the plane

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Speaker 1: is parked at the gate and the door is open

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Speaker 1: and there's an assault on a plane, for example, that

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Speaker 1: may fall under the local police's jurisdiction. But generally speaking,

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Speaker 1: when the doors are closed and the plane has hold

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Speaker 1: back and begin taxing to the runway, and then also

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Speaker 1: obviously in flight, it becomes a federal issue, and so

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Speaker 1: the powers of the local police are somewhat limited. What

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Speaker 1: about the f A A. Why aren't they handling these cases,

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Speaker 1: So that's a very good question. The f a A,

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Speaker 1: I think it's fair to say, is the entity that

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Speaker 1: jumped in most aggressively here to try to stem the

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Speaker 1: stig increase. But they only have civil powers, so they

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Speaker 1: can't bring criminal charges. But they have initiated enforcement actions

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Speaker 1: and what that allows them to do is to collect

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Speaker 1: fine But they're not a police force and they don't

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Speaker 1: have legal authority to bring any of them. So when

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Speaker 1: there's an incident, let's say, where there is a physical

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Speaker 1: altercation and someone gets injured, what happens in those cases

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Speaker 1: are charges brought? Well, it sort of runs the gamut,

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Speaker 1: But there's a big distinction to be made between two

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Speaker 1: passengers fighting each other, which you know is obviously serious

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Speaker 1: and could injure other people. But that's distinct from a

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Speaker 1: passenger hitting and or otherwise interfering with the work of

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Speaker 1: a flight crew that is governed by federal statute and

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Speaker 1: carries the penalty up to twenty years by the serious offense,

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Speaker 1: I would say they rarely charge people who aren't terrorists

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Speaker 1: with that charge to the fullest extent. But we checked

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Speaker 1: the federal docket around the country and there were a

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Speaker 1: total of twelve cases filed under that statute this calendar

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Speaker 1: year so far. How difficult are these cases for federal

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Speaker 1: prosecutors to make? These are cases where the witnesses all dispersed.

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Speaker 1: You may get statements from flight attendants, but they likely

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Speaker 1: weren't obtained from a trained, you know, FBI agent or

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Speaker 1: somebody who knows what's needed to bring a prosecution. And

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Speaker 1: then it may also require tracking down other passengers who

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Speaker 1: are witness says, so it can take quite a bit

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Speaker 1: of effort to put a case together. Has there been

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Speaker 1: a push recently to have more passengers criminally charged? Yes,

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Speaker 1: so the airline industry and that includes their unions. The

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Speaker 1: flight attendant unions in particular on the front lines having

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Speaker 1: to deal with this, wrote a letter to the Justice

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Speaker 1: Department last month asking that they take more action to

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Speaker 1: bring charges. Attorney General Merrick Garland was asked about this

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Speaker 1: at a Senate hearing last month, and he said that

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Speaker 1: at least the most egregious cases are clearly criminal matters,

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Speaker 1: not civil, And he said he's still developing a policy,

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Speaker 1: but that they did take it seriously. You know, it's

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Speaker 1: hard when you have such a small number of cases

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Speaker 1: to see any actual trends. I think it's fair to

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Speaker 1: say that so far this year, the number of cases

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Speaker 1: brought at least under the statute for interfering with the

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Speaker 1: flight attendant is about the same as they've seen the

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Speaker 1: past two years. They ranged from about six team to

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Speaker 1: twenty cases per year. Thanks Alan. That's Alan Levin, Bloomberg

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Speaker 1: News Aviation reporter. The US Justice Department will investigate the

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Speaker 1: City of Phoenix and its police department for potential civil

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Speaker 1: rights violations, including sweeps of homeless encampments, the third such

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Speaker 1: investigation of policing since President Joe Biden took office. Joining

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Speaker 1: me is David Harris, a professor at the University of

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Speaker 1: Pittsburgh School of Law and host of the Criminal Injustice podcast.

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Speaker 1: So why is the Justice Department launching this civil investigation?

