You Cannot Film the Police in Germany

The German press is fascinated and disturbed by videos of American police using excessive force, like the one above.

Why do these videos exist? Because in the United States, it is every citizens' constitutional right to film the police doing their job unless they are interfering with police work:

Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.

Police often tell people to stop filming, but those cops don't know the law. Unless the videos are obscene, you can post those videos to the Internet with full constitutional protection, and that's exactly what people do. They are then played over and over on German websites.

Can you film cops arresting people in Germany and then post that video straight to the Internet? The short answer is: absolutely not. The somewhat longer answer is: Sure, you can do it, but you could well be sued for tens of thousands of Euro, and have to wait for a court decision about whether the public interest in publishing the video was stronger than the privacy rights of the people displayed.

The crucial background to know about this issue is that German law gives people powerful protections over the use of their own image and voice and the protection of their privacy -- legal protections which most Germans appreciate, and which don't exist to anywhere near the same extent in the US. The question then becomes whether police officers doing their jobs in public enjoy these same protections. Many German courts have held that they do.  

Marvin Oppong, a journalist for the 'torial' (g) blog in Germany who wanted to film his own questioning by police decided to look into the matter in detail. He interviewed several lawyers nad journalists. Here's a summary of what he learned:

  • Can you take pictures of the police? German courts are all over the place on this issue. Some say this is basically allowed in public spaces. It also depends on where. Inside buildings such as train stations you may be prohibited from doing so because of station rules. According to other decisions, the police can also request that you delete the photos or promise not to distribute them in any way or they will sue civilly. 
  • Can you video record your own encounters with the police? Yes, unless it interferes with their work. However, you may face civil or criminal liability if you distribute the results in any way without the officers' consent, since they have a right to control the distribution of their own image. Recording their voices is only permissible in a 'completely open and public' situation. If that is not the case, then simply recording their voices is actually a crime bringing up to three years' imprisonment. You read that right: if the situation is not deemed public (whatever that means), merely recording someone's spoken words is itself a crime. If the policeman knows you are recording his voice and doesn't object, that may be a defense. 
  • Can you publish photos and videos of a police encounter on the Internet? No: German courts have held that publishing videos of a police officer's conduct on the internet creates a 'pillorying' effect that violates the police officer's right to the protection of his personality (Persönlichkeitsrecht in German). This is so even though you are filming the officer doing his or her job in public. You may be able to publish general photos of public events, but a photo that clearly focuses in on one officer will violate that officer's right to control over the distribution of their own image. Which means you will need the officer's permission to publish it.
  • Can police ask you to identify yourself if they see you filming them? Basically, yes. They can also bring you to the police station for questioning if you don't have any personal ID with you.
  • Are the rules different for journalists? Possibly. If they are filming an incident of public importance, they may be able to claim that their right to do their job outweighs the officers' rights.

So, to sum up: if you are a private citizen and see German police officers engaging in questionable conduct in public and post a video of that in the Internet -- as Americans do hundreds of times every day -- you will enter a legal minefield of contradictory court precedents. You will probably expose yourself to tens of thousands of euros in damages as well as possible criminal prosecution. Your only hope is if a court, in your specific case, finds that the public interest served by your publishing the video outweighed all of the restrictions German law places on taping and photographing people. Even police officers doing their job in public.


Projection and Discrimination

The reason I'm posting a lot about criminal justice stats recently is first because I find it interesting but also because I'm working on a piece about German (and perhaps also French) coverage of crime in the USA. 

Specifically, and not to put too fine a point on it: (1) the fact that German reporters, out of ignorance or prejudice, use bogus statistics to exaggerate claims of discrimination in the American justice system; and (2) the reason for this is projection: ("a theory in psychology in which humans defend themselves against unpleasant impulses by denying their existence in themselves, while attributing them to others. For example, a person who is rude may constantly accuse other people of being rude.").

Specifically, the thesis is that German and French journalists are (whether consciously or not) distracting their readers from the problems in their own criminal justice systems by projecting discrimination onto the USA. I don't know, that formulation's pretty edgy, but sometimes edgy is fun!

Still in the research phase, but I'll let you know if I can get a German press outlet to publish it.