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Speaker 1: The Civil Rights Division and the federal government can't investigate

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Speaker 1: any old police department and things might be doing a

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Speaker 1: better job than it is. The only reason that they

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Speaker 1: can launch these investigations is if they think that there

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Speaker 1: may be a pattern of constitutional violations here. This is

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Speaker 1: certainly true with the investigation launched of Minneapolis Police and

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Speaker 1: Louisville Police, and here they have information that leads them

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Speaker 1: to think that there is a pattern of constitutional level abuse.

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Speaker 1: So they do this not because there's one bad incident

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Speaker 1: or one bad shooting, or even a couple. They do

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Speaker 1: this because they see a pattern of violations of constitutional rights.

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Speaker 1: In the case of the police departments that they've recently

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Speaker 1: investigated it in a similar way. In Minneapolis, the death

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Speaker 1: of George Floyd was a motivating factor, and in Louisville,

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Speaker 1: the shooting of Briana Taylor was a motivating factor. This

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Speaker 1: is based on whether law enforcement is violating the rights

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Speaker 1: of homeless people in Phoenix by seizing and disposing of

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Speaker 1: their belongings. That's the headline allegation at this point, But

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Speaker 1: the Justice Department made it clear that that wasn't the

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Speaker 1: only thing that they were looking at. They were looking

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Speaker 1: at us as a four. They were looking at the

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Speaker 1: way that the Phoenix police have handled demonstrations and a

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Speaker 1: number of other things. The things that they have in

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Speaker 1: common is that all of them are potential violations of

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Speaker 1: constitutional rights. So it's not a matter of not following

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Speaker 1: best practices or making a mistake here and there. It's

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Speaker 1: a matter of finding a pattern of constitutional level wrongdoing.

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Speaker 1: In the case of Phoenix. The thing that apparently drew

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Speaker 1: the most attention from law enforcement perspectives was the way

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Speaker 1: that the city was dealing with its homeless population, sweeps

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Speaker 1: through homeless encampments and so forth. It sounds like what's

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Speaker 1: happening in the other cities that they've chosen to investigate

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Speaker 1: is more serious then what's happening in Phoenix. Now. Is

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Speaker 1: that just because there's other reasons or is that because

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Speaker 1: it is less serious? Well, I think the important thing

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Speaker 1: to look for is not the seriousness of the sort

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Speaker 1: of headline incident that might have attracted notice in the

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Speaker 1: first place. Uh, even one very bad in custody death

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Speaker 1: or shooting is not enough to allow the federal government

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Speaker 1: to have jurisdiction over a local police department. What they're

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Speaker 1: looking for is a pattern of use of force, a

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Speaker 1: pattern of bad search warrant executions like they had in Louisville.

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Speaker 1: It's that pattern that makes the difference. The fact that

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Speaker 1: we the public might know about just one important bad

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Speaker 1: incident isn't what really brings in the justice department. It

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Speaker 1: might attract the attention of the Justice department first, but

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Speaker 1: the thing that keeps them there and that gives them

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Speaker 1: jurisdiction is the existence of a pattern of constitutional violations.

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Speaker 1: That can be stopping frisk, that can be the use

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Speaker 1: of force, that can be uh the way that people

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Speaker 1: are prosecuted, the way that complaints are handled. As long

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Speaker 1: as there's a pattern of constitutional violation, it doesn't require

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Speaker 1: the most serious kind of catastrophe like the death of

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Speaker 1: George Floyd. What's important is whether or not there's a

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Speaker 1: pattern of violation of the constitution. If you have that,

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Speaker 1: it's enough to give the Justice Department jurisdiction. What I

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Speaker 1: found interesting was that Attorney General Merrick Garland said, too

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Speaker 1: often we asked law enforcement officers to be the first

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Speaker 1: and last option for addressing issues that should not be

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Speaker 1: handled by our criminal justice system. Well, it's very interesting

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Speaker 1: to hear how he talked about it, because what it

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Speaker 1: was was an acknowledgement of what many of us have

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Speaker 1: come to understand really only in the last year, and

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Speaker 1: that is we look at police as the answer to everything,

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Speaker 1: and they're clearly not. They're not trained to respond to

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Speaker 1: mental illness and mental health crisis. They're not really trained

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Speaker 1: to respond the crises of homelessness or drug addiction, and

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Speaker 1: too often they're the only agency in any given city

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Speaker 1: that may be available to do those sorts of things,

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Speaker 1: and they're given those tasks, even though we could easily

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Speaker 1: imagine that an agency made up of social workers or

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Speaker 1: other kinds of people would be better suited to these

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Speaker 1: kinds of tasks. Police or police, they're going to use

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Speaker 1: the tools that they know and the training that they have.