The Necessary Context on Black Crime Rates

M6227a1f3(source: U.S. Centers for Disease Control)

The mere fact that blacks are overrepresented in American prisons relative to the population does not even come close to proving the American justice system is racist, because:

One of the most well-known statistics pertaining to the criminal justice system is that a disproportionate amount of African American males are arrested, convicted, and incarcerated. Although the precise estimates vary across studies and reports, in general African American males are arrested at a rate (relative to their proportion of the population) several times that of White males, with these racial differences being quite robust across a wide range of offenses, including property offenses and drug-related offenses (Cooper, Fox, & Rodriguez, 2012; Peterson, 2012; Sampson & Wilson, 2005; Steffensmeier, Feldmeyer, Harris, & Ulmer, 2011; Tonry, 2010). This disparity is even more pronounced when examining the most serious and violent types of criminal acts (Chan, Myers, & Heide, 2010; D’Alessio & Stolzenberg, 2003; DeLisi, Dooley, & Beaver, 2007; Gabbidon, Higgins, & Potter, 2011; Tapia, 2010; Tillyer & Hartley, 2010; Tonry, 2010). In short, no matter how the data are cut, no serious criminologist, sociologist or any other academician interested in the topic can deny that African American males are much more likely to be processed through the criminal justice system than are White males.

Where opinions differ sharply, however, is in regard to the exact mechanisms that predict disparities in criminal justice processing. While several causal pathways have been proposed, the explanation garnering the most attention from scholars is that of a racially biased justice system (Kennedy, 1997; MacDonald, 2003; Wilbanks, 1987). More specifically, the null hypothesis, so to speak, has been that of a system which unduly targets racial minorities, especially African Americans. Certainly there is evidence pertaining to the increased likelihood of African American males (in particular) being stopped, questioned, arrested and ultimately sentenced by the criminal justice system (Blumstein, 1982; Carmichael, 2010; Kennedy, 1997; Peterson, 2012; Tonry, 2010; for some dissenting evidence, however, see Franklin, 2010, as well as, Tracy, 2002).

This is the introduction to an article with the self-explanatory title: No evidence of racial discrimination in criminal justice processing: Results from the National Longitudinal Study of Adolescent Health, published in the peer-reviewed journal Personality and Individual Differences. Many commentators seek to explain higher crime rates among American blacks as a product of discriminatory enforcement, so the authors decided to look at self-reports of behavior given as part of a huge anonymous US federal study. They found that self-reporting closely tracked official crime statistics. The authors of course note that self-reporting has limitations, but they observed that (1) since the study was anonymous, participants were unlikely to be distorting their answers to influence peers, and (2) in any case, people asked to report on their own antisocial behavior consistently understate it, for reasons that should be obvious to everyone.

Nevertheless, the amount of criminal activity reported by blacks was largely in line with statistical evidence of higher proportions of blacks being processed through the justice system. I wouldn't go so far as to absolve the US criminal justice system of all discrimination, but merely citing the over-representation of one group in US prisons without this vital context is misleading and German journalists should stop doing it. Nor, for that matter, should American journalists conclude from the fact that 27% of all German prisoners are foreigners (g) that the German criminal justice system is biased.


American Law Professor Wants to Keep the Death Penalty

The perennial question from Europeans: Why does a 'civilized' nation like the USA hang on to a barbaric punishment like the death penalty? If I am in the mood, I reel off my 5-pronged answer (sometimes I miss a prong or add a few, depending on level of drunkenness).

One of those prongs is that in Europe, the entire law professoriate, and the entire educated class, is uniformly against capital punishment, with trivial exceptions. They act as elite opinion gatekeepers, making sure no pro-capital punishment arguments are ever aired in the mainstream media. Even Germany's leading tabloid, Bild, has always been against capital punishment.

Not so in the USA. Staying with the New York Times, here's an op-ed from William Baude, an assistant professor of law at the University of Chicago. He's commenting on a recent court decision, Glossip v. Gross, in which liberal Justices Breyer and Ginsburg advocated abolishing the death penalty in the USA: 

Next let’s turn to Justice Breyer, who argues that it is “highly likely” that the death penalty as a whole violates the Eighth Amendment, because it is unreliable, arbitrary, slow and rare. This argument went well beyond the specific challenge to the use of the midazolam that was the focus of the case. Rather, Justice Breyer explained that he would stop trying “to patch up the death penalty’s legal wounds one at a time” and likely bury the whole thing. Justice Breyer (whose opinion was joined here by Justice Ruth Bader Ginsburg) is the first member of the current court to call for such a radical step.

We should not be too quick to embrace Justice Breyer’s thinking. If his conclusion is something other than a personal moral intuition, it rests on deeply contested claims about the accuracy, goals and costs of the death penalty. And while Justice Breyer’s dissent advanced extensive evidence for his claims, they are nonetheless claims that are hard for a judge, even a Supreme Court justice, to resolve dispassionately. Moreover, even if those claims are proved true, the more appropriate judicial course would be to invalidate the problematic parts of the system, not the system as a whole.

If we reject the broad legal claims of both Justices Scalia and Breyer, what is left? The court’s job is to continue resolving the fact-specific claims that a given punishment is cruel and unusual, even if that means that the court must only “patch up the death penalty’s legal wounds.” And the bigger question that Justice Breyer would have us confront — whether our death penalty system is necessary or oppressive — is best left to the states and the people.

Note that Baude himself never states his own preferred position on capital punishment, except that it should be 'left to the states of the people'. A German law professor might well consider this pusillanimous, but of course you could also call it admirably restrained.


Credit Where It's Due: German Law Protects Gays in the Workplace

WorkplaceDiscrimination

A few days ago I pointed out the weak provisions of the German non-discrimination law on housing discrimination. It's only fair, though, to point out that the same law does prohibit discrimination in the workplace based on sexual orientation (g). It's still very difficult to prove a case and win damages in Germany based on the AGG, but at least the principle is there.

The US Congress has tried to enact the same protections many times over in a bill called the Employment Non-Discrimination Act, but failed. You need the House of Representatives and the Senate to pass the bill, and the President to sign it. So far, all three of those stars have not yet lined up in the right constellation, so the bill is not yet law. Many states have passed laws prohibiting discrimination against gays in the workplace, but 29 states still allow it.

I suspect a federal law might actually pass in the next 5-10 years. All you would need to do is get 10-15% of Republicans to vote for it and you would have it. (You would also need a Democratic President, of course.) I can't believe I'm saying this, but I think the change on this issue has been so dramatic in the last few years that getting 10-15% of Republicans is just possible.


Housing Discrimination There and Here

Yesterday the U.S. Supreme Court decided Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case about the Fair Housing Act, a law passed by Congress in 1968 to combat housing discrimination:

De jure residential segregation by race was declared unconstitutional almost a century ago, but its vestiges remain today, intertwined with the country’s economic and social life. Some segregated housing patterns can be traced to conditions that arose in the mid-20th century. Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation’s cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races…

In April 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission’s recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of “race, color, religion, or national origin.” Civil Rights Act of 1968….

The question before the court was whether the FHA can be used for claims of ‘disparate impact’ – that is policies that have the result of affecting minorities and whites differently, even though there is no proof that the policymakers’ intention was to discriminate on the basis of race. The specific case here involves a federal rent-subsidy plan (Section 8) for poor families. The plaintiffs claimed that Texas agencies were contributing to residential racial segregation by steering minority Section 8 recipients to areas that were already disproportionately minority. The Plaintiffs had no proof that this was being done intentionally, so sued under disparate impact. The Supreme Court held that since most other American anti-discrimination laws can be used in this way, so can the FHA:

Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies.  The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.

So the United States already had a nationwide law prohibiting private housing discrimination in 1968, and has interpreted both it and similar laws to cover even discrimination that occurs unintentionally.

Let’s turn to Germany. German jurists will point out that the Article 3 of the German federal constitution (the Grundgesetz) prohibits racial discrimination on the part of the state, and that this provision can, in limited circumstances, be applied to transactions between private parties (the idea of so-called Drittwirkung). In practice, however, this possibility is practically irrelevant and is rarely-used. This is one reason the EU constantly prodded Germany to adopt a comprehensive, modern anti-discrimination law. Germany resisted until finally, in 2006, it adopted what’s known as the Allgemeines Gleichbehandlungsgesetz (AGG) or Equal Treatment Law. It was originally known as the Anti-Discrimination Law, but the title had to be watered down.

So what are the housing-discrimination provisions of the AGG? Here’s a short website (g) from a law firm that explains things pretty well. The main provision outlaws discrimination by private landlords on the basis of “race, ethnic ancestry, sex, religion or worldview, disability, age, or sexual identity”. Gosh, that sounds mighty progressive, you might be saying.