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Speaker 1: And so what Garland is saying is that he's acknowledging

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Speaker 1: that maybe police weren't the right ones to do this.

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Speaker 1: Maybe it's not their fault that they got sent in

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Speaker 1: like that, but in any case, since they were there

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Speaker 1: and they were given that job, the end result may

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Speaker 1: have been a pattern of constitutional violation. So it's a

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Speaker 1: way of talking and addressing a problem that acknowledge the

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Speaker 1: difficulties that law enforcement has been forced to confront that

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Speaker 1: maybe aren't really in its wheelhouse, and then aren't the

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Speaker 1: best suited for police? We should have other agencies doing that.

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Speaker 1: What do they do when they go in joing these investigations?

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Speaker 1: How are they better suited? Then, Let's say in an

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Speaker 1: internal investigation by the local police department. The first thing

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Speaker 1: is that they are independent of local law enforcement and prosecution.

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Speaker 1: And if there is a long standard standing pattern of

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Speaker 1: constitutional violation of unconstitutional policing. Typically, people uh in the

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Speaker 1: jurisdiction would not trust an internal investigation of the police

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Speaker 1: investigating themselves. That's one of the reasons that we have

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Speaker 1: civilian oversight in many cities of this country. So Number

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Speaker 1: one is that they are independent of any of the

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Speaker 1: local actors. Number Two, they do a comprehensive review. They

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Speaker 1: talked to the public, they talked to officers, they talked

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Speaker 1: to the command staff, and you better believe that they

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Speaker 1: get every document out of that police department that might

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Speaker 1: shine a light on current practices and patterns, so that

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Speaker 1: they really understand what has gone on in the past,

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Speaker 1: what the structures are, why things are functioning or not

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Speaker 1: functioning the way that they are. So it's a very

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Speaker 1: deep and comprehensive look at how the department is operating

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Speaker 1: on a day to day basis, month to month and

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Speaker 1: year in and year out, so that they have a

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Speaker 1: full and complete picture. And they do this with input

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Speaker 1: from all of the stakeholder groups you can think of,

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Speaker 1: from the public to the inside of the police department

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Speaker 1: to the police union. I think in the past, and

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Speaker 1: I say this from the point of view of Pittsburgh,

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Speaker 1: having been the very first, very first big city to

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Speaker 1: undergo one of these consent decree back in nine In

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Speaker 1: the past, they wouldn't do such a thorough job. They

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Speaker 1: wouldn't talk to all the stakeholders, they might not talk

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Speaker 1: to the public, and therefore they didn't always come up

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Speaker 1: with the best answers. They have a much wider view

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Speaker 1: of things now. Uh, they want to take into account

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Speaker 1: everybody's a point of view. Uh, they want to know

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Speaker 1: the full picture of what's happening. It sounds really intense.

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Speaker 1: How long do these investigations take. They can take a while.

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Speaker 1: It depends on the degree of cooperation that they get

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Speaker 1: from the municipality and from the police department. UM. It

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Speaker 1: depends on what kind of resistance they might be internally

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Speaker 1: in the police department UM, and how many stakeholder groups

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Speaker 1: they figured they need to talk to. Already, I was

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Speaker 1: reading that in Minneapolis and in Louisville, where they've been

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Speaker 1: working on this already for some months, they've talked to

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Speaker 1: something like a thousand different people in each of those aces.

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Speaker 1: So you'd expect an investigation that will last month. The

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Speaker 1: most important thing is that they be through and that

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Speaker 1: they get it right. Uh, so that they can come

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Speaker 1: out of it with the comprehensive plan for rebuilding, reinforcing,

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Speaker 1: even recreating the necessary structures to give the people of

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Speaker 1: Phoenix policing that obeys the Constitution and that gives them

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Speaker 1: the kind of public safety service that they need. So

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Speaker 1: they take the time that that that they need. If

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Speaker 1: there's more resistance, it takes more time. Since Garland became

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Speaker 1: the a G in March, there are three civil rights

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Speaker 1: investigations of police undertaken by the Justice Department. What does

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Speaker 1: that signal? Is it too much too soon? No? I

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Speaker 1: don't think so, Because the incidents and the precipitating events

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Speaker 1: in both Louisville and Minneapolis told you from the first

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Speaker 1: minute of the new administration that there would be pattern

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Speaker 1: of practiced investigations in those cities. I think that was

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Speaker 1: a total non surprise. This is really the first one

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Speaker 1: if you look at it that way, and uh, launching

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Speaker 1: the first one in the first few months of the administration. No,

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Speaker 1: I don't think that's too much too soon. I think

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Speaker 1: that we should expect more of these. We know that

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Speaker 1: the Trump administration basically shut this process down entirely. Former

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Speaker 1: Attorney General Jeff Sessions went into that job announcing, well

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Speaker 1: known as an opponent of these investigations, that there was

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Speaker 1: going to be no more of this stuff. He considered

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Speaker 1: it wrong, even though the federal statute that authorizes it,

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Speaker 1: and Attorney General Bill Barr was really no better. And

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Speaker 1: so it's not a surprise at all that we have

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Speaker 1: the first of these in Garland's first few months, along

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Speaker 1: with the totally expected investigations into Minneapolis and Louisville. So

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Speaker 1: in the past it usually ends up being a consent decree.

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Speaker 1: How have these worked out in the past. Have some

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Speaker 1: of them worked better than others? Yes, in a word,

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Speaker 1: absolutely yes, some of them. The process has been much

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Speaker 1: longer than anybody would hope. In at least one case,

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Speaker 1: New Orleans, they needed a second intervention when the first

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Speaker 1: proved inadequate. Here in Pittsburgh, where I live, the first

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Speaker 1: consent decree to ever be done in a big city.

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Speaker 1: UH did a lot for the police department in those

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Speaker 1: five years that it was in effect. But within just

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Speaker 1: a couple more years there had been a turnover of

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Speaker 1: mayors and police chiefs and so forth, and there were

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Speaker 1: very few people in the higher echelon divided the police

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Speaker 1: chief of the city that was very committed to the

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Speaker 1: agreement anymore, and therefore it kind of fell away. In Cincinnati,

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Speaker 1: it did really train insform that police department, and it's

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Speaker 1: a much better police department than it used to be

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Speaker 1: even now almost twenty years later. So it you know,

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Speaker 1: some of them have been more successful than others. I

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Speaker 1: think that's fair to say. Are they costly, Yes, they

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Speaker 1: are um but the price of unconstitutional policing people need

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Speaker 1: to remember that has a price too. It has a

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Speaker 1: price in the confidence of people in their police department,

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Speaker 1: their belief that the police department is legitimate and is

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Speaker 1: on their side. And then of course the millions and

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Speaker 1: millions of dollars that many cities have to pay when

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Speaker 1: police officers violate the law in the constitution. They have

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Speaker 1: to pay those and damage it. So any thoughts about

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Speaker 1: the cost of these things in the length of time

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Speaker 1: they take, you have to compare that to not doing them. Uh,

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Speaker 1: And there is a substantial cost to lack of intervention

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Speaker 1: as well. Thanks so much for being on the show, David.

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Speaker 1: That's David Harris. He's a professor at the University of Pittsburgh.

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Speaker 1: Law school and host of the Criminal Injustice podcast. Remember,

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Speaker 1: you could always at the latest legal news on our

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Speaker 1: Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot bloomberg dot com, slash podcast, slash Law.

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Speaker 1: I'm June Grosso and you're listening to Bloomberg