But actually, there are quite a lot of exceptions! For instance, if you’re renting a portion of the residence you currently occupy, you aren’t bound by the AGG at all. Seems reasonable enough. But then we get to a rather bigger loophoole: the so-called ‘small landlord’ exception. This provides that the full terms of the AGG do not apply to any landlord who puts on the market fewer than 50 residences. If you own 49 rental properties and are thus a ‘small landlord’ (!!), you are not permitted to discriminate on the basis of race or ethnic ancestry, but you can discriminate on all the other grounds as much as you want. Only when you rent more than 50 residences does the AGG apply in full force.

But wait, there’s more! Turns out there’s a loophole even here: a landlord may refuse to rent to someone in order to preserve ‘socially stable residential population structures’ and to preserve ‘balanced cultural relations’, whatever that means. Ironically, this provision of the law sells itself as an anti-discrimination measure: to prevent large concentrations of foreigners in a certain area, a landlord can refuse to rent to foreigners who wish to come there and live. Of course, the landlord then has to subsidize the rent of the foreigners he discriminated against so they can pay four times higher rent to live in the white part of town. Oh wait, no he doesn’t.

Also, if you want to sue a landlord for damages, you must do so within a 2-month limitations period, which is awfully short. Plus, without access to landlords’ documents through court-ordered discovery, you may have a hard time proving your case.

The doomsayers predicted a wave of litigation after the AGG was passed, but it never happened. Critics call the AGG a paper tiger (g) and have routinely called for it to be strengthened.

Germans take almost-sensual pleasure (g) in denouncing the ‘pervasive racism’ of American society. But the American legal system offers far more powerful tools for combating racial discrimination than Germany does.* In Germany, legal innovations that have long been the law of the land in the USA are still fiercely opposed by all but the most left-wing parties.

 

Continue reading "Housing Discrimination There and Here" »


Headscarf Wearer Wins in US Supreme Court

A perennial chestnut of my comparative-law seminars is the treatment of Muslim women who wear headscarves in the USA and Germany. So my news ticker let me know that a woman named Samantha Elauf just won her case before the Supreme Court, in an 8-1 decision, the New York Times reports. From a Cornell Law School summary: 

In 2008, seventeen-year-old Samantha Elauf, a self-proclaimed practicing Muslim, interviewed for a Model position at an Abercrombie Kids store in Tulsa, Oklahoma.During her interview, Elauf wore Abercrombie-style clothing and a black hijab—a religious headscarf. The assistant manager interviewing her, Heather Cooke, did not confirm Elauf’s religion but “assumed that she was Muslim.” During the interview, Cooke did not ask Elauf about her headscarf and Elauf did not bring it up. Although Cooke thought Elauf was a good candidate, Cooke asked her supervisor if wearing a headscarf was permissible and whether the headscarf could be black. The supervisor escalated this question to the district manager, Randall Johnson, who declared that Elauf’s headscarf violated the Look Policy and Elauf should not be hired. Cooke claims that she informed Johnson that Elauf wore a headscarf for religious reasons but Johnson denies this claim.

On September 17, 2009, the Equal Employment Opportunity Commission (“EEOC”) filed a Title VII action in theUnited States Northern District of Oklahoma (“district court”) alleging that Abercrombie rejected Elauf because she wore a hijab and then failed to make a religious-based exception to its Look Policy. The district court ruled in favor of the EEOC, reasoning that Elauf’s wearing of the headscarf coupled with Cooke’s knowledge that Elauf wore the headwear as part of a religious belief provided sufficient notice of the need for a reasonable religious accommodation, awarding the EEOC $20,000 in compensatory damages.

The issue here was narrow. Since 1964, there has been no debate that a private company cannot refuse to hire someone based on their religious belief or core religious practices. If the company believes there may be a conflict between the employees’ religion and job requirements, the company must first try to find a reasonable accommodation. Simply refusing to hire someone on the basis of their religion is illegal. The only question in this case was whether Elauf told her employer she wore a headscarf for religious reasons.

The court held she didn’t need to prove this, since any reasonable employer would at least suspect that a female wearing a headscarf is probably doing so for religious reasons. Thus even the reliably conservative Justice Antonin Scalia called this case ‘easy’. Justice Clarence Thomas was the only dissenter, hie thinks that (1) because Abercrombie & Fitch had a general policy that its employees can’t wear ‘caps’; and (2) a headscarf is a kind of cap, therefore A & F was simply applying a neutral policy to every job applicant, and wasn’t discriminating.

Decision in .pdf form is here for you law nerds.


Why Does the Reunification Treaty Foreclose Greek Reparations?

The issue of war reparations to Greece is becoming more mainstream in Germany, as Reuters reports some leading SPD and Green figures cautiously suggesting that Germany should re-open the question of reparations.

One of the standard responses of German conservatives (and many Germans who would never consider themselves conservatives) is that the treaty of German re-unification, the so-called 2 + 4 treaty of 1990, forecloses the issue of Greek reparations. But I have yet to see an actual argument showing this -- generally there's just a bunch of hand-waving about how it was all settled in 1990, Greece 'accepted' this outcome back then, which now means it's irresponsible for Greece to try to reopen this can of worms. Frankly, the only convincing argument I've read is Helmut Kohl's statement that Germany caused so much suffering during World War II that any reparations sum that might be at all proportionate would bankrupt Germany for all eternity.

I've looked, but have yet to find any argument about why the 1990 treaty should affect Greece's reparations claims, except for the suggestion that since Germany only officially 'surrendered' to the four Allied powers in 1990, only these countries could legally claim reparations. But I don't really understand that reasoning, either.

Can anyone point me to something convincing? 


Bleg: Help me Catch a Cannibal Murderer!

WARNING: A confessed murderer and cannibal is on the prowl in Japan! Here's an interview with him:

Everyone knows who he is, actually. In fact, he's a minor celebrity. So I really want you to help me catch an article about a cannibal murderer. 

The cannibal murderer is Issei Sagawa, a soi-disant Japanese intellectual who killed and ate a woman in Paris in 1981. This is what happened to him afterward, according to you-know-who:

Sagawa's wealthy father provided a lawyer for his defense, and after being held for two years without trial Sagawa was found legally insane and unfit to stand trial by the French judge Jean-Louis Bruguière, who ordered him held indefinitely in a mental institution. After a visit by the author Inuhiko Yomota, Sagawa's account of the murder was published in Japan under the title In the Fog. Sagawa's subsequent publicity and macabre celebrity likely contributed to the French authorities' decision to deport him to Japan, where he was immediately committed to Matsuzawa hospital. Examining psychologists there all declared him sane and found sexual perversion was his sole motivation for the murder. Because charges in France had been dropped, the French court documents were sealed and were not released to Japanese authorities. Consequently Sagawa could not legally be detained in Japan. He checked himself out of the hospital on August 12, 1986, and has remained free. Sagawa's continued freedom has been widely criticized.

So, on the surface we have not only a miscarriage of justice, but also quite possibly an example of two different legal cultures defining legal sanity in different and interesting ways. Just the sort of thing that really rings my bell.

Which brings me to the next mystery: an online law journal that seems to have published only a few issues, then vanished! Here is a citation to an article about Sagawa:

  1.  Morris, Steven (September 20, 2007)."Issei Sagawa: Celebrity Cannibal"New Criminologist, the On-line Journal of Criminology (New Criminologist). Archived from the original on June 14, 2011.[dead link]

As you can see, the link is very dead indeed. To add to the mystery, the New Criminologist started a Twitter account (under the logo Vitam Impenderi Vero) which then mysteriously died after only 4 tweets. The journal's online presence seems not just to have gone dormant, but been deliberately erased. Shoved down the memory hole, if you will!

Can anyone find this article for me? As a bonus, can anyone explain what happened to New Criminologist? 


New Documentary on Jens Soering

This is a new German documentary about Jens Soering, the German national who was convicted of a 1985 double-murder and sentenced to life imprisonment in Virginia, where he still is. Here are two trailers, the first in German, the second in English.

Soering's case has a long and complex history. While in England, he fought extradition to the state of Virginia on the grounds that it would violate European human rights law for Britain to extradite Soering to Virginia to face the possibility of capital punishment. The European Court of Human Rights agreed in Soering v. UK. Virginia dropped its demand for the death penalty, Soering was returned, convicted, and now is in prison for life.

He initially confessed to the crime and fled the country. He now claims he's innocent of the crime, but I haven't really been convinced by anything I've read so far. The documentary looks intriguing, I'll post any thoughts as soon as I've seen it.

This is the first and last time I will ever put a trigger warning on this blog, but these videos contain brief shots of crime scene photos with mutilated human bodies, so be advised